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

John Jay College of Criminal Justice

The City University of New York

New York, New York

 

 Stephen L. Golding, PhD

Department of Psychology

University of Utah

Salt Lake City, Utah

 

Ronald Roesch, PhD

Department of Psychology

Simon Fraser University

Burnaby, British Columbia

Cite as:Zapf, P.A., Golding, S.L., Roesch, R. (2006). Legal, empirical and clinical aspects of the conceptualization and assessment of criminal responsibility and the insanity defense.  In A. Hess & I. Weiner (Eds.) Handbook of Forensic Psychology, Third Edition. Pp. 332-365. New York: Wiley
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; N. Walker, 1978) cannot be approached without a personal decision to accept or reject a rather simple thesis. Belief in this basic thesis is not subject to scientific argument; rather, it is morally axiomatic. That is, one either accepts it as a function of one's fundamental moral, religious, and jurisprudential presuppositions, or one does not. Given the non-provable nature of this moral thesis, scientific and logical argument about aspects of the insanity defense and the assessment of mental state are possible, but acceptance or rejection of the argument is not a matter of proof or science. This fundamental belief may be stated as follows:

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 England since Henry I originated in theological opposition to secular laws of absolute responsibility. This theological opposition was based upon a belief that God could not properly hold an infant, idiot or lunatic justly responsible. It is interesting to note that the age at which children are generally assumed to some degree criminally responsible corresponds to the age within all major religions at which they usually pass through a “certification” ritual where they are deemed morally responsible in the eyes of God. Platt and Diamond (1965; 1966) show, in their historical reviews, that the “furiously” insane have been exempted from moral sanction by an extension of the same logic.

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, Wales makes it clear that the underlying motivation is to eliminate the insanity defense without raising constitutional considerations and to assure that more “insanity-like” acquittees are dispositionally dealt with as guilty first and in need of treatment or mentally ill second. Wales argues that the cases most likely to be acted upon differently are those involving command hallucinations, affective delusions, and various forms of paranoid processes, where it is clear that the defendant acted “knowingly” in the narrow sense of the term, but the “knowingness” was conditioned on delusional, hallucinatory, or otherwise psychotic belief systems.

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 England and the United States. In fact, there was already considerable discomfort with the perceived “narrow scope” of the rule. Isaac Ray (1838/1962) had already published his Treatise on the Medical Jurisprudence of Insanity in which he had attacked the narrowness of such formulations as not according with modern knowledge of the forms of mental disorder and their influence on behavior, affect, and cognition. The same debates that rage today over the scope of what should be included under “knowledge,” “appreciation” and the like were influential in court decisions of the day.

Although the M'Naghten rules were rapidly adopted in the United States, they were almost immediately subjected to challenge on the “narrowness” ground, and were modified significantly by some jurisdictions. In 1844, Chief Justice Shaw of the Massachusetts Supreme Court held that while the “right-wrong” test was proper, a defendant who acted under the influence of an irresistible impulse was not a free agent, and hence was included under the rule because they could not know right from wrong (Commonwealth v. Rogers, 1844). In 1866, this logic was made explicit in Justice Somerville's holding in Parsons v. State (1866),

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 New Hampshire's product test argued that it was a matter of legal fact, to be decided by a judge or jury, whether or not a defendant suffered from a disease of the mind and whether or not the proscribed behavior was a product of that disease. He hence discarded formal rules of specific states of mind, and asserted that it was up to the trier of fact to decide “if [the alleged crime] was the offspring or product of mental disease in the defendant, (then) he was not guilty by reason of insanity” (p. 442). In fact, for a long period of time following M'Naghten, there was considerable controversy over insanity rules that surfaced repeatedly.

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). Rosenberg's scholarly analysis draws out these issues in fine detail, documenting public, legislative and psychiatric reactions that are strong reminders of current debate. Judge Cox's highly elaborate instructions to the jury in Guiteau's trial left little doubt that the central issue before the jury concerned whether the alleged moral insanity and irresistible impulse fit into a straightforward interpretation of the right/wrong test set out in M'Naghten. Whatever the jury may have thought of the “battle of the experts” and the problems of the insanity defense, however, Guiteau placed himself in fatal jeopardy when he exhibited his uncontested egocentrism and interrupted the prosecutor towards the close of the trial objecting, “That is not the issue. The issue is, was my free agency destroyed? I was overpowered. That is what the jury is to pass on” (cited in Rosenberg, 1968, p. 201). His rational comments may have allowed the jury to focus upon his current mental state, a problem which confronts any defendant asserting a retrospective insanity defense.

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 Durham court was that this was not typical practice, and therefore needed to be corrected.

While the Durham product test (“an accused is not criminally responsible if his unlawful act was the product of a mental disease or defect”) was intended to remedy these problems, it was not perceived as having its intended effect and seemed, rather, to make the problem, of undue dominance by experts testifying in conclusory terms, worse. The majority in Brawner therefore adopted the ALI rule and further encouraged judges to adopt instructions that emphasized the importance of non-conclusory testimony and the role of the expert of explaining to the jury the relationship between the defendant's cognitive, behavioral, and affective disturbance and his/her “substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law” (United States v. Brawner, 1972, p. 973 restating the ALI Model Penal Code).

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 Rhode Island (State v. Johnson, 1979).

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 Rogers, Bloom & Manson's (1984) finding that personality disordered defendants, the target of the advocates of abolishing the volitional prong, constituted only 18% of the group of successful insanity acquittees. Citing United States v. Torniero (1984) where the Second Circuit placed appropriate limits on “creative” uses of the volitional prong for new personality disorders by requiring the defense to show that “respected authorities in the field share the view that the disorder is a disease or defect that could have impaired the defendant's ability to desist from the offense charged” (p. 730), the dissenters argue that the volitional prong was an essential aspect of the concept of guilt, since this concept “presuppose(s) a morally responsible agent to whom guilt can be attributed. By definition, guilt cannot be attributed to an individual unable to refrain from violating the law” (United States v. Lyons, 1984b, p. 1000).

The Guilty but Mentally Ill (GBMI) Verdict  

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 Michigan in 1975 in the context of People v. McQuillan (1974), a case which had found Michigan's automatic commitment of NGRI acquittee's unconstitutional. The verdict was also adopted in Indiana in 1979 under similar circumstances. Following Hinckley's assault on President Reagan the stage was set for other states to pass GBMI legislation in response to the perceived abuses of the insanity plea. The current GBMI verdict was not intended to replace the verdict of not guilty by reason of insanity (except in Utah and Nevada). While both verdicts were introduced in order to stem the perceived tide of violence committed by offenders who escape “justice,” the current form was aimed primarily at jurors with the hope that it would allow them a middle ground between guilty and NGRI. It was also motivated by knowledge that an elimination of the insanity verdict itself might be considered unconstitutional as it had been in Strasburg (1910) and Underwood v. State (1873).

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 Criminal Responsibility Assessment Scales (R-CRAS).  The Rogers Criminal Responsibility Assessment Scales (R-CRAS; Rogers, 1984) was designed to quantify the elements of the so-called “ALI” criteria for criminal non-responsibility; however, Rogers also notes that it may be applicable to the M’Naughten standard as well (Rogers & Shuman, 2000).   Based upon a comprehensive evaluation, the examiner rates a series of scales grouped into five areas: (a) reliability of report; (b) organicity; (c) psychopathology; (d) cognitive control; and (e) behavioral control.  For example, the psychopathology section involves ratings of bizarre behavior, anxiety, amnesia, delusions, hallucinations, depressed or elevated mood, verbal coherence, and affective and thought disorder.  In addition, there are a series of more global ratings on final judgments of insanity and impairment.   Thus, the R-CRAS is an instrument that reflects the relative importance assigned by examiners to the first-order elements of an insanity-decision (e.g., the presence and relevance of psychopathology to MSO).   It should be noted that these elements are fairly abstract psychological and legal terms (e.g., “delusions at the time of alleged crime”) and do not necessarily represent the cues that are actually utilized by professional examiners in making their decisions.  This is a major issue of contention between Rogers, Melton et al. (1997), and Golding (1992) in the evaluation of this instrument.  Rogers believes it important to quantify the issue, although it would be unfair to assume that he does not recognize the value of more qualitative data (see Rogers & Ewing, 1992).  Melton and Golding agree that quantification is essentially illusory at this stage in the development of evaluations of criminal responsibility.  Both groups of authors agree, in large measure, on the domain of conceptual elements to be addressed.

            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; Rogers, 1997; Rogers & Shuman, 2000).  Forensic evaluators need to pay close attention to crime scene data, as well as to more traditional sources of “third party” information (mental health and other records, witness statements and the like).  All such sources need to be integrated in as straightforward a manner as possible.  Where limited scientific data exist to support the inference (e.g., descriptive studies of the characteristics of hallucinations or delusions), they should be referenced, and where otherwise indicated, the evaluator’s logical link analysis should be declared and scrutinized.

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, Taylor (1985) found that 40% of psychotic defendants acted directly upon delusions during their offenses.  The frequency of nonpathological, but radical, religious and/or political beliefs and the extent of the relationship between these beliefs and violence has not been systematically studied (Taylor et al., 1994).  However, defendants whose criminal acts are related to such fervently held beliefs are clearly plausible candidates for mental state evaluations.

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 Harrow, Rattenbury & Stoll, 1988; Sacks, Carpenter & Strauss, 1974).

            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 reus”) is linked, by virtue of their plea, to their mental disorder they are unlikely to be released until their mental disorder is quite well under control.  Furthermore, as illustrated in Jones and Foucha, they can be committed and held for what amounts to an indeterminant length of time (that is, until no longer deemed “dangerous”).

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 California (134.0) and Florida (110.5) had the highest average number of insanity acquittals per year and that New Mexico (0.0) and South Dakota (0.1) had the lowest, with six states reporting no more than 1 insanity acquittal per year.

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 Connecticut, very few individuals were likely to be released conditionally, regardless of their characteristics.  In New York, however, demographic characteristics were most predictive of conditional release--females, Whites, and high school graduates were most likely to be conditionally released.  In Maryland, clinical outlook was the most critical variable, with those defendants having diagnoses of schizophrenia being significantly less likely than those with other major mental illnesses to be granted conditional release.  In Ohio, nature of the crime was the most significant predictor, with serious offenders being less likely to be released.  It is somewhat concerning that in New York, the variables most predictive of conditional release were related neither to crime characteristics nor to psychiatric variables.

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 Hinckley’s acquittal to narrow the language of the American Law Institute standard (ALI, 1962), thereby curbing the number of insanity verdicts (by eliminating the “volitional prong”).   In an analogue study, Finkel (1989) found no verdict differences among mock jurors who were given IDRA instructions, ALI instructions or very narrow “wild beast” instructions (Arnold’s Case, 1724; cited in N. Walker, 1978).

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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