The assessment of criminal responsibility: An historical approach
to a current controversy
Stephen L. Golding, Ph.D.
Department of Psychology
University of Utah
Salt Lake City, Utah
and
Ronald Roesch, Ph.D.
Department of Psychology
Simon Fraser University
Burnaby, British Columbia
In I. Weiner and A. Hess (Eds.),
Handbook of forensic psychology
New York:Wiley
1987, Pp. 378-394
The complex of arguments, philosophical debate, opinion, and data on the insanity defense (see particularly Gray, 1972; Hermann, 1983; Pasewark, 1981; Platt and Diamond, 1965, 1966; Smith,1981; Walker, 1968) 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 and 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].
Thus, this chapter will not attempt to address the logically prior moral question about the "insanity defense" -- whether or not it "should" exist -- since 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 is surely not limited to, the structure of our criminal law. Rather, the critical questions for the behavioral sciences are, in a sense, much more difficult ones. Can one contribute to the understanding of intentionality and responsibility from a legal and scientific perspective? Do we have any scientifically verifiable data or acceptable theories that allow us to draw defensible inferences about intentionality and responsibility? As mental health professionals we are called upon to offer expert testimony and scientifically acceptable data on the relationship between behavioral, situational, medical and psychological characteristics, on the one hand, and a defendant's capacities for intending, cognizing, reasoning, appreciating, and controlling, on the other. Are we able to aid the trier of fact, or are we nothing more than `whores for hire,' as many in the populace and the media seem to believe (Hans & Slater, 1983)?
We hope to demonstrate that, when forensic psychological data are properly obtained and presented, they have an important role in the adjudication of the insanity defense. The scientific underpinnings are there, and the task is one of both expanding the empirical and observational data base and bringing modern psychological knowledge to bear on the issue of appropriately and justly ascribing degrees of responsibility. On one end of the responsibility continuum are those mentally disordered individuals who would be inappropriately and unjustly punished for losing control over impulses, cognitions and the distinction between reality and fantasy as a result of overwhelming internal forces. The result for this class of individuals is the loss of the capacity to choose their actions in a manner which society deems accountable. On the other end of the spectrum is what society deems moral weakness or, in the extreme, simple evil. Psychological knowledge plays a critical, but non-conclusory role in the moral judgments which distinguish points on this continuum.
In outlining the role that forensic mental health professionals can play in this judgment process, we have chosen to focus upon the following major areas: a) a review of the historical and jurisprudential roots of culpable mens rea; b) an overview of the major insanity defense tests with special attention to the historically recurring problems and controversies; c) an examination of the movement to reform the insanity defense, particularly by adopting "guilty but mentally ill" verdict options or abolishing insanity as an affirmative defense; d) an examination of the particular controversy over the role of the expert witness; e) a review of more "modern" approaches to shaping the data base upon which such testimony is based; and f) a sampling of certain current ethical problems and professional issues, such as the limits of confidentiality in insanity evaluations, the use of videotaped interview.
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, p. 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 originates 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 general 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 the 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," "purposely," and the like. 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 (Wales, 1976). 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, the typical language being, "It is a defense ... that the defendant, as a result of mental illness, lacks the mental state required as an element of the offense charged. Mental illness shall not otherwise constitute a defense ..." (Utah Code, 1983).
At present this approach is followed in Utah (as noted) and in Montana and Idaho, although numerous attempts have been made to introduce similar approaches in other state legislatures and in Congress. The Montana approach has recently survived constitutional challenge in the Supreme Court of Montana (State v. Korell, 1984), where the Court held that no constitutional right to an insanity defense existed, but that it was necessary for the prosecution to prove each element of the crime charged, including mens rea elements, beyond a reasonable doubt. However, the Court also observed that a defendant who acted intentionally but delusionally (e.g. under instructions of God, or believing that he was some special person) would not have difficulty being acquitted since he "need only cast a reasonable doubt in the minds of the jurors that he had the requisite mental state" (State v. Korell, 1984, p. 1000). Reading between the lines, the Court is implying that the concept of "narrow mens rea" would be expanded to fit an underlying sense of justice in such cases. Absent empirical studies, it is completely unclear what actual effects such a confusing set of standards has on the functional adjudication of insanity acquittees. In a curious argument, the Court also held that Korell's rights were protected, because, after having been found guilty, his mental illness could be a mitigating condition, and he would not be subject to imprisonment if, at sentencing, he were found unable to appreciate the criminality of his act by the ALI-like standard found in Section 46-14-312(a) of the Montana Code.
From the forensic examiner's point of view, it is not clear what effect a more narrow interpretation of mens rea will have. In the first place, there are no empirical studies that would allow one to infer how many individual's found ngri under a certain standard would also be found to lack the appropriate narrowly construed mens rea. Rogers, Bloom and Manson (1984) report that 86% of all successful insanity acquittees in Oregon between 1978 and 1981 were uncontested by any of the examining forensic examiners or the prosecution. This implies that changes are likely to effect that sub-group of insanity pleaders whose constellation of crime and mental state have proved, historically, to be most controversial. Careful reading of the existing (but scant) empirical literature (Fukunaga et al., 1981; Pasewark, 1981; Petrila, 1982; Rogers, Bloom & Manson, 1984; Steadman et al., 1983) on the degree of agreement between examiners and factors associated with a successful plea, as well as an extensive examination of the major historical trials and controversial cases (Golding,1984; Roberts and Golding, 1984), leads to a hypothesis that among such controversial cases at least one prototypic case would exist in which the mental state would be difficult to handle under a stricter view of mens rea. When an acutely disturbed defendant acts in an incoherent, bizarre, and "furiously insane" manner, no examiner or trier of fact from the Eighteenth Century onwards would have trouble viewing the person as non-responsible, whether the test was a strict interpretation of mens rea, Judge Tracy's "wild beast" standard in R. v. Arnold (1724) [see Platt & Diamond, 1965] or the modern American Law Institute's (1962) model penal code. However, when a defendant, no matter how disturbed, or whether or not under the influence of command hallucinations, kills someone in a carefully planned manner, then the strict interpretation of mens rea will clearly not exculpate (unless the Korell Court's untested "Procrustean" hypothesis is correct).
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 agrees 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. Because no jurisdiction has an extensive history utilizing the narrow approach without an affirmative insanity defense (with or without a possibility of the death penalty), it is difficult to speculate on the actual consequences. Roberts, Golding, & Fincham (1986) have shown that when jury-eligible college subjects are asked to attribute criminal responsibility to defendants under various decisional schemes, evidence of planfulness, in otherwise severely disordered defendants, produces a marked decrease in ngri acquittals even under the ALI standard (the narrow mens rea instructions were not used). Thus, when a severely disturbed paranoid schizophrenic individual kills someone who is connected thematically to his delusional system in a non-planful manner, 95% of the subjects view the person as not criminally responsible. However, when the same person is described as having purchased the murder weapon the day before the assault, the percent of ngri "acquittals" drops to 59%. To most experienced forensic professionals, the existence of planfulness in the acts of such patients does not contraindicate irrationality, a lack of substantial capacity to appreciate the wrongfulness of one's actions, or an inability to conform one's behavior to legal requirements, but the average juror seems more troubled by the seeming contradiction. (Indeed, evidence of planfulness of the proscribed action is one of the historical prototypes for overcoming the presumption of doli incapax in children between 7 and 12 years of age.)
While mens rea in the general criminal law has come to be identified with narrower connotations, we believe it would be an historical, jurisprudential and clinical mistake to substitute such a narrowed definition in cases where the central issue is the impact of a mental disorder on a defendant's fundamental ability to appreciate the nature and consequences of their actions and their ability to choose freely to commit a proscribed act. With others (most notably Bonnie, 1983; 1984), we believe that a "narrow mens rea," in the absence of an affirmative defense, would produce great distortions in the adjudication of such cases. We are tempted to speculate that such an exclusive narrowing would probably lay the seeds of its own destruction. If our fundamental thesis about the role of the insanity defense in our society is correct, such a narrowing would tend to produce a trend towards expanding the meaning of "knowing," "purposefully" and the like as implied in Korell. The final result , with many instances of unjust verdicts, would be a "back-door" insanity defense in the sense that persons who intend knowingly, but delusionally, to commit proscribed acts will be found not guilty on narrowed mens rea grounds. If Judge Bazelon is correct in his reasoning in United States v. Brawner (1972) that juries and triers of fact basically use a sense of whether or not the defendant is held justly to be responsible in light of their mental condition (as we believe they are), then such a strict narrowing would force juries and judges alike to "acquit in defiance of the law" and to reconstrue the narrow terms to accord with their sense of fairness and justice.
Thesis: Despite periodic fluctuations, the formulation of the legal test for insanity represents an interaction between Judeo-Christian concepts of culpable intentionality, prevailing knowledge of psychopathology, and pragmatic socio-cultural and administrative considerations.
As noted previously, Platt and Diamond (1965, 1966) demonstrate that the moral origins of the insanity defense may be traced at least as far into history as the Talmudic proscription against holding "deaf-mutes, idiots [including the mentally retarded and insane], and minors" responsible for their actions Within our own cultural tradition, the absolute liability that attached to proscribed acts, whether intended or not, was excusable, in principle, by a King's pardon in cases of insanity, imbecility, or for certain children (Pollock & Maitland, 1952; Sayre, 1932). According to Sayre (1932), the concept of absolute liability was at odds with fundamental Judeo-Christian precepts of the mental and emotional capacities necessary for moral guilt. Under such theological influence, the judicial system of the Twelfth Century began to utilize the concept of mens rea, evolving finally by 1641 into well-accepted principle of actus non facit reum nisi mens sit rea (see previous discussion of this phrase). We do not know from the fragmentary case law available how frequently, or in what manner, these rules were routinely applied. However, from the work of Henry de Bracton, in 1256 (summarized in Platt & Diamond, 1965; Sayre,1932), onward there has been clear authority that certain classes of insane defendants were not held criminally or civilly responsible. Walker (1968) argues, correctly we believe, that the early cases available to us may lead to a mistaken impression of an overly restrictive view of the insanity defense at the time because they were atypical cases in generally high profile contexts [as in Hinckley's trial]. Thus, Arnold's trial for the attempted murder of Lord Onslow must be understood in the context that his act was seen as part of a plot against the King. Nevertheless the metaphoric test of the period is captured in Judge Tracy's summation to the jury in Arnold's case, "If a man be deprived of his reason, and consequently of his intention, he cannot be guilty. ...it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast" (cited in Walker, 1968, p.56).
It is difficult to trace the history of how such rules were applied, or how psychopathological testimony influenced the decisions. Since the records of most trials are incomplete, the available sample is biased in an unknown manner. Also, before 1836 defendants were not provided with counsel unless the charge was treason. Thus, Arnold and others, required to defend themselves, could appear quite in possession of their rational faculties at the time of trial. Hence the retrospective task of inferring past mental state was made more difficult and subject to additional bias. Despite these difficulties, the consistency with which certain themes emerge is sufficient to justify the use of such data when the contextual constraints are made clear.
Hadfield's trial, however, was distinctly different than Arnold's. Hadfield had received a serious head wound while in the army, and afterwards had been incoherent, with `manifest symptoms of derangement'; he was represented by skilled counsel; there were many lay and professional witnesses; and the prosecution entered no expert evidence in rebuttal (Walker, 1968, Pp. 74-81). Hadfield's psychopathological profile, however, did not fit the "total deprivation" model -- his irrationality and madness were periodic, and a physician from Bethlem hospital testified that, "When any question concerning a common matter is made to him, his answers quite correctly; but when any question is put to him which relates to the subject of his lunacy [his delusional belief that he must be destroyed, but not by his own hand], he answers irrationally" (cited in Walker, 1968, p. 76). Hadfield's delusionally inspired attempt at passive suicide did not render him unaware of the nature and consequences of his act. He very obviously knew, in the narrow sense, because he intended that, by killing George III, he would be put to death. In fact, he counted on his successful assassination of a monarch as resulting in being put to death by the hand of another. This is an example of the moral dilemma, if not frank inconsistency, that faces the narrowed view of mens rea.
In historical context, it is important to point out that judges and legislators of Hadfield's time were aware of a conundrum in the adjudication of insanity that modern advocates of abolition of the affirmative defense of insanity (in favor of a narrowed mens rea approach) ignore. If Hadfield were found simply not guilty because he lacked the prerequisite mens rea, he would be set free. Therefore, during Hadfield's trial, Parliament hastily passed the Criminal Lunatics Act (1800) which provided for the special verdict of not guilty by reason of insanity. The result of this special verdict would be that, unlike other acquittals, the defendant would be "kept in strict custody, in such place and in such manner as to the court shall seem fit, until His Majesty's pleasure be known." An acquittal on mens rea grounds would simply be an acquittal.
On clinical grounds, it is important to note that Hadfield's delusional system did not render him incapable of "knowingly," "intentionally," and "purposefully" planning the assassination of George III, but it did render his intentionality nonculpable because of the clear influence of underlying mental and organic disorder. Thus, even before M'Naghten's trial (and certainly after), the test that was to be applied by the letter of the law, was not necessarily the same that was used, pragmatically, by the trier of fact. At each trial, a complex set of factors, including the social context, the skill of counsel, and the psychopathological profile interact with the "deep-lying ethico-psychological concepts" (Sayre, 1932, p. 989).
While 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)
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 A 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.
While 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).
Crotty (1924) 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 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, 1969). 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.
Shortly after Guiteau's trial, Dennis Davis, described by his jail physician as "an imbecile acting under a powerful impulse he would not have the power to resist," and by lay witnesses as "weak-minded" and "half-crazy," was convicted of murder under circumstances where he intentionally sought out and killed a man who had previously said, after an argument, that he would return and "get" Davis. The idea that insanity was "feignable" and that all too many individuals were being acquitted on that basis was clearly present in the original trial (see transcript excerpts in petitioner's brief, Davis v. United States, 1895). Against this background, the trial judge had instructed the jury to rely upon the presumption of sanity unless the defendant proved he was not beyond a reasonable doubt. The Supreme Court of the United States, in one of its rare direct treatments of the insanity defense, touched on an issue that has surfaced repeatedly before and after their decision, by focussing on Davis' right to have all elements, including the state of mind of malice, proved against him. That is, in order to convict, the trier(s) of fact must "say that that evidence before them, by whomsoever adduced, is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged" (Davis v. United States, 1895, p. 493). Since this decision established that mens rea elements must be proved beyond a reasonable doubt (and implied that sanity itself may be one of the elements), legislative attempts to reduce the perceived over-use of the insanity defense by crafting a procedure that places the burden on the defendant to prove his insanity by some standard, have become a tricky business.
In a subsequent series of cases, the Court has steered a reasonably unfathomable course holding that a) Davis applies only to federal jurisdictions (Leland v. Oregon, 1952); b) the State could require the defendant to prove his insanity after the State had proved all elements, including mens rea, beyond a reasonable doubt (Leland v. Oregon, 1952); (Rivera v. Delaware, 1976); c) Maine could not shift the burden of proof of "heat of passion" to the defendant (Mullaney v. Wilbur, 1975); d) the State must prove all elements of the offense beyond a reasonable doubt (In re Winship, 1970); and e) New York could place the burden of proving the affirmative defense of extreme emotional disturbance on the defendant (Patterson v. New York, 1977). Currently, the burden of proving insanity as an affirmative defense is placed upon the defendant in a majority of jurisdictions, and there is an accelerated trend in that direction (Keilitz & Fulton, 1983).
The American Psychiatric Association (1982), acknowledging the potential importance of the burden of proof issue to the nature of expert testimony and admitting the "inherent uncertainties in psychiatric testimony," declined to make a recommendation, deferring to "legislative judgment," but calling (admirably) for "further empirical study." The American Bar Association (1983) was more candid in revealing their internal debate, and adopted a resolution calling for assigning the burden to the prosecution in M'Naghten rule states and to the defendant in ALI Model Penal Code states. Surprisingly, the American Psychological Association simply took no position, "believing that those questions are legal questions, not psychological questions" (Text of position, 1984). With respect, we disagree. There is substantial reason to believe that placing the burden on the defendant could have a significant effect on jurors' attributional schemes. Especially when the shift in burden is conjoined with "guilty but mentally ill" verdict options, it is too easy for the prosecution to argue that aspects of the defendant's rationality or intentionality show that he was not insane beyond a reasonable doubt. While this aspect of decision making needs detailed study, one could also predict that it will place higher expectations on the expert witness who testifies for the defense, and the style of direct and cross-examination that may be expected, especially if conjoined with the increasing trend to restrict the scope and nature of expert testimony.
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 (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 which 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 recently 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 guilty 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).
We have thus come full circle, and the issue of "irresistible impulse" is now back in the forefront. Notice, however, that the American Psychiatric Association's disclaimer in this area is not based upon empirical evidence, but rather is a politically motivated reform. One could argue, for example, that modern knowledge of borderline and schizotypal personality disorders is sufficient to argue that there are a class of non-psychotic defendants whose ability to control their impulses is severely altered by their reasonably reliably diagnosable disorders. The excision of the volitional prong is intended to prevent so-called psychopaths from raising a successful insanity defense, but most data indicates that such persons are rarely acquitted in the first place.
Thesis:Modern attempts to abolish or to reform the insanity defense by instituting the alternative verdict of "guilty but mentally ill" reflect an ignorance of historical precedent
Queen Victoria, like many of her fellow citizens then and today, was not pleased with the workings of the insanity defense and was furious at Daniel M'Naghten's acquittal in 1843.
We have seen the trials of Oxford [who attempted to assassinate Victoria in 1840] and MacNaughten(sic) [who attempted to assassinate the Prime Minister, Sir Robert Peel and instead killed his private secretary, Edward Drummond in 1843] conducted by the ablest lawyers of the day - and they allow and advise the Jury to pronounce the verdict of not guilty on account of insanity, whilst everybody is morally convinced that both malefactors were perfectly conscious and aware of what they did (Cited in Walker, 1968, p.168).
Forty years, and numerous attempted assaults later, Victoria was in no mood for jurisprudential analysis when Roderick MacLean attempted to kill her with a pistol and was acquitted by reason of insanity (like Hadfield, Oxford, and M'Naghten before him). Victoria's response was to fire off a letter to the Prime Minister demanding that the law be changed to reflect her belief that
Punishment deters not only sane men but also eccentric men, whose supposed involuntary acts are really produced by a diseased brain capable of being acted upon by external influence. A knowledge that they would be protected by an acquittal on the grounds of insanity will encourage these men to commit desperate acts, while on the other hand certainty that they will not escape punishment will terrify them into a peaceful attitude towards others (Unpublished correspondence of HM Victoria to Prime Minister Gladstone, April 23, 1882, cited in Walker, p. 189;italics added).
Whatever prejudices or biases may have influenced Victoria's jurisprudential sense, she clearly hit the nail on the head in summarizing popular attitudes about the insanity defense. Careful examination of the popular press of our day in and around the time of Hinckley's acquittal for the attempted assassination of President Reagan makes it clear that the popular attitude has changed little if at all. For example, Hans and Slater (1983) sampled public opinion within a month of the Hinckley verdict and found that 87% of their respondents viewed the insanity defense as a loophole. Only 14.7% of them would have found Hinckley, based upon the information they had, not guilty by reason of insanity. In the same year as the Hinckley verdict, Governor James Thompson of Illinois, co-chairman of the Attorney General's Task Force on Violent Crime, summarized the views of many legislators, governors, and politicians who spoke in favor of adopting the "guilty but mentally ill" verdict option when he stated succinctly, " the insanity plea is an example of what the public perceives as a weakness in the criminal justice system. Too many criminals are receiving reduced sentences by pleading insanity and serving sentences in a short time in a mental institution rather than a longer sentence in prison. For reasons like these, the insanity as a defense plan has been called `the scandal of American law'" (Thompson, 1982). Then United States Attorney General William French Smith was more blunt, and predicted that adopting the GBMI option "would effectively eliminate the insanity defense" (U.S. moves, 1982).
Careful examination of the trials of MacLean, M'Naghten, Oxford and others, however, raises serious questions about whether the scandal lies with these trials or the political hay made from them. The basic issue addressed by these trials -- indeed in most insanity trials, regardless of the potential victim -- remains, is it just to find criminal guilt in a psychotic person whose behavior is apparently a direct and undisputed function of a delusional system, even if acted upon in an "planned fashion?" Traditional jurisprudence and most jurors over the centuries have answered this question in the negative, but lay persons, not in a juror role, like Queen Victoria, President Reagan and many modern legislators, answered the question affirmatively. Interestingly, poor Roderick MacLean, whose actions started this historical trend, was just such a fellow. He appears to have been "difficult to motivate" (anhedonic?) as a child, suffered a head injury in adolescence ( of unknown effect), was involuntarily certified in 1874 and in 1880 for "homicidal mania" with clear delusions of grandeur, referential thinking, and a delusional conviction that he must kill someone of importance in England to get the English people to stop mocking him by wearing blue. In a letter to his sister, dated May 30, 1880, he says,
..as the English people have continued to annoy me, I thought I would write, as you should not be surprised if anything unpleasant occurred as the people are so antagonistically inclined towards me, make me raving mad. ... I mean, if they don't cease wearing blue, I will commit murder. I really think I cannot prevent myself having revenge on the English people. I don't mind a bit if they hanged me, as now I see things in a different light [referring to his belief that he was in communication with God through numbers having 4 in them, and that, to quote from his diary, God had told him ,`Fear not. My help is near and My power will shield you still'] (Trial of Maclean, 1882).
He carefully planned the attempt on Victoria, and was found with a note explaining in his possession. Nevertheless, at his trial, all physicians, correctly we believe, argued that he was not guilty by reason of insanity, according to the English law of the time.
Similarly, the evidence at M'Naghten's trial was unanimous and even the prosecution "caved in" after this fact was pointed out:
Chief Justice Tindal. Mr. Solicitor-General, are you prepared, on the part of the Crown, with any evidence to combat this testimony of the medical witnesses who now have been examined? Because we think, if you have not, we must be under the necessity of stopping the case. Is there any medical evidence on the other side?
Solicitor-General. No, my Lord.
Chief Justice Tindal. We feel the evidence, especially that of the last two medical gentlemen who have been examined, and who are strangers to both sides, and only observers in the case, to be very strong, and sufficient to induce my learned brothers and myself to stop the case (Townsend, 1850a, p. 400).
Needless to say, Lord Tindal's stopping of the trial was one of the factors that led the House of Lords to "request" that the Justices respond to the series of questions answers to which have come to be known as the M'Naghten rules. Countless authors have speculated as to whether M'Naghten would have been found ngri under the rules that bear his name. Nigel Walker, in describing the proceedings at the House of Lords, clearly believes that he would not have been found ngri, "Nobody [in the House of Lords] was tactless enough to point out that if the judges' answers represented the law M'Naghten should have been convicted" (Walker,1968, p. 102).
Consistent with our previous arguments, however, the evidence as presented would likely result in an insanity acquittal regardless of "letter" of the rule or the century in which he was tried. There was undisputed forensic evidence that M'Naghten had delusions of persecution that were of long standing, that the delusions involved the police forces (Sir R. Peel had created the London Metropolitan Police), that he had expressed these delusory ideas to many people and had attempted to gain the protection of several individuals including his parish minister, the Glasgow Sheriff and Chief of Police, and the Lord Provost and the member of parliament from his district. All of these individuals were called at his trial, and all testified that he was, in their view, "insane," "daft", or "suffering from strange delusions of persecution." Moreover, M'Naghten had fled England and Scotland to outwit his delusory persecutors. His counsel, Cockburn, argued effectively that
... if they(the delusions) had been realities instead of delusions. ... he acted as a sane man would have done, but manifested beyond all doubt the continued existence of his delusions. He goes to the authorities of his native place, to those who could afford him protection, and with clamours entreats and implores them to defend him from the conspiracy (Townsend, 1850a, p. 372).
At Oxford's trial, the evidence seems to have been less clear-cut, but there was considerable, and relatively uncontradicted, testimony that Oxford had been seen by most as insane (in the lay sense) for a number of years, that many of his family were viewed the same way, and that he impressed all medical authorities who viewed him at the time of his trial as both an "imbecile" and "insane." The jury had no difficulty in adjudging him insane, although they were somewhat confused by Lord Denman's attempt to instruct them that "although he laboured under a delusion, if he fired the loaded pistols at the Queen, knowing the result which might follow from his conduct ... he would be responsible for his act, and liable to punishment" (Townsend, 1850b, p. 148).
Curiously, Queen Victoria seemed as unaware in her day of existing, highly relevant, behavioral science data as do current legislators and other political leaders. In 1869, William Guy, Professor of Forensic Medicine, and Vice-President of the British Royal Statistical Society, published an analysis of the rates of insanity acquittals before and after salient cases that, with the exception of formal time-series statistics, is a model of careful use of the crude data then ( and now) available. Guy attempted to
discover some facts...which may go far to set these questions at rest; and perchance the truth, if we can discover it will be found to set us free from the exaggerations which hang about...as well as from the panics which are apt to seize on those who make the safety of the State, and the protection of the innocent against violence and fraud, their supreme law (Guy, 1869, p.159).
Guy presented a time-series from 1836 to 1867, in which the total acquittal rate, as a function of type of crime, was adjusted to a constant population (a minor error), over the period. By careful, albeit non-statistical analysis, Guy shows that not only did celebrated trials not result in an increase in insanity pleas and acquittals, but, to the contrary, the entire series is reasonably flat, that the fluctuations are as observable in minor crimes as in high profile murderous assaults, and in convictions as well as in insanity acquittals.
Professor Guy's conclusions and his appeal to empirically based reason are as appropriate today as 116 years ago, but they had little influence then, and it seems, would have little influence today. Thus, at Victoria's request, Parliament passed the Trial of Lunatics Act (1883) which provided that when a person is found to have committed a felonious act, but to have been insane at the time, the jury shall return a verdict of "guilty but insane." Dispositionally the new statute made little difference, since, from Hadfield's time, this had been under the Criminal Lunatics Act (1800) which provided that, upon such a special verdict, the person should be held under strict custody until His (Her) Majesty's pleasure be known (i.e. held under indefinite criminal commitment). The new verdict was meant to satisfy the Queen's sense that at least there was a finding of guilt, even though, under the law of the time, the person was under government, and not judicial control. As predicted, things soon began to get a little uncomfortable jurisprudentially when Parliament passed the Criminal Appeal Act (1907) providing a mechanism and a court to hear criminal appeals. Soon thereafter, a person found "guilty but insane" appealed to that court on the basis that he had been found guilty (R. v. Ireland, 1910). Several other cases followed in the same vein, with the same argument. Everyone knew, however, that the special verdict was not a conviction, nor was it a straight acquittal (that had been dealt with at Hadfield's trial). Therefore, in Felstead v. Director of Public Prosecutions (1914) the House of Lords was forced to eat judicial crow and to state that even though the verdict said guilty, it really meant acquitted because the person was committed during His Majesty's pleasure, and not for a fixed period of time which would be the case if convicted! Felstead remained the rule until things were made straightforward again in the Criminal Procedure (Insanity) Act (1964) which, in essence, repealed the 1883 Trial of Lunatics Act by changing the wording of the special verdict to --of course -- not guilty by reason of insanity.
Thesis:The GBMI alternative is a not-so-hidden attempt to effect a functional abolition of the insanity defense. While designed to "close a loophole," it may result in untoward consequences.
Twelve states have now enacted GBMI legislation and it is under consideration in several others (Keilitz & Fulton, 1983). 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. Subsequent to McQuillan, 150 patients were released, and two re-offended most spectacularly, one murdering his wife rather brutally, and the other committing two rapes shortly after release. The verdict was also adopted in Indiana in 1979 under similar circumstances. Following Hinckley's assault on President Reagan the stage was set for the remaining states to pass GBMI legislation in response to the perceived abuses of the insanity plea. Thus the GBMI verdict of this century was introduced for reasons identical to Queen Victoria's demand in 1882 which resulted in the "guilty but insane" verdict form adopted in the Trial of Lunatics Act (1883). Unlike the 1883 verdict, the current GBMI verdict was not intended to replace the verdict of not guilty by reason of insanity. 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 Michigan GBMI verdict was intended to assure the detention of the defendant for a significant period of time under the auspices of the Department of Corrections. Finally, the 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?"). 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).
Functionally, the GBMI verdict works as follows in most jurisdictions (using Illinois' (1983) procedure as illustrative). If a defendant asserts the defense of insanity, the judge or jury may return verdicts of not guilty, guilty, not guilty by reason of insanity, or guilty but mentally ill. In order to return the GBMI verdict, the trier of fact (judge or jury) must find "beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time" (Illinois Revised Statutes, 1983, c. 38, section 115-4). While "legally insane" is defined (c.38, Section 1005-1-11) as "the lack of a substantial capacity either to appreciate the criminality of one's conduct or to conform one's conduct to the requirements of the law as a result of mental disorder or mental defect," mental illness is defined, for the purpose of GBMI, as a "substantial disorder of thought, mood, or behavior which afflict(s) a person at the time of the commission of the offense, and which impaired that person's judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law" (c. 38, Section 6-2[d]). Michigan makes its confusing distinction even fuzzier; mental illness (not rising to insanity) is a "substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life" (Michigan, 1982). While the GBMI plea is suppose to make the juror's job easier, it isn't clear how one could distinguish reliably between such definitions of legal insanity and mental illness. We know of no research that has demonstrated that such distinctions would be close to impossible to make, but there are a series of cases in which defendants have attempted to challenge the statute by claiming that the distinction is irrational and hence violates their equal protection rights. All such appeals have failed. There is also reason to believe that such verdict options produce an increase in the threshold of insanity judgments per se. For example, Bruno Montano, who had been previously hospitalized involuntarily, killed his mother and niece while they were in the process of re-institutionalizing him. After having been found incompetent to stand trial and then restored to competency with psychotropic medication, Montano was found guilty but mentally ill of murder and manslaughter in light of conflicting expert and lay testimony about his mental capacity. The Supreme Court of Indiana (Montano v. State, 1984) found that his conviction stood, as the conflicting testimony justified a verdict of GBMI but not a verdict of not guilty by reason of insanity. While such an option may not produce a different result in "hands-down" cases, it would seem to give the trier of fact an easy out in the "hot potato" situation of having to make judgments in difficult cases. As discussed previously, Roberts, Golding, & Fincham (1985) have also presented evidence that such verdict options may result in clearly insane defendants, as well as traditionally non-insane personality disordered defendants being found GBMI, a consequence neither intended nor desirable. The forensic examiner's job of accurately detailing a defendant's mental state and emotional, intellectual and behavior capacities while avoiding the "conclusory whipping boy" trap are difficult enough -- our sympathies go out to whomever tries to argue the barely perceptible distinction between a substantial disorder that significantly impairs capacity to recognize reality and substantial incapacity to appreciate wrongfulness! If the courts believe they can make such distinctions, they are more than welcome to it. More cynically, we believe that the addition of the GBMI verdict option serves no useful purpose (increasing the safety of the society; assuring better treatment for the dangerously mentally ill before they are released) and may simply serve as another example of an ill-considered attempt to reform a complex system that is largely misunderstood and relatively unstudied.
Thesis: While competency to stand trial and legal insanity at the time of the offense are separable issues, they interact in predictable ways that influence the conduct of forensic examinations.
In many fitness evaluations, the complementary "sanity" question arises. Often, the defendant is obviously unfit and will be later pleading not guilty by reason of insanity. As we discuss subsequently, the examiner's primary concern in such cases should be to preserve a sufficiently detailed record of the defendant's pre-treatment mental state so as to not disadvantage the defendant at trial subsequent to competency restoration. Specifically, the examiner should make a concerted effort, consistent with clinical realities, to assess mental state at the time of the offense, even in an otherwise incompetent defendant. Occasionally, however, the fitness examination concerns the defendant's ability to waive competently an insanity defense, and the collateral question of whether a court may interpose an insanity defense, sua sponte, even over defendant's objection.
As far as we are able to ascertain, an interposed insanity defense has arisen infrequently in the United States (but see, below), although it also occurs in Canada and is possible, in restricted form, in England. A leading case in Canada is Regina v. Simpson (1977) where a defendant was found not guilty by reason of insanity on an indictment of two counts of attempted murder even though he did not place his state of mind at issue during the trial. The Simpson court found that Canadian practice allowed the prosecution to introduce evidence of a defendant's insanity, even if the defense had been disclaimed by the defendant. If such evidence is sufficiently substantial and created a grave question whether the accused had the capacity to commit the offense, the interest of justice would require the trial judge to submit the defense and the appropriate instructions to the jury as a verdict option. The reader should realize that in Canada the post-acquittal commitment of an insanity acquittee is automatic and indeterminant, the person being held "until the pleasure of the Lieutenant Governor be known" (similar to the rule in England following Hadfield). In reality, this means that a provincial review board, not a court, determines release, and this frequently means a period of institutionalization in excess of the time that would be served if convicted (Golding, 1983; Greenland, 1979).
In England, the prosecution may enter evidence of insanity only if the defendant introduces his state of mind as an issue at trial. Thus, if a defendant attempts to prove that he suffered a non-insane automatism (which, under English law, results in a simple acquittal with no compulsory hospitalization) the prosecution may attempt to show that the automatism was "insane," i.e. the product of a disease of the mind, which would result in a mandatory hospitalization (Bratty v. A.- G. Northern Ireland, 1961). In other cases, however, England does not appear to allow the introduction of such evidence when the defendant does not make his mental state an issue.
In the United States, a small group of cases have addressed this issue directly or indirectly. In Lynch v. Overholser (1963), the United States Supreme Court found that a trial judge had not abused his discretion by refusing a defendant's attempt to change his plea to guilty after receiving sufficient evidence to find him not guilty by reason of insanity. However, the Supreme Court did not allow such an "interposed" insanity defense to result in automatic commitment, as would normally have been the case. In Whalem v. United States (1965), the District of Columbia Court of Appeals set forth broad authority for a trial judge to raise the defense of insanity, sua sponte, over the objection of the defendant. In United States v. Robertson (1974), the same court clarified some of the factors that should be considered in interposing such a defense including the defendant's behavior at trial, the trial counsel's desire to raise the defense (thwarted by defendant), the bizarreness of the actus reus, and the opinions of experts about the defendant's mental state. While the Whalem rule has never been declared unconstitutional, and is followed in several jurisdictions with modifications, the D.C. Court of Appeals was persuaded in Frendak v. United States (1979) to modify Whalem. Specifically, the court decided, in light of a series of Supreme Court cases stressing a defendant's right to make fundamental decisions about their own case within limits, that there may be "persuasive reasons why defendants convicted of an offense may choose to accept the jury's verdict rather than raise a potentially successful insanity defense" (p. 376). Among such reasons are a) a potentially longer period of confinement than if convicted [especially in light of Jones v. United States (1983)] even if commitment is not automatic in sua sponte insanity defenses; b) a desire to receive treatment as a prisoner rather than as a mental patient; c) a desire to avoid subsequent legal and social stigmatization as "twice cursed" (criminally insane); and d) a desire not to admit the actus reus, or not to have an act of political or religious protest construed as "insane." In light of this, the Frendak Court held that
a trial judge may not force an insanity defense in a defendant found competent to stand trial if the individual intelligently and voluntarily decides to forgo that defense. In reaching this result, however, we further hold that the court's finding of competency to stand trial is not, in itself, sufficient to show that the defendant is capable of rejecting an insanity defense; the trial judge must make further inquiry into whether the defendant has made an intelligent and voluntary decision" (p. 367).
In modifying and reinterpreting its rule, the District of Columbia Court of Appeals is explicitly adopting the "Sieling" standard for competency to plead guilty or to waive certain defenses and rights at trial. In the words of the Frendak court:
The Dusky standard is designed to indicate whether the accused knows enough about the facts of the case to relate them coherently to his or her attorney and to understand the nature of the proceedings. It is not intended to measure whether the defendant is also capable of making intelligent decisions on important matters relating to the defense...because the court is dealing with an individual whose sanity has been questioned, a cursory explanation or a rote interrogation cannot satisfy the court's duty (Pp. 379-380, citations and other text omitted).
Thus, when an examiner is confronted with such a defendant, care should be taken to explore the defendant's reasoning in great detail, and to avoid injecting one's own feelings about post-acquittal hospitalization and stigmatization. This issue usually arises with extremely paranoid defendants, which means that one is frequently subjected to various "countertransferential" pulls, eloquently expressed. Thus, few difficulties are posed by a defendant who is unwilling to plead ngri because the person whom he is accused of killing is not capable of dying (on account of magical powers possessed by the victim). However, a defendant who has a great fear of mental hospitals, or of involuntary treatment with psychotropic medication which may cause tardive dyskinesia, and who believes (against his lawyer's advice) that he can "beat the rap" by telling his (somewhat idiosyncratic) side of the story, is a entirely different matter.
Thesis: Attempts to create structured or standardized "mental state at the time of offense" examinations have heuristic value, but are premature and deflect attention away from the critical need to develop a better fundamental understanding of the behavioral, perceptual, cognitive, affective and judgmental correlates of various mental disorders, especially personality disorders.
One response to the general attack on mental health expertise has been to improve the psychometric characteristics of the interview data base upon which most forensic examinations are based. It is now reasonably settled that major sources of error and disagreement between mental health examiners can be traced to a) individual differences among clinicians in their ability/skill to elicit appropriate information, to be sensitive to certain cues, and to place "proper" weights on the cues; b) examiner differences in the behavioral referents of psychopathological descriptors ("semantic unreliability"). and c) differences in the diagnostic "rules" to be utilized to identify maximally useful and valid diagnostic categories(Blashfield, 1984). Thus, diagnostic agreement for major categories has increased dramatically with the adoption of the explicit "decision-tree model" of DSM-III, especially when such explicit criteria are tied to semi-structured elicitation devices such as the Diagnostic Interview Schedule (Robins et al., 1981), the Schedule for Affective Disorders and Schizophrenia (Spitzer & Endicott, 1977) and the Present State Examination (Wing, Cooper & Satorius, 1974). (Indeed, semi-structured interviews for practically every psychopathological condition of any popularity are beginning to appear -- see Helzer, 1983, for a particularly useful overview.)
Rogers has attempted to bring the same logic to bear in the evaluation of insanity with a set of scales he entitles the Rogers Criminal Responsibility Assessment Scales (Rogers, Wasyliw & Cavanaugh, 1984a; Rogers and Cavanaugh, 1981). The RCRAS was designed to translate the concept of legal insanity set forth in the ALI rule into quantifiable variables which will meet the standard of reasonable scientific certainty. A clinician is asked to rate a defendant on 25 scales grouped into five areas: a) reliability of report; b) organicity; c) psychopathology; d) cognitive control; and e) behavioral control. In addition, the examiner makes ratings of whether disturbance in control (cognitive or behavioral) is attributable to the assessed organic or psychopathological conditions, and a final rating of legal insanity. Rogers et al. (1984a) have shown in several samples that the reliabilities for the five area scores are reasonably high and that there is high agreement for the final judgment. Interestingly, the reported reliability for the "product question," i.e. was the loss of control, if present, attributable to underlying psychopathological disturbance, is quite low (kappa = 0.49). In another study with the RCRAS, Rogers et al. (1984b) report an overall agreement between examiners and triers of fact of 96% with respect to sanity and 70% with respect to insanity, corroborating our earlier findings in competency decision-making (Golding, Roesch, & Schreiber, 1984) of an asymmetry in decisional agreement. Though the sample upon which subsequent analyses were based was small (11 disagreements out of 112 cases), Rogers et al. (1984b) pin-point two demographic variables (sex [males] and completion of high school [drop-outs]) and two psychological variables (schizophrenic diagnosis and prior psychoactive medication history) as accounting for disagreements. With respect to the later, individuals who had a history of schizophrenia and psychoactive treatment were seen by clinicans as more likely to be insane than by the courts.
It is not clear, however, what the RCRAS contributes, in the long run, to the "reasonable scientific certainty" claimed by Rogers. The RCRAS does force the examiner to be more explicit about the elements of his/her opinion, to be sure, but good forensic testimony has always had that clarity. That is, professionally competent testimony always clarifies exactly what sort of disturbance exists at the behavioral, volitional and cognitive level, and how it seems relevant to the actus reus. Forcing the examiner to slap an ordinal number onto the judgment does not increase the judgment's validity, particularly, the "product judgment." If one wanted to increase the reliability and validity of the underlying interview-assessment-judgment process with respect to the delineation of psychopathological signs and symptoms, then one would seem better off using a standardized elicitation and coding procedure e.g., SADS, or PSE as has been suggested by others including Rogers (Roesch and Golding, 1980; Rogers et al., 1982). The reliability of the final judgment is also quite high in most studies that use no formalized interviews or rating scales (Rogers, Bloom & Manson, 1984; Fukunaga et al, 1981; Stock & Poythress, 1979). The critical question remains the association between organic or psychopathological disturbance and control/moral judgment capacities. Putting such a judgment on an ordinal scale is a step forward, perhaps, but one that clouds the underlying confusion in the "grey-area" cases (Golding, Roesch & Schreiber, 1984). Additionally, the construct and incremental validity of the RCRAS is difficult to assess because the published validity data use criterion-contaminated groups, i.e. either a) groups defined as sane or insane on the basis of the RCRAS itself, thus measuring in reality only item-total correlations, or b) groups based on court decisions where the same examiner's conclusions heavily influence court outcome. In any case, the underlying need to articulate a theory of criminal responsibility and control, and to assess the critical elements of such a theory, is not advanced a great deal by this method.
Slobogin, Melton & Showalter (1984) have attempted to pursue a more modest strategy to improve the "assessment footing" of insanity evaluations. As part of the University of Virginia's Institute of Law, Psychiatry and Public Policy's attempt to create better training materials for forensic clinicians, these authors sought to make mental state at the time of the offense (MSO) evaluations more legally and forensically relevant. The MSO technique they describe is significantly different from standardized psychopathological interviews such as SADS because it is designed as an investigative technique that is influenced strongly by legal criteria, and psychopathology in legal context. It was thus developed in a spirit much like our own competency assessment procedure, the Interdisciplinary Fitness Interview (Golding, Roesch & Schreiber, 1984). The MSO is a first-generation, loosely structured interview technique that holds great promise for setting a standard as to how such interviews should be conducted. As such, it will be described in some detail (for greater detail, see Melton et al., 1985). The MSO assumes sophisticated training in legal and psychopathological issues, and is tied to a training program at the Institute. It relies heavily upon an integration of traditional information sources (interviews with the defendant, psychological test data, physical test data, special tests, i.e. narcoanalysis) and third party reports within a legal framework. The interview outline depends upon obtaining complex third party information, initially screened for legal admissibility. We applaud this development. The interviewer is encouraged to consult referral sources, extensive police, prosecutor and defense files on the actus reus, historical, criminological, social, educational, medical and mental health data, and the like prior to interviewing the defendant. During the interview, psychopathological state of mind data is gathered and compared to third party data with respect to critical psycho-legal issues, i.e. the defendant's response to the offense, and a detailed account of internal (cognitive-emotional) and external (behavioral) events prior to, during, and subsequent to the offense. At this time, the material is not reduced to scores or quantified data, although it could be developed in that direction. To date, the published data on the MSO technique (Slobogin, Melton, & Showalter, 1984) have concerned its ability to function as a screening device, primarily to "screen out" defendants for whom an insanity defense is inappropriate. Future work aimed at the agreement of MSO recommendations in uncontaminated samples, and the extent to which reports based upon such techniques assist the trier of fact (in line with the work by Petrella & Poythress, 1983) is clearly needed.
Borrowing from Melton et al. (1985) and from our own work, we can conceptualize a comprehensive MSO interview(s) as falling into a series of phases (the Sullivanian terminology is ours): 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) a reconciliation with other data sources (including consultation with other professionals who have evaluated the defendant), and f) a termination.
Inception. In addition to rapport building, the inception requires explaining clearly one's role to the defendant, focussing 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 their "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. In practice, we use an amended version of Part II of the SADS which focuses on the defendant's life-time 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. In addition to the "main" standardized interviews we have found Andreasen's (1979a,b) work on thought disorder, Bellak, Hurvich, & Gediman's (1973) techniques for exploring ego functions, and Pfohl, Stangl, & Zimmerman's coverage of personality disorders (1984) particularly helpful in this regard. 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 their thoughts, perceptions, experiences, attitudes and behavior, as well as that of those in the "field of action." 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. In our experience, the "retrospective difficulty" is frequently translated at trial, into fairly grandiose defense and prosecution theories of what implications may be drawn from this or that aspect of the defendant's behavior vis-a-vis their mental state. Thus, an abused wife may be claimed to have intended her husband's death because she waited three hours until attempting to dispose of the body. Detailed inquiry may reveal that her husband may have frequently played "possum" following previous abuse situations when he typically passed out after extreme drug intoxication, and that the wife, disoriented and substantially impaired in reality contact, may have mistakenly appreciated the situation as one in which he was again playing his favorite game instead of dead from a blow to the head. More commonly, a defendant may lie quite rationally about what happened several hours before, and in fact be in a dramatically different mental state. Lay persons generally assume a greater degree of stability and cross-situationality of behavior and experience than may be warranted on scientific grounds. The detailed inquiries should enable an examiner, within the limits of current knowledge of psychopathology, to produce a meaningful "psychological autopsy" of the defendant's states of mind during the entire legally significant period.
Reconciliation and termination. As emphasized by many advocates and critics of the role of the forensic examiner in the legal process (Bonnie & Slobogin, 1980; Melton et al., 1985; Morse, 1978), and discussed in greater detail below, 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, 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.
The expertise of mental health professionals has a legitimate role, but it is our responsibility to reform that role
Qualifications of the expert. Traditionally, expert testimony on insanity issues was restricted to the medical profession. With some exceptions (see Louisell, 1955; Perlin, 1980; Poythress, 1979 for reviews) this remained the case until the landmark case of Jenkins v. United States (1962) where Judge Bazelon found error in the trial court's instructions that, " A psychologist is not competent to give a medical opinion as to mental disease or defect. Therefore, you will not consider any evidence ... (to that effect) ... according to the testimony given by the psychologist" (cited in Jenkins, p. 643). Judge Bazelon argued that the test for admissibility was not the degree held by the witness, but rather a) "whether the opinion offered will be likely to aid the trier of fact in the search for truth" (p. 643), and b) " the actual experience of the witness and the probable probative value of his opinion" (p. 646). Explicitly, Judge Bazelon argued that no expert, regardless of degree or training, should be accepted without a specific "finding in respect to the individual qualifications of each challenged expert" (p. 646). Predictably, the American Psychiatric Association filed as amicus brief attempting to assert that clinical psychologists were "ancillary" personnel who were not qualified to testify as to psychopathological disturbances, which, after all, were medical diseases. This type of assertion is clearly a "turf battle" made not on the grounds of scientific evidence but for protection of the guild (Hogan, 1983; 1979). In fact, Petrella and Poythress (1983) present evidence that psychological and social worker reports are seen as more helpful to triers of fact than those of psychiatrists. In the spirit of Judge Bazelon's comments, we prefer to focus upon the training and expertise of a particular witness qualifying during the voir dire for specific and limited expertise. While many "diplomate," "academy," and "professional examiner" organizations now exist in psychology and psychiatry, we believe that even such certification should not be sufficient or even necessary since there are legitimate professional reasons for not joining such organizations that are independent of one's expertise. For each issue to which a proffered expert is to address, the court must examine his/her specific training, experience and knowledge. Thus, generic psychiatric or clinical psychological training, even with a "rotation" in forensics, does not an expert make, nor is someone qualified in the area of adult responsibility and competency evaluations an automatic expert on dangerousness or child abuse. In our experience, courts have been too liberal in their criteria for demarcating the limits of expertise, and have been too willing to accept generic "board certification" and the like. Since the purpose of expert testimony is to aid the trier of fact by introducing, integrating, and explaining scientific evidence and expert observation, it is not unreasonable to ask a particular witness to demonstrate the depth and boundaries of his or her particular expertise during the voir dire.
A recent case in Champaign County will illustrate our point. The defendant, accused of murdering her children, plead not guilty by reason of insanity, alleging that she was psychotically depressed at the time. The prosecutor attempted to qualify Dr. Thomas Szasz as an expert witness. No one questioned Dr. Szasz's impressive training, experience, scholarship or membership in a host of respected organizations. However, the public defender astutely cross-examined Dr. Szasz on critical points which were answered straightforwardly. Dr. Szasz stated, in essence, that he did not need to examine the defendant because mental illness was a myth and did not, in any case save perhaps brain disease, prevent a person from freely choosing to know that their act was criminal and to refrain from doing it. The defense argued that, despite Dr. Szasz's qualifications, he could not offer expert opinion since his belief was fixed and immutable, and hence a dogma that was invariant over the various facts alleged in the case. Dr. Szasz was not permitted to testify.
Difficulties with expert testimony. Regrettably, many of the problems of expert testimony are failures of the legal system in interaction with our own. Defense attorneys, prosecutors and judges alike frequently "drop the ball" and fail to carry out their critical roles in an effective manner. For example, one of the most egregious examples expert opinion difficulties arose in context of predictions of dangerousness where the prosecution's psychiatrist was subject to perfunctory cross-examination and no defense witnesses were called. (Barefoot v. Estelle, 1983). In Barefoot, no expert witnesses were called to rebut Dr. Grigson's claim that there was a "one hundred percent and absolute chance" that Barefoot would constitute a continuing threat to society, that on a one to ten scale of sociopathy, Barefoot was "above a ten," and that his ability to predict such things was supported by the American Psychiatric Association! While the majority's opinion in upholding Barefoot's conviction has been the subject of scathing criticism, they were clearly correct when they concluded that evidence for the unreliability of such predictions could go to the weight of Dr. Grigson's testimony and that it was the responsibility of the defense counsel to present it. In fact, a great deal of heat, and not much light, has been generated around the issue of the proper limits of expert testimony and whether such expertise exists in the first place. While we will not review this controversy in detail, we wish to make the following conceptual and empirical observations:
1. While the attack on unfounded, over-reaching, and often ethically questionable expert testimony is well founded (see Bonnie & Slobogin, 1980; Melton et al., 1985; Morse, 1978; Poythress, 1979; Roesch & Golding, 1980), many of the attacks appear to have other targets in mind (the insanity defense, itself, judicial liberalism, and the death penalty to name a few). Well-trained and conscientious mental health professionals have always attempted to be punctiliously correct in the testimony they offer to the courts, and have been at the forefront of attempts to reform standards of training and practice. Conflating many issues into single rhetorical attacks runs the grave risk of depriving mentally disordered defendants of their right, both moral and constitutional, to have a detailed analysis of their mental state presented to the jury when it is at issue as an element of the offense ( for cases see the "Concept of mens rea," above, and Ake v. Oklahoma, 1985).
2. Certain allegations about the misleading role of expert testimony are made in the absence of empirical data, and such scant data as are now available belies many of these allegations. For example, Morse (1978a,b; 1982) has maintained that diagnostic labels and expert conclusory evidence mislead the trier of fact, and have (our words not his) an almost mythical, hypnotic and "totem-like" quality in mesmerizing the judge or jury. Recently, the United States Congress was pursuaded by these arguments, among others, to reform the Federal Rules of Evidence, Rule 704 (Insanity Defense Reform Act, 1984) to bar an "expert witness testifying with respect to the mental state or condition of a defendant ... (from)...stat(ing) an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." Empirically, however, courts have always jealously guarded "invasions of the province of the trier of fact," and alert judges have always chastised those who presume in their testimony to reach the "ultimate issue" (see especially Roesch & Golding, Chapter 4 (1980) and references therein). Moreover, Roberts, Golding, & Fincham (1985) have shown that potential jurors reach "insanity" decisions that accord with normative practice, even when the defendant's mental state is simply described accurately in common English (as it should be) without diagnostic labels or conclusory testimony. In a similar vein, Ewing, Levine and Burns (1984) have shown that even conclusory evidence of future dangerousness only has an impact when it is unrebutted. Is this a problem with expertise or with the trier of fact (for allowing opinion on the ultimate issue for which no Federal Rule of Evidence is necessary) or the defense counsel (for not rebutting it)? Clearly, unrebutted or conclusory testimony may be improper, but considerable fault lies elsewhere.
3. Careful reading of the trials of notorious cases also makes it unclear whether the juries in such trials are so easily misled, although this is an important empirical question. When a prosecution psychiatrist is not rebutted (as in Barefoot) or a defense psychiatrist is not challenged for some outlandish defense (twinkies come to mind), it is not unreasonable to suppose that jurors will either a) assume that the lack of challenge has probative value, or b) will exercise their own good judgment in weighing the testimony. Evidence of the latter, in spite of media representation that the jury in the Hinckley case was unduly influenced by the experts, can be found in the testimony of some of the Hinckley jurors before the Senate Subcommittee on Criminal Law (Hearings, 1982). In this highly public context,a group of highly educated Senators, many with law degrees, tried to get the Hinckley jurors to agree that they were confused by the law, were inappropriately pursuaded by the defense psychiatrists, and the like. The interchanges are priceless examples of honest citizens struggling to deal with their own implicit sense of morality and justice as opposed to the abstract concepts that are the stuff of Senate jargon:
Senator Specter: ...did you fell that you had a reasonably clear understanding of what the law on insanity was?
Mr. Lassiter. Yes, I thought I did.
Specter: ...what did you understand to be the meaning of the terms mental disease or defect?
Lassiter:...Well, I understood it to be some kind of problem that he had, not exactly insane but a thing just something that was bothering him that he could not control.
Specter: ... what did you understand by language like lack substantial capacity?
Lassiter:. I think , I think that he was able to know what he was doing at the time. I think at that specific time that he didn't.
Specter: Able to know what he was doing.
Lassiter: Able not to know.
Specter: You say not to know.
Lassiter: Right.
Specter: And did you conclude that he was not able to know what he was doing at the did he did it?
Lassiter: At that particular time.
Specter: You think he did not know--
Lassiter: Did not.
Specter: --what he was doing.
Lassiter: Right. ...
Senator Zorinsky: .. Do you think there is any merit of an objective panel of psychiatrists coming into the courtroom and talking to the jury and the judge as to their observations rather than being--well the word has been used--hired guns of the prosecution or the defense? In your mind, would it have more impact if they were as a panel relating neither to the defense or prosecution but being hired by the court to give their comments as to their observations of Mr. Hinckley's well-being?
Lassiter: Well, either way, I can't see where there would be any difference. Like I know that the defense had their psychiatrists; so did the prosecution. So, I know that both of them are going to try to influence us that they are right. So, I didn't pay it any mind. I just heard both sides and then took into my own consideration of what--
Zorinsky:..Would you have felt more comfortable if you did not have to continually use the screening process that they are saying that because they are hired by that side and this one is saying that because he is hired by that side?
Lassiter: I do not think so, no.
--with another witness--
Zorinsky: Ms. Brown, were you offended in any way that there were hired psychiatrists on one side and on the other side debating the issue as opposed to an impartial panel that would just come in and report on their observations?
Ms. Brown: Well, a couple of the psychiatrists, they would start out, OK, you could kind of understand what they were saying. But then they would go into a long lecture or go into all these terms. It really got lost. I did. By the time they get through telling you what it is all about, you have forgotten what the question was. We had a few that really were more pinned up on themselves and you forget the question. So it was kind of hard. Some of them would break it down and stay down, you know. They would not go off into these long journeys or something you don't even understand.
These glimpses into the mind of the jury aren't proof, of course, but they are highly suggestive that one needs to consider seriously whether or not our presumption that lay jurors are so easily fooled doesn't come simply from professional arrogance.
4. Allegations about the "limits of expertise" (e.g. Morse, 1978b) are often part-truths that distort the value of competent expert testimony. Along with others (Bonnie, 1984; Bonnie & Slobogin, 1980; Melton et al., 1985) we agree most strongly that the ultimate question of moral exculpation inherent in the insanity defense is a social and moral decision, to be made by triers of fact who are representatives of the society on the basis of "deep-lying ethico-psychological concepts" (Sayre, 1932, p. 989). "The standard by which sanity is to be tried is the common sense of humanity, and not the opinion of a few scientific men" (Reynolds, 1856, cited in Smith, 1981, p. 77). But when Morse states that "professionals have considerably less to contribute than is commonly supposed" and that "for legal purposes, lay persons are quite competent to make judgments concerning mental disorder" (Morse, 1978b, p. 392), we believe he is overstates the case in a most serious, and potentially destructive, manner. Obviously, no trier of fact needs expert assistance in cases involving the "furiously insane" or those that are "squeezing lemons." Such cases, however, are rare, and are not the basis for good law or forensic practice. While we are paying the price for decades of exaggerated claims of expertise, it is simply erroneous to view the mental health professions as having made no contributions to the careful delineation, assessment and conceptualization of the cognitive, affective and behavioral consequences of various forms of mental disorder. We do not mean to minimize the many methodological and conceptual problems with such a data-base, but one needs to inquire as to whether any pragmatically useful scientific data-base could survive the type of admissibility threshold implied in Morse's arguments (see, generally, Giannelli, 1980, for a review of the problem of admissibility). A defendant, whose mental state at the time of the offense is at issue, has the right to expect that the best currently available scientific evidence of the nature of the mental state will be adduced at trial. We agree that the limits of expertise in any fact situation are appropriate topics for cross-examination and rebuttal, but global excision of such testimony from the adjudication process is simply atavistic.
5. The national shift towards reforming the insanity defense is resulting in a concentration of attention to the "other end" of the problem, namely the question of appropriate modes of sentencing, disposition, treatment and release for those found either not guilty by reason of insanity or guilty but mentally ill. This shift has begun to raise issues about treatment and the prediction of dangerousness in particular populations that we are ill-equipped to address (Golding, 1983). Because treatment, release and prediction schemes depend heavily upon the resources provided, and the quality of follow-through and supervision, forensic examiners can be expected to be pulled into yet another societal maelstrom.
Thesis: To protect the rights of a defendant and to improve the quality of the decision-making, all forensic interviews and raw test data should be recorded, preferably by videotape.
This is a controversial issue, but we believe the argument for recording the interviews has the upper hand. Approximately 40% of all insanity-pleaders are found unfit for trial (Criss & Racine, 1980; Golding, 1983; Petrila, 1982) and are treated, primarily with psychotropic medication, until their (predominantly) psychotic symptomatology remits. Conservatively estimated, another 30% may received treatment while in jail awaiting trial. It is therefore extremely likely that a defendant who pleads not guilty by reason of insanity comes to trial disadvantaged in several obvious ways. First, if unfit for trial, an extensive "sanity" evaluation is unlikely to have taken place, and no relatively neutral record of his/her pre-treatment behavioral, perceptual, cognitive, affective and judgmental capacities at the time of the offense, will exist. Second, the defendant may have changed dramatically by the time of the "insanity" evaluation, especially if medicated. Third, medicated or not, if the defendant was in a disturbed state at the time and in a different state later, she/he will have difficulty recalling/describing the relevant mental state during a subsequent interview. Fourth, the defendant, many months later, has a difficult time convincing a judge or jury of their mental state, especially given the strong societal suspicion of malingering and the defendant's current adequate interpersonal presentation (if fit, she/he is likely to appear in court looking like anyone else; there will be no overt symptoms of agitation, psychotic anxiety, behaving-as-if-hallucinating , and the like). Finally, in the interests of justice (for both the defense and prosecution), no record would normally exist of the objective data upon which the forensic examiner based his/her inferences. Recording interviews removes the disadvantage of cross-examining an expert who is not only "in control" of the expertise but also of the data to which that expertise is applied. Thus, in medical forensics a pathologist would testify ordinarily as to the meaning of a certain pattern of blood stains, but would not be the only one who saw them!
This later problem is illustrated forcefully in United States v. Byers (1984). Byers was indicted for the murder of his lover. Immediately after his arraignment, he was examined at St. Elizabeth's by a team of psychologists and psychiatrists who found him competent, but suffering from paranoid delusions such that "he most likely or probably lacked the substantial capacity to appreciate the wrongfulness of his conduct" (p. 1143, n. 21). The hesitancy stemmed, apparently, from concern over the nature of these delusions (the belief that his lover was "working roots" on him) and the fact that they were situational in nature and in remission at the time of examination. The prosecutor sought a re-examination at the federal medical facility in Springfield, Mo. There he was examined primarily by Dr. E. Varhely, a psychologist, and Dr. N. Kunev, a psychiatrist. Varhely conducted numerous interviews and tests, and concluded that Byers was sane, although suffering from "magical thinking" not "paranoid delusions" (which did not rise to the prerequisite level of mental illness). Varhely also indicated that while Byers was not malingering, there was evidence in his MMPI profile that Byers was exaggerating but not to a level to invalidate the test (an elevated F-K index?). Dr. Kunev, who examined Byers once, wrote a report to the trial court which was in substantial agreement with Dr. Varhely's opinion. At trial, however, Dr. Kunev testified that during his interview Byers had told him, in response to questions about what his reasons were for the shooting, that "Mrs. Byers suggested to him that this could be under the influence of some magic, or spells or some influence of roots" (p. 1143). As might be expected, all hell broke loose at trial since the statement, if true and not distorted out of context, implied that Byer's "delusions" had been suggested to him by his wife. The trial court characterized the testimony as "devastating" and such that it "perhaps will torpedo the (defendant) out of the water" (p. 1144). Dr. Kunev, unfortunately, had a) destroyed his notes of the interview; b) admitted that he did not record the statement in the destroyed notes because he considered it insignificant; c) did not tell any of his colleagues of the alleged statement, and d) did not allude to it or any aspect of malingering in his report to the court. Byers was indeed torpedoed by the testimony, and was unsuccessful in his attempt, on appeal to have his conviction set aside on the grounds that admitting Kunev's testimony violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to effective assistance of counsel. A strongly divided court ruled that Byers statements to Kunev were admissible and did not violate his right to avoid self-incrimination as had been the case in Estelle v. Smith 1981. The court distinguished Estelle by arguing that Byers had himself interposed the insanity defense, whereas Smith had not raised either competency or sanity and had been required by the court to submit to an examination to evaluate competency only and the psychiatrist had later testified at the death-penalty phase of the proceedings based upon his competency interview. Quoting Estelle,
A criminal defendant, who neither initiates a psychiatric examination nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding (p. 468).
Nor was the interview of Smith analogous to a sanity evaluation occasioned by defendant's plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Court of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity evaluation conducted by a prosecution's psychiatrist (p. 465).
Similarly, the Court rejected Byers claim that he had been deprived of effective assistance of counsel at the psychiatric interview relying upon the Supreme Court's current test for Sixth Amendment applicability, namely that the defendant, to be constitutionally deprived of effective assistance, must be "confronted, just as at trial, by the procedural system, or by his expert adversary, or by both" (United States v. Ash, 1973, p.310). Thus, the court argued that there is no constitutional grounding for the requirement of presence of an attorney at forensic examinations -- "it is enough that Byers had the opportunity to contest the accuracy of both the details and the conclusion of Dr. Kunev's analysis by cross-examining him (pointing out, as he did, that the crucial statement on which Kunev based his conclusion was not reflected in the psychiatrist's summary of the interview)" (Byers, p. 1121). Interestingly, however, the Court, while sticking to its guns, concluded, "Recording psychiatric interviews may be a good idea, but not all good ideas have been embodied in the Constitution in general or in the Sixth Amendment in particular" (Byers, p. 1121). Indeed, it may be folly for the forensic profession to look to the courts for the impetus to reform forensic practice. Whether or not Judge Bazelon, in his strongly worded dissent is right as to the law, he is clearly right as to his review of the social science data on clinical interviews which he uses to conclude that
If defense counsel had an accurate, complete record of the clinical interview he could, with the aid of his own experts, attempt to identify the distortions and interactions that may have affected the substance of the interviewer's reports and testimony. But such a complete, accurate record cannot, by virtue of the very effects I have described, be expected to be forthcoming from the interviewer. The accused, moreover, whatever his mental state, cannot be relied upon to fill in the gaps necessary for a complete and accurate assessment. It is therefore clear that ... counsel may be unable to detect distortions or to cross-examine meaningfully the government's expert and rebut his conclusions ... A complete tape recording or videotape of the interview would provide counsel with exactly the sort of objective and precise record that, as I have previously discussed, is often a prerequisite to detection of distortions and to effective cross-examination or rebuttal at trial. As discussed above, such a taped record would facilitate constitutional aims without impairing the interview process itself. (Byers, Pp. 1171-1172)
Videotaping, however, may produce unforeseen problems. In State v. Milo (1982), defendant Milo introduced evidence of his mental state by means of a videotape between himself and a psychiatrist. The prosecution did not seek to have Milo examined, but argued that his evidence was not obtained under oath and that he was not subject to cross-examination. Milo was convicted and appealed to the Supreme Court, (Milo v. Ohio, 1982) on the grounds that he was subject to the prosecutor's adverse comments on his failure to testify. While this is an unusual situation (because no one examined Milo for the prosecution), it does highlight the need to exercise caution in anticipating unforeseen consequences. Obviously, there is a distinction between introducing the data upon which a forensic examiner bases his/her inferences and "sneaking in" testimony not subject to cross-examination. Would the prosecutor have been permitted to make such an argument to the jury if both sides had conducted and presented videotaped forensic interviews? --- we think not. Videotaped interviews may also present a problem in those states that would allow indirect evidence obtained as a consequence of information in the interview to be used to develop leads to evidence for use in the guilt phase. In a pre-trial examination conducted before a defendant has plead not guilty by reason of insanity, it is therefore necessary to utilize extreme caution and to be well-informed as to local practice.
Concluding comments.
In this chapter, we have attempted to provide the reader with a broad overview of the insanity defense, and numerous empirical, conceptual and ethical aspects of this area of forensic practice that he or she is likely to confront. We have been forced to be selective, and would therefore advise the reader to pursue many of the excellent empirical and conceptual works cited to gain even further depth. Because the underlying logic and history of the insanity defense occupies a central role in our understanding of psychopathology and in our sense of justice, the controversy which surrounds it can be expected to continue as it has for centuries. We hope, however, that a deeper appreciation of the complex issues will allow forensic practitioners, scholars, and researchers alike to continue to build a knowledge base that will increase the quality of the social-moral decision making that is at the heart of the insanity defense.
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