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The insanity defense, also known as the mental disorder defense, is an affirmative
defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military) A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is ty ...
by
excuse In jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to for ...

excuse
in a
criminal case Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its env ...
, arguing that the defendant is not responsible for their actions due to an episodic or persistent psychiatric disease at the time of the criminal act. This is contrasted with an excuse of
provocation Provocation, provoke or provoked may refer to: * Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions * Agent provocateur, a (generally political) group that tries to goad a desired resp ...
, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state.''Criminal Law - Cases and Materials'', 7th ed. 2012,
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; John Kaplan,
Robert Weisberg Robert I. Weisberg is an American lawyer. He is an Edwin E. Huddleson, Jr. Professor of Law at Stanford Law School, and an expert on criminal law and criminal procedure, as well as a leading scholar in the law and literature movement. Weisberg was ...

Robert Weisberg
, Guyora Binder, ,
It is also contrasted with a finding that a defendant cannot stand trial in a criminal case because a mental disease prevents them from effectively assisting counsel, from a
civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit *Civil affairs *Civil and political rights *Civil disobedience *Civil engineering *Civil (journalism), a platform for independent journalism *Civilian, someone not a member ...
finding in
trusts A trust is a legal relationship in which the holder of a right (eg. title to a chattel) gives it to another person or entity who must keep and use it solely for another's benefit. In English common law English law is the common law legal sy ...
and
estate Estate or The Estate may refer to: Law * Estate (law), a term in common law for a person's property, entitlements and obligations * Estates of the realm, a broad social category in the histories of certain countries. ** The Estates, representative ...
s where a will is nullified because it was made when a mental disorder prevented a
testator A testator () is a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic Logic is an interdisciplinary field which studies trut ...
from recognizing the natural objects of their bounty, and from involuntary
civil commitment Involuntary commitment, civil commitment, or involuntary hospitalization (also known informally as sectioning or being sectioned in some jurisdictions, such as the United Kingdom The United Kingdom of Great Britain and Northern Ireland, co ...
to a mental institution, when anyone is found to be gravely disabled or to be a danger to themselves or to others. Exemption from full criminal punishment on such grounds dates back to at least the
Code of Hammurabi The Code of Hammurabi is a Babylonian legal text composed 1755–1750 BC. It is the longest, best-organised, and best-preserved legal text from the ancient Near East. It is written in the Old Babylonian dialect of Akkadian, purportedly by Ham ...

Code of Hammurabi
. Legal definitions of insanity or mental disorder are varied, and include the
M'Naghten Rule The M'Naghten rule (pronounced, and sometimes spelled, McNaughton) is any variant of the 1840s jury instruction in a criminal case when there is a Insanity defense, defence of insanity: The rule was formulated as a reaction to the acquittal in ...
, the Durham rule, the
1953 British Royal Commission on Capital Punishment report Events January * – American country music singer-songwriter age 29 from alcohol abuse and drug problems, following an undiagnosed case of on his way to a concert at . * – 's play ' has its public stage première in French, ...
, the
ALI ruleThe ALI rule, or American Law Institute Model Penal Code rule, is a recommended rule for instructing juries how to find a defendant A defendant is a person A person (plural people or persons) is a being that has certain capacities or attributes ...
(American Legal Institute Model Penal Code rule), and other provisions, often relating to a lack of ''
mens rea ''Mens rea'' (; Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin Dog Latin, also known as Cod Latin, macaronic Latin, mock Latin, or Canis Latinicus, refers to the creation of a phrase In every ...
'' ("guilty mind"). In the
criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its env ...
s of Australia and Canada, statutory legislation enshrines the ''M'Naghten Rules'', with the terms defense of mental disorder, defense of mental illness or not criminally responsible by reason of mental disorder employed. Being incapable of distinguishing right from wrong is one basis for being found to be legally insane as a
criminal defense In the field of criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded ...
. It originated in the ''M'Naghten Rule'', and has been reinterpreted and modernized through more recent cases, such as '' People v. Serravo''. In the United Kingdom, Ireland, and the United States, use of the defense is rare. Mitigating factors, including things not eligible for the insanity defense such as intoxication (or, more frequently,
diminished capacity ''Diminished Capacity'' is a 2008 comedy film directed by Terry Kinney Terry Kinney (born January 29, 1954) is an American actor and theatre director, and is a founding member of the Steppenwolf Theatre Company, with John Malkovich, Laurie Me ...
), may lead to reduced charges or reduced sentences. The defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the jury, but they are not allowed to testify to the accused's criminal responsibility, as this is a matter for the jury to decide. Similarly, mental health practitioners are restrained from making a judgment on the "ultimate issue"—whether the defendant is insane. Some jurisdictions require the evaluation to address the defendant's ability to control their behavior at the time of the offense (the volitional limb). A defendant claiming the defense is pleading "not guilty by reason of insanity" (NGRI) or "guilty but insane or mentally ill" in some jurisdictions which, if successful, may result in the defendant being committed to a psychiatric facility for an indeterminate period.


Non compos mentis

''
Non compos mentis ''Non compos mentis'' is a List of legal Latin terms, Latin legal phrase that translates to "of unsound mind": ''nōn'' ("not") prefaces ''compos mentis'', meaning "having control of one's mind". This phrase was first used in thirteenth-century En ...
'' (Latin) is a legal term meaning "not of sound mind". ''Non compos mentis'' derives from the
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Republic, it became ...

Latin
''non'' meaning "not", ''compos'' meaning "having command" or "composed", and ''mentis'' (
genitive In grammar In linguistics Linguistics is the scientific study of language, meaning that it is a comprehensive, systematic, objective, and precise study of language. Linguistics encompasses the analysis of every aspect of language, a ...
singular Singular may refer to: * Singular, the grammatical number In linguistics, grammatical number is a grammatical category of nouns, pronouns, adjectives, and verb agreement (linguistics), agreement that expresses count distinctions (such as "one", ...
of ''
mens In , Mens, also known as Mens Bona ( for "Good Mind"), was the of thought, consciousness and the mind, and also of "right-thinking". Her festival was celebrated on June 8. A temple on the in Rome was vowed to Mens in 217 BC on advice from the , a ...
''), meaning "of mind". It is the direct opposite of ''
Compos mentis A number of Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Rep ...
'' (of a sound mind). Although typically used in law, this term can also be used metaphorically or figuratively; e.g. when one is in a confused state, intoxicated, or not of sound mind. The term may be applied when a determination of competency needs to be made by a physician for purposes of obtaining
informed consent Informed consent is a principle in medical ethics Medical ethics is an applied branch of ethics Ethics or moral philosophy is a branch of philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those a ...
for treatments and, if necessary, assigning a surrogate to make health care decisions. While the proper sphere for this determination is in a court of law, this is practically, and most frequently, made by physicians in the clinical setting. In English law, the rule of ''non compos mentis'' was most commonly used when the defendant invoked religious or magical explanations for behaviour.


History

The concept of defense by insanity has existed since
ancient Greece Ancient Greece ( el, Ἑλλάς, Hellás) was a civilization belonging to a period of History of Greece, Greek history from the Greek Dark Ages of the 12th–9th centuries BC to the end of Classical Antiquity, antiquity ( AD 600). This era wa ...
and
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Rome
. However, in
colonial America The colonial history of the United States covers the history of European colonization of North America from the early 17th century until the incorporation of the Thirteen Colonies into the United States of America, after the American Revolu ...
a
delusion A delusion is a false fixed belief that is not amenable to change in light of conflicting evidence. As a pathology, it is distinct from a belief based on false or incomplete information, confabulation, dogma, illusion, hallucination, or some ot ...

delusion
al Dorothy Talbye was
hanged Hanging is the suspension of a person by a noose A noose is a loop at the end of a rope A rope is a group of yarn Yarn is a long continuous length of interlocked fibres, suitable for use in the production of textiles, sewing, croc ...

hanged
in 1638 for murdering her daughter, as at the time
Massachusetts Massachusetts (, ), officially the Commonwealth of Massachusetts, is the most populous state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * ...

Massachusetts
's
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
made no distinction between
insanity Insanity, madness, and craziness are terms that describe a spectrum A spectrum (plural ''spectra'' or ''spectrums'') is a condition that is not limited to a specific set of values but can vary, without gaps, across a continuum Continuum ma ...

insanity
(or
mental illness A mental disorder, also called a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing In internal medici ...
) and criminal behavior.
Edward II Edward II (25 April 1284 – 21 September 1327), also called Edward of Caernarfon, was King of England This list of kings and queens of the begins with , who initially ruled , one of the which later made up modern England. A ...

Edward II
, under English Common law, declared that a person was insane if their mental capacity was no more than that of a "wild beast" (in the sense of a dumb animal, rather than being frenzied). The first complete transcript of an insanity trial dates to 1724. It is likely that the insane, like those under 14, were spared
trial by ordeal Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience. In medieval In the history of Euro ...
. When trial by jury replaced this, the jury members were expected to find the insane guilty but then refer the case to the King for a Royal Pardon. From 1500 onwards, juries could acquit the insane, and detention required a separate civil procedure., pp15–16. The Criminal Lunatics Act 1800, passed with retrospective effect following the acquittal of
James Hadfield James Hadfield or Hatfield (1771/1772 – 23 January 1841) attempted to assassinate George III of the United Kingdom George III (George William Frederick; 4 June 173829 January 1820) was King of Great Britain and Ireland Ireland (; ...
, mandated detention at the regent's pleasure (indefinitely) even for those who, although insane at the time of the offence, were now sane. The
M'Naghten Rules The M'Naghten rule (pronounced, and sometimes spelled, McNaughton) is any variant of the 1840s jury instruction in a criminal case when there is a defence of insanity: The rule was formulated as a reaction to the acquittal in 1843 of Daniel ...
of 1843 were not a codification or definition of insanity but rather the responses of a panel of judges to hypothetical questions posed by Parliament in the wake of
Daniel M'Naghten Daniel M'Naghten (sometimes spelled McNaughtan or McNaughton) (1813–3 May 1865) was a Scottish woodturner who assassinated English civil servant Edward Drummond while suffering from paranoid delusion A delusion is a fixed belief that is ...
's acquittal for the homicide of Edward Drummond, whom he mistook for
British British may refer to: Peoples, culture, and language * British people The British people, or Britons, are the citizens of the United Kingdom of Great Britain and Northern Ireland The United Kingdom of Great Britain and Northern Ir ...

British
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Robert Peel Sir Robert Peel, 2nd Baronet, (5 February 1788 – 2 July 1850) was a British Conservative Party (UK), Conservative statesman who served twice as Prime Minister of the United Kingdom (1834–1835 and 1841–1846) simultaneously serving as Cha ...

Robert Peel
. The rules define the defense as "at the time of committing 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 as not to know that what he was doing was wrong.". The key is that the defendant could not appreciate the nature of his actions during the commission of the crime. In '' Ford v. Wainwright'' 477 U.S. 399 (1986), the
US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or Americ ...

US Supreme Court
upheld the
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
rule that the insane cannot be
executed Capital punishment, also known as the death penalty, is the State (polity), state-sanctioned killing of a person as punishment for a crime. The sentence (law), sentence ordering that someone is punished with the death penalty is called a dea ...
. It further stated that a person under the death penalty is entitled to a competency evaluation and to an evidentiary hearing in court on the question of his competency to be executed. In '' Wainwright v. Greenfield'', the Court ruled that it was fundamentally unfair for the
prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by co ...
to comment during the court proceedings on the petitioner's silence invoked as a result of a
Miranda warning#REDIRECT Miranda warning In the United States The United States of America (USA), commonly known as the United States (U.S. or US), or America, is a country Contiguous United States, primarily located in North America. It consists of 5 ...
. The prosecutor had argued that the respondent's silence after receiving Miranda warnings was evidence of his sanity.


Application


Incompetency and mental illness

An important distinction to be made is the difference between competency and criminal responsibility. *The issue of competency is whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and whether to plead guilty, accept a plea agreement or plead not guilty. This issue is dealt with in law as "
fitness to pleadIn the law of England and Wales, fitness to plead is the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. The concept of fitness to plead also applies in Scots law, Scots and Law of the Republic of Irelan ...
". Competency largely deals with the defendant's present condition, while criminal responsibility addresses the condition at the time the crime was committed. In the United States, a trial in which the insanity defense is invoked typically involves the testimony of
psychiatrist A psychiatrist is a physician A physician (American English), medical practitioner (English in the Commonwealth of Nations, Commonwealth English), medical doctor, or simply doctor, is a professional who practices medicine, which is c ...
s or
psychologist A psychologist is a professional who practices psychology and studies normal and abnormal mental states, perceptual, cognitive, emotional, and social processes and behavior by experimenting with, and observing, interpreting, and recording how ...
s who will, as
expert witness An expert witness, particularly in common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written ...
es, present opinions on the defendant's state of mind at the time of the offense. Therefore, a person whose mental disorder is not in dispute is determined to be sane if the court decides that despite a "mental illness" the defendant was responsible for the acts committed and will be treated in court as a normal defendant. If the person has a mental illness and it is determined that the mental illness interfered with the person's ability to determine right from wrong (and other associated criteria a jurisdiction may have) and if the person is willing to plead guilty or is proven guilty in a court of law, some jurisdictions have an alternative option known as either a Guilty but Mentally Ill (GBMI) or a Guilty but Insane verdict. The GBMI verdict is available as an alternative to, rather than in lieu of, a "not guilty by reason of insanity" verdict.
Michigan Michigan () is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspaper), a daily newspaper ...

Michigan
(1975) was the first state to create a GBMI verdict, after two prisoners released after being found NGRI committed violent crimes within a year of release, one raping two women and the other killing his wife.


Temporary insanity

The notion of temporary insanity argues that a defendant ''was'' insane during the commission of a crime, but they later regained their sanity after the criminal act was carried out. This legal defense is commonly used to defend individuals that have committed
crimes of passion A crime of passion (French: ''crime passionnel''), in popular usage, refers to a violent crime, especially homicide, in which the perpetrator commits the act against someone because of sudden strong impulse such as sudden rage rather than as a ...
. The defense was first successfully used by U.S. Congressman
Daniel Sickles Daniel Edgar Sickles (October 20, 1819May 3, 1914) was an American politician, soldier, and diplomat. Born to a wealthy family in New York City New York City (NYC), often simply called New York, is the List of United States cities by popula ...

Daniel Sickles
of
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * New ...
in 1859 after he had killed his wife's lover,
Philip Barton Key Philip Barton Key (April 12, 1757 – July 28, 1815), was an American Loyalist Loyalism, in the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is ...
.


Mitigating factors and diminished capacity

The
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the Federal judiciary of the United States, federal judiciary of the United States of America. It has ultimate and largely Procedures of the Supreme Court of the United ...

United States Supreme Court
(in '' Penry v. Lynaugh'') and the
United States Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a United States federal court, federal court with appellate jurisdiction over the United States district court, district courts in the following United Stat ...
(in ''
Bigby v. Dretke ''Bigby v. Dretke'' 402 F.3d 551 (5th Cir. 2005), the U.S. Court of Appeals for the Fifth Circuit heard a case appealed from the United States District Court for the Northern District of Texas The United States District Court for the Northern Dis ...
'') have been clear in their decisions that
jury instructions Jury instructions, directions to the jury, or judge's charge are legal law, rules that jurors should follow when deciding a case. They are a type of jury control procedures, jury control procedure to support a fair trial. Description Jury inst ...
in death penalty cases that do not ask about
mitigating factor In criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and inf ...
s regarding the defendant's
mental health Mental health is "a state of well-being Well-being, also known as ''wellness'', ''prudential value'' or ''quality of life'', refers to what is intrinsically valuable relative ''to'' someone. So the well-being of a person is what is ultimatel ...

mental health
violate the defendant's Eighth Amendment rights, saying that the jury is to be instructed to consider mitigating factors when answering unrelated questions. This ruling suggests specific explanations to the jury are necessary to weigh mitigating factors. Diminished responsibility or diminished capacity can be employed as a mitigating factor or partial defense to crimes. In the United States, diminished capacity is applicable to more circumstances than the insanity defense. The Homicide Act 1957 is the statutory basis for the defense of diminished responsibility in England and Wales, whereas in Scotland it is a product of case law. The number of findings of diminished responsibility has been matched by a fall in unfitness to plead and insanity findings. A plea of diminished capacity is different from a plea of insanity in that "reason of insanity" is a full defense while "diminished capacity" is merely a plea to a lesser crime.


Withdrawal or refusal of defense

Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in a
habeas (; from Medieval Latin Medieval Latin was the form of Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin '' ...
petition to pursue an alternative, although there have been exceptions in other rulings. In Colorado v. Connelly, 700 A.2d 694 (Conn. App. Ct. 1997), the petitioner who had originally been found not guilty by reason of insanity and committed for ten years to the jurisdiction of a Psychiatric Security Review Board, filed a
pro se ''Pro se'' legal representation ( or ) comes from Latin ''pro se'', meaning "for oneself" or "on behalf of themselves", which in modern law means to argue on one's own behalf in a legal proceedingLegal proceeding is an activity that seeks to in ...
writ of ''
habeas corpus (; from Medieval Latin Medieval Latin was the form of Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin '' ...
'' and the court vacated his insanity acquittal. He was granted a new trial and found guilty of the original charges, receiving a prison sentence of 40 years. In the
landmark case Landmark court decisions, in present-day common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is ...
of '' Frendak v. United States'' in 1979, the court ruled that the insanity defense cannot be imposed upon an unwilling defendant if an intelligent defendant voluntarily wishes to forgo the defense.


Usage

This increased coverage gives the impression that the defense is widely used, but this is not the case. According to an eight-state study, the insanity defense is used in less than 1% of all court cases and, when used, has only a 26% success rate. Of those cases that were successful, 90% of the defendants had been previously diagnosed with mental illness.


Psychiatric treatment

Those found to have been not guilty by reason of mental disorder or insanity are generally then required to undergo
psychiatric Psychiatry is the specialty (medicine), medical specialty devoted to the diagnosis, prevention, and treatment of mental disorders. These include various maladaptations related to mood, behaviour, cognition, and perceptions. See glossary of psyc ...
treatment in a mental institution, except in the case of temporary insanity (
see below See or SEE may refer to: Arts, entertainment, and media * Music: ** See (album), ''See'' (album), studio album by rock band The Rascals *** "See", song by The Rascals, on the album ''See'' ** See (Tycho song), "See" (Tycho song), song by Tycho * T ...
). In England and Wales, under the Criminal Procedure (Insanity and Unfitness to Plead) Act of 1991 (amended by the Domestic Violence, Crime and Victims Act, 2004 to remove the option of a guardianship order), the court can mandate a hospital order, a restriction order (where release from hospital requires the permission of the Home Secretary), a "supervision and treatment" order, or an absolute discharge. Unlike defendants who are found guilty of a crime, they are not institutionalized for a fixed period, but rather held in the institution until they are determined not to be a threat. Authorities making this decision tend to be cautious, and as a result, defendants can often be institutionalized for longer than they would have been incarcerated in prison.


Worldwide


Australia

In Australia there are nine law units, each of which may have different rules governing mental impairment defenses.


South Australia

In
South Australia South Australia (abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Austral ...

South Australia
, the Criminal Law Consolidation Act 1935 (SA) provides that: 269C—Mental competence A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment— :(a) does not know the nature and quality of the conduct; or :(b) does not know that the conduct is wrong; or :(c) is unable to control the conduct. 269H—Mental unfitness to stand trial A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is— :(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or :(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or :(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.


Victoria

In
Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelles ...
the current defence of mental impairment was introduced in the ''Crimes (Mental Impairment and Unfitness to be Tried) Act'' 1997 which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following: :the accused was suffering from a mental impairment; and :the mental impairment affected the accused so they either did not understand the nature and quality of the conduct, or did not know that it was wrong. These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind".


New South Wales

In New South Wales, the defence has been renamed the 'Defence of Mental Illness' in Part 4 of the ''Mental Health (Forensic Provisions) Act 1990''. However, definitions of the defence are derived from M'Naghten's case and have not been codified. Whether a particular condition amounts to a disease of the mind is not a medical but a legal question to be decided in accordance with the ordinary rules of interpretation. This defence is an exception to the ''Woolmington v DPP'' (1935) 'golden thread', as the party raising the issue of the defence of mental illness bears the burden of proving this defence on the balance of probabilities.. Generally, the defence will raise the issue of insanity. However, the prosecution can raise it in exceptional circumstances: ''R v Ayoub (1984).'' Australian cases have further qualified and explained the ''M'Naghten Rules''. The NSW Supreme Court has held there are two limbs to the ''M'Naghten Rules'', that the accused did not know what he was doing, or that the accused did not appreciate that what he was doing was morally wrong, in both cases the accused must be operating under a 'defect of reason, from a disease of the mind'. The High Court i
''R v Porter''
stated that the condition of the accused's mind is relevant only at the time of the
actus reus ''Actus reus'' (), sometimes called the external element or the objective element of a crime, is the Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was ...
. In ''Woodbridge v The Queen'' the court stated that a symptom indicating a disease of the mind must be prone to recur and be the result of an underlying pathological infirmity. A ‘defect of reason’ is the inability to think rationally and pertains to incapacity to reason, rather than having unsound ideas or difficulty with such a task. Examples of disease of the mind include Arteriosclerosis (considered so because the hardening of the arteries affects the mind.


Canada


Criminal Code provisions

The defence of mental disorder is codified in section 16 of the ''
Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law Criminal law is the body of law Law is a system A system is a group of Interaction, interactin ...
'' which states, in part: :''16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a
mental disorder A mental disorder, also called a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing In internal medici ...
that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.'' To establish a claim of mental disorder the party raising the issue must show on a
balance of probabilities Burden of proof is a legal duty that encompasses two connected but separate ideas that apply for establishing the truth of facts in a trial before tribunals in the United States: the "burden of production" and the "burden of persuasion." In a lega ...
first that the person who committed the act was suffering from a "disease of the mind", and second, that at the time of the offence they were either 1) unable to appreciate the "nature and quality" of the act, or 2) did not know it was "wrong". The meaning of the word "wrong" was determined in the Supreme Court case of '' R. v. Chaulk'' 3_S.C.R..html" ;"title="990
[1990
3 S.C.R.">990
[1990
3 S.C.R. which held that "wrong" was NOT restricted to "legally wrong" but to "morally wrong" as well.


Post-verdict conditions

The current legislative scheme was created by the Parliament of Canada after the previous scheme was found unconstitutional by the
Supreme Court of Canada Supreme may refer to: * Supreme (brand), a clothing brand based in New York * Supreme (comics), a comic book superhero * Supreme (cookery), a term used in cookery * Supreme (film), ''Supreme'' (film), a 2016 Telugu film * Supreme (producer), hip-h ...

Supreme Court of Canada
in ''R. v. Swain''. The new provisions also replaced the old insanity defense with the current mental disorder defence. Once a person is found not criminally responsible ("NCR"), they will have a hearing by a Review Board within 45 days (90 days if the court extends the delay). A Review Board is established under Part XX.1 of the ''Criminal Code'' and is composed of at least three members, a person who is a judge or eligible to be a judge, a psychiatrist and another expert in a relevant field, such as social work, criminology or psychology. Parties at a Review Board hearing are usually the accused, the Crown and the hospital responsible for the supervision or assessment of the accused. A Review Board is responsible for both accused persons found NCR or accused persons found unfit to stand trial on account of mental disorder. A Review Board dealing with an NCR offender must consider two questions: whether the accused is a "significant threat to the safety of the public" and, if so, what the "least onerous and least restrictive" restrictions on the liberty of the accused should be in order to mitigate such a threat. Proceedings before a Review Board are inquisitorial rather than adversarial. Often the Review Board will be active in conducting an inquiry. Where the Review Board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused. Otherwise, the Review Board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accused may pose to others. Since the Review Board is empowered under criminal law powers under s. 91(27) of the ''
Constitution Act, 1867 The ''Constitution Act, 1867'The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. (french: Loi constitutionnelle de 1867, originally enacted as ''The British North America Act, 1867 ...
'' the sole justification for its jurisdiction is public safety. Therefore, the nature of the inquiry is the danger the accused may pose to public safety rather than whether the accused is "cured". For instance, many "sick" accused persons are discharged absolutely on the basis that they are not a danger to the public while many "sane" accused are detained on the basis that they are dangerous. Moreover, the notion of "significant threat to the safety of the public" is a "criminal threat". This means that the Review Board must find that the threat posed by the accused is of a criminal nature. While proceedings before a Review Board are less formal than in court, there are many procedural safeguards available to the accused given the potential indefinite nature of Part XX.1. Any party may appeal against the decision of a Review Board. In 1992 when the new mental disorder provisions were enacted, Parliament included "capping" provisions which were to be enacted at a later date. These capping provisions limited the jurisdiction of a Review Board over an accused based on the maximum potential sentence had the accused been convicted (e.g. there would be a cap of 5 years if the maximum penalty for the index offence is 5 years). However, these provisions were never proclaimed into force and were subsequently repealed. A Review Board must hold a hearing every 12 months (unless extended to 24 months) until the accused is discharged absolutely.


Accused unfit to stand trial

The issue of mental disorder may also come into play before a trial even begins if the accused's mental state prevents the accused from being able to appreciate the nature of a trial and to conduct a defence. An accused who is found to be unfit to stand trial is subject to the jurisdiction a Review Board. While the considerations are essentially the same, there are a few provisions which apply only to unfit accused. A Review Board must determine whether the accused is fit to stand trial. Regardless of the determination, the Review Board must then determine what conditions should be imposed on the accused, considering both the protection of the public and the maintenance of the fitness of the accused (or conditions which would render the accused fit). Previously an absolute discharge was unavailable to an unfit accused. However, in R. v. Demers, the
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Supreme Court of Canada
struck down the provision restricting the availability of an absolute discharge to an accused person who is deemed both "permanently unfit" and not a significant threat to the safety of the public. Presently a Review Board may recommend a judicial stay of proceedings in the event that it finds the accused both "permanently unfit" and non-dangerous. The decision is left to the court having jurisdiction over the accused. An additional requirement for an unfit accused is the holding of a "prima facie case" hearing every two years. The Crown must demonstrate to the court having jurisdiction over the accused that it still has sufficient evidence to try the accused. If the Crown fails to meet this burden then the accused is discharged and proceedings are terminated. The nature of the hearing is virtually identical to that of a
preliminary hearing Within some criminal justice system 350px, United States criminal justice system flowchart. Criminal justice is the delivery of justice Justice, one of the four cardinal virtues, by Vitruvio Alberi, 1589–1590. Fresco, corner of the vau ...
.


Denmark

In Denmark a psychotic person who commits a criminal defense is declared guilty but is sentenced to mandatory treatment instead of prison. Section 16 of the penal code states that "Persons, who, at the time of the act, were irresponsible owing to mental illness or similar conditions or to a pronounced mental deficiency, are not punishable". This means that in Denmark, 'insanity' is a legal term rather than a medical term and that the court retains the authority to decide whether an accused person is irresponsible.


Finland

In Finland, punishments can only be administered if the accused is ''
compos mentis A number of Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Rep ...
'', of sound mind; not if the accused is insane (''syyntakeeton'', literally "unable to guarantee houlder the responsibility ofguilt"). Thus, an insane defendant may be Corpus delicti, found guilty based on the facts and his actions just as a sane defendant, but the insanity will only affect the punishment. The definition of insanity is similar to the M'Naught criterion above: "the accused is insane, if during the act, due to a mental illness, profound mental retardation or a severe disruption of mental health or consciousness, he cannot understand the actual nature of his act or its illegality, or that his ability to control his behavior is critically weakened". If an accused is suspected to be insane, the court must consult the National Institute for Health and Welfare (Finland), National Institute for Health and Welfare (THL), which is obliged to place the accused in involuntary commitment if he is found insane. The offender receives no judicial punishment; he becomes a patient under the jurisdiction of THL, and must be released immediately once the conditions of involuntary commitment are no longer fulfilled. Diminished responsibility is also available, resulting in lighter sentences.


Germany

According t
section 20
of the Strafgesetzbuch, German criminal code, those who commit an illegal act because a mental disorder makes them unable to see the wrong of the act or to act on this insight is considered not Guilt (law), guilty.


Norway

In Norway, psychotic perpetrators are declared guilty but not punished and, instead of prison, they are sentenced to mandatory treatment. Section 44 of the penal code states specifically that "a person who at the time of the crime was insane or unconscious is not punished". It is the responsibility of a criminal court to consider whether the accused may have been psychotic or suffering from other severe mental defects when perpetrating a criminal act. Thus, even though he himself declared to be sane, the court hearing the case of Anders Behring Breivik considered the question of his sanity.


Japan

If the ability to recognize the right or wrong of action or the ability to act accordingly is lost due to a mental disorder, then the defendant cannot be pursued under Japanese criminal law so if this is recognized during a trial then an innocent judgment will be given. This is, however, rare, happening in only around 1 in 500,000 cases.


Poland

Insanity is determined through a judicial decision issued on the basis of expert opinions of psychiatrists and psychologists.


Russia

A forensic psychiatric examination is used to establish insanity. The result of the forensic examination is then subjected to a legal assessment, taking into account other circumstances of the case, from which a conclusion is drawn about the defendants sanity or insanity. The Criminal Code of Russia establishes that a person who during the commission of an illegal act was in a state of insanity, that is, could not be aware of the actual nature and social danger of their actions or was unable to control their actions due to a chronic mental disorder, a temporary mental disorder, or dementia is not subject to criminal liability.


Sweden

In Sweden, psychotic perpetrators are seen as accountable, but the sanction is, if they are psychotic at the time of the trial, forensic mental care.


United Kingdom

Although use of the insanity defense is rare, since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, insanity pleas have steadily increased in the UK.


Scotland

The Scottish Law Commission, in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003), pp. 16/18, confirms that the law has not substantially changed from the position stated in Hume's Commentaries: :We may next attend to the case of those unfortunate persons, who have plead the miserable defense of idiocy or insanity. Which condition, if it is not an assumed or imperfect, but a genuine and thorough insanity, and is proved by the testimony of intelligent witnesses, makes the act like that of an infant, and equally bestows the privilege of an entire exemption from any manner of pain; ''Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat''. I say, where the insanity is absolute, and is duly proved: For if reason and humanity enforce the plea in these circumstances, it is no less necessary to observe a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humor, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender. Because such constitutions are not exclusive of a competent understanding of the true state of the circumstances in which the deed is done, nor of the subsistence of some steady and evil passion, grounded in those circumstances, and directed to a certain object. To serve the purpose of a defense in law, the disorder must therefore amount to an absolute alienation of reason, ''ut continua mentis alienatione, omni intellectu careat'' - such a disease as deprives the patient of the knowledge of the true aspect and position of things about him - hinders him from distinguishing friend from foe - and gives him up to the impulse of his own distempered fancy. The phrase "absolute alienation of reason" is still regarded as at the core of the defense in the modern law (see ''HM Advocate v Kidd'' (1960) JC 61 and ''Brennan v HM Advocate'' (1977)


United States

In the United States, variances in the insanity defense between states, and in the federal court system, are attributable to differences with respect to three key issues: #Availability: whether the jurisdiction allows a defendant to raise the insanity defense, #Definition: when the defense is available, what facts will support a finding of insanity, and #Burden of proof: whether the defendant has the duty of proving insanity or the prosecutor has the duty of disproving insanity, and by what Burden of proof (law), standard of proof. In ''Foucha v. Louisiana'' (1992) the Supreme Court of the United States ruled that a person could not be held "indefinitely" for psychiatric treatment following a finding of not guilty by reason of insanity.


Availability

In the United States, a criminal defendant may plead insanity in federal court, and in the state courts of every state except for Idaho, Kansas, Montana, and Utah. However, defendants in states that disallow the insanity defense may still be able to demonstrate that a defendant was not capable of forming intent to commit a crime as a result of mental illness. In ''Kahler v. Kansas'' (2020), the Supreme Court of the United States, U.S. Supreme Court held, in a 6–3 ruling, that a state does not violate the Due Process Clause by abolishing an insanity defense based on a defendant's incapacity to distinguish right from wrong. The Court emphasized that state governments have broad discretion to choose laws defining "the precise relationship between criminal culpability and mental illness."


Definition

Each state and the federal court system currently uses one of the following "tests" to define insanity for purposes of the insanity defense. Over its decades of use the definition of insanity has been modified by statute, with changes to the availability of the insanity defense, what constitutes legal insanity whether the prosecutor or defendant has the Burden of proof (law), burden of proof, the standard of proof required at trial, trial procedures, and to commitment and release procedures for defendants who have been acquitted based on a finding of insanity.


=M'Naghten test

= The guidelines for the ''
M'Naghten Rules The M'Naghten rule (pronounced, and sometimes spelled, McNaughton) is any variant of the 1840s jury instruction in a criminal case when there is a defence of insanity: The rule was formulated as a reaction to the acquittal in 1843 of Daniel ...
'', state, among other things, and evaluating the criminal responsibility for defendants claiming to be insane were settled in the British courts in the case of Daniel M'Naghten in 1843. M'Naghten was a Scottish woodcutter who killed the secretary to the prime minister, Edward Drummond, in a botched attempt to assassinate the prime minister himself. M'Naghten apparently believed that the prime minister was the architect of the myriad of personal and financial misfortunes that had befallen him. During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him "not guilty by reason of insanity". The House of Lords asked the judges of the common law courts to answer five questions on insanity as a criminal defence, and the formulation that emerged from their review—that a defendant should not be held responsible for his actions only if, as a result of his mental disease or defect, he (i) did not know that his act would be wrong; or (ii) did not understand the nature and quality of his actions—became the basis of the law governing legal responsibility in cases of insanity in England. Under the rules, loss of control because of mental illness was no defense. The M'Naghten rule was embraced with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century.


=''Durham''/New Hampshire test

= The strict M'Naghten standard for the insanity defense was widely used until the 1950s and the case of ''Durham v. United States (1954), Durham v. United States'' case. In the ''Durham'' case, the court ruled that a defendant is entitled to acquittal if the crime was the ''product of'' his mental illness (i.e., crime would not have been committed but for the disease). The test, also called the Product Test, is broader than either the M'Naghten test or the irresistible impulse test. The test has more lenient guidelines for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M'Naghten Rule. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.


=Model Penal Code test

= The Model Penal Code, published by the American Law Institute, provides a standard for legal insanity that serves as a compromise between the strict M'Naghten Rule, the lenient Durham ruling, and the irresistible impulse test. Under the MPC standard, which represents the modern trend, a defendant is not responsible for criminal conduct "if at the time of such conduct as a result of mental disease or defect he lacks ''substantial capacity'' either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." The test thus takes into account both the Cognition, cognitive and Volition (psychology), volitional capacity of insanity.


=Federal courts

= After the John Hinckley Jr., perpetrator of Reagan assassination attempt, President Reagan's assassination attempt was found not guilty by reason of insanity, Congress passed the Insanity Defense Reform Act of 1984. Under this act, the legal burden of proof, burden of proof was shifted from the prosecution to the defense and the standard of evidence in federal trials was increased from a preponderance of the evidence, preponderance of evidence to clear and convincing evidence. The ALI test was discarded in favor of a new test that more closely resembled M'Naghten's. Under this new test only perpetrators suffering from severe mental illnesses at the time of the crime could successfully employ the insanity defense. The defendant's ability to control himself or herself was no longer a consideration. The Act also curbed the scope of expert psychiatric testimony and adopted stricter procedures regarding the hospitalization and release of those found not guilty by reason of insanity. Those acquitted of a federal offense by reason of insanity have not been able to challenge their psychiatric confinement through a writ of habeas corpus or other remedies. In ''Archuleta v. Hedrick'', 365 F.3d 644 (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit the court ruled persons found not guilty by reason of insanity and later want to challenge their confinement may not attack their initial successful insanity defense:


=Guilty but mentally ill

= As an alternative to the insanity defense, some jurisdictions permit a defendant to plead guilty but mentally ill. A defendant who is found guilty but mentally ill may be sentenced to mental health treatment, at the conclusion of which the defendant will serve the remainder of their sentence in the same manner as any other defendant.


Burden of proof

In a majority of states, the burden of proving insanity is placed on the defendant, who must prove insanity by a Burden of proof (law)#Preponderance of the evidence, preponderance of the evidence. In a minority of states, the burden is placed on the prosecution, who must prove sanity Reasonable doubt, beyond reasonable doubt. In federal court, and in Arizona, the burden is placed on the defendant, who must prove insanity by Burden of proof (law)#Clear and convincing evidence, clear and convincing evidence. See 18 U.S.C.S. Sec. 17(b); see also A.R.S. Sec. 13-502(C).


Controversy

The insanity plea is used in the U.S Criminal Justice System in less than 1% of all Criminal law, criminal cases. Little is known about the criminal justice system and the mentally ill: Some U.S. states have begun to ban the use of the insanity defense, and in 1994 the Supreme Court denied a petition of certiorari seeking review of a Montana Supreme Court case that upheld Montana's abolition of the defense. Idaho, Kansas, and Utah have also banned the defense. However, a mentally ill defendant/patient can be found Competence (law)#Competence to stand trial, unfit to stand trial in these states. In 2001, the Supreme Court of Nevada, Nevada Supreme Court found that their state's abolition of the defense was unconstitutional as a violation of Federal due process. In 2006, the Supreme Court decided ''Clark v. Arizona'' upholding Arizona's limitations on the insanity defense. In that same ruling, the Court noted "We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require." In 2020, the Supreme Court decided ''Kahler v. Kansas'' upholding Kansas' abolition of the insanity defense, stating that the Constitution does not require Kansas to adopt an insanity test that turns on a defendant's ability to recognize that his crime was morally wrong. The insanity defense is also complicated because of the underlying differences in philosophy between psychiatrists/psychologists and legal professionals. In the United States, a psychiatrist, psychologist or other mental health professional is often consulted as an expert witness in insanity cases, but the ultimate ''legal'' judgment of the defendant's sanity is determined by a jury, not by a mental health professional. In other words, mental health professionals provide testimony and professional opinion but are not ultimately responsible for answering legal questions.


See also

*''Archuleta v. Hedrick'' *''By Reason of Insanity'', a documentary about a hospital in Ohio housing the guilty-but-insane *Diminished responsibility (or "Limited Sanity") *'' Frendak v. United States'' *Intoxication defence *Mentally ill people in American prisons *M'Naghten rules *''NCR: Not Criminally Responsible'', a Canadian documentary film about the mental disorder defense *
Non compos mentis ''Non compos mentis'' is a List of legal Latin terms, Latin legal phrase that translates to "of unsound mind": ''nōn'' ("not") prefaces ''compos mentis'', meaning "having control of one's mind". This phrase was first used in thirteenth-century En ...
*''Nulla poena sine culpa'' *Sanity *Settled insanity *State v. Strasburg *Twinkie defense *United States federal laws governing offenders with mental diseases or defects


References


Further reading

*Boland, F. (1996). "Insanity, the Irish Constitution and the European Convention on Human Rights". 47 ''Northern Ireland Legal Quarterly'' 260. *Brown, M. (2007).
The John Hinckley Trial & Its Effect on the Insanity Defense
. * *Butler Committee. (1975). ''The Butler Committee on Mentally Abnormal Offenders'', London: HMSO, Cmnd 6244 * . *Ellis, J. W. (1986). "The Consequences of the Insanity Defense: Proposals to reform post-acquittal commitment laws". 35 ''Catholic University Law Review'' 961. *Gostin, L. (1982). "Human Rights, Judicial Review and the Mentally Disordered Offender". (1982) ''Crim. LR'' 779. *Vatz, R. (December 19, 2013). “Affluenza: just the latest way to shirk legal responsibility”. ''The Baltimore Sun'' op-ed page. * * at p. 30


External links



*[https://web.archive.org/web/20080914170410/http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/hinckleyinsanity.htm Evolution of the Insanity Plea]
Survey of US states' insanity defense criteria
{{DEFAULTSORT:Insanity Defense Criminal defenses Criminology Forensic psychiatry Insanity in law, Defense Legal ethics it:Capacità di intendere e di volere ja:責任能力#刑法上の責任能力