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Another Look at the Insanity Defence in a Court of Law

Special Reports

The insanity defence is viewed differently by professional psychologists/psychiatrists and the legal profession. This is mainly due to the law assuming man has free will. There have been a number of criteria of judging insanity. These include: the Irresistible Impulse Test, and the Durham Test, but the most commonly used is the McNaghten Test.

Solicitors/Barristers and the Judiciary need also to determine whether an individual is fit to stand trial as determined by expert witnesses such as psychologists
and psychiatrists. It is their joint effort to decide a diagnosis of insanity or any other mental illness being present or not.

It has long been known that the view of insanity is seen by the law very differently from those working as expert witnesses for the courts such as psychologists
and psychiatrists. The law assumes that man has free will. It is the view of the psychologist and others working in the area of psychological assessment that man does not in fact always have free will. Interaction of those who deal solely with the law are becoming increasingly aware of the mental health field and forensic psychology (Brendel & Glezer, 2010; Roesch, et al.. 2010).

A number of tests or criteria have been used, mainly in the United States to provide evidence for the psychological aspects of a serious crime. Not guilty by reason of insanity (NGBRI) says that a defendant is not guilty of committing a crime if they are insane at the time that the crime was committed. The Irresistible Impulse Test is again a legal test of insanity which holds that people are insane if at the time they committed a crime they were driven to it by an uncontrollable fit of passion. The Durham Test is also for the assessment of insanity and holds people to be considered insane at the time they committed a crime if they acted as the result of a mental disorder or defect. Finally, the oldest test is the McNaghten Test which states that a mental disorder which led to the individual not knowing the nature of their actions or not knowing wrong from right. This would be the criteria for insanity.

If we combine all of these criteria or tests the result is something like: People do things that show them not to have free will due to their psychological problems
which limit free will and they suffer from a mental disorder or defect leading to not knowing right from wrong. This may be a permanent or temporary state
of mind when they are unable to control themselves to prevent the crime from occurring. They will undoubtedly in some cases not know right from wrong at the time of the commission of the offence because they are unable to control themselves and hence commit the antisocial act. They may also be suffering from a term “diminished capacity”.

Sometimes experts, depending on which side they are on, such as the prosecution or defence, will disagree on whether an individual suffers from insanity (Sadoff, 2011; Schopp et al., 2010). Problems arise by the fact that a crime has frequently been committed in the past and it is difficult to retrospectively assign whether the individual was sane at the time of the offence.

Those who are found insane are usually sent for treatment. The general public may feel that 30-40% of individuals who claim to be insane are in fact sane. In reality however, less than 1% of claims of insanity occur in the court setting (Resnick & Harris, 2002). Those who are placed in mental hospitals to receive
treatment frequently spend more time incarcerated in such establishments compared with those who enter the prison system. The most common diagnosis of insanity is when an individual is found to be schizophrenic. Sometimes it is found that the perpetrator had not intended to commit the crime and is then labelled ‘guilty with diminished capacity’.

As Alden (2015) points out, both the law and medicine are interpretive practices. Professional psychologists interpret whether they consider an individual to be sane or insane. The law and psychologists and psychiatrists however, have to work together in a court of law. This is especially the case when there is some uncertainty as to whether an individual is sane or insane. This problem is encapsulated in such cases as that of John W. Hinckley Jr. reported by Capps (2013) as an example of someone suffering from a narcissistic personality disorder. When Hinckley attempted to assassinate President Ronald Reagan on March 30, 1981, the verdict was not guilty by reason of insanity. Not everyone was happy with this decision! This uncertainty as to this result was encapsulated by Duke (2013) when he asks: “Can a person commit a crime and be free of guilt or not be responsible?” It has even been proposed by cases such as Hinckley to discontinue the use of the insanity defence.

As pointed out by Elmore (2015) the insanity defence is influenced by public opinion and the media. A most recent study (2015) seeks to establish what current
opinion is in the prevalence of the insanity defence being used. When an action is irrational there is often the suspicion that a mental illness may be behind the “crime”.

As pointed out by Sadoff & Dattilio (2011): “The assessment of lack of criminal responsibility (or insanity) is one of the major functions of the forensic psychiatrist and psychologist “to determine.” They concern themselves with mental illness and the irresistible impulse and diminished capacity of an individual accused of a crime. As pointed out by Slovenko (2007) in an earlier study in the International Handbook on Psychopathic Disorders and the Law, criminal responsibility according to the US Supreme Court requires there to be evidence of “an evil meaning mind with an evil doing hand”. A non-insanity result is likely to err in the case of ‘actus reus’ or the act being of a voluntary nature. This is in contrast to ‘mens rea,’ the act being based on a guilty mind. The use of psychological evidence is based on being able to determine or differentiate that an individual suffers from diminished capacity which can be used as a mitigating factor in plea bargaining or sentencing, or to ask for a new trial.

Another issue where psychiatrist or psychologists are involved is whether an individual is competent to stand trial and understands what is happening in a court of law (Zapf et al., 2009).

The problems associated with making decisions on whether an individual has capacity
The prediction of whether an individual is dangerous and/or insane frequently involves clinical psychiatrists and psychologists (Costanzo & Costanzo, 2013). This is of especial importance when there is a likelihood that an individual already incarcerated for some time may be moved to a less secure environment or even to an open prison or release. A question frequently asked, as pointed out by Kaliski (2012): “Does the insanity defence lead to an abuse of human rights?” The release of an offender from prison who for example has been convicted of murder, rape or other violent offences could be an abuse of human rights for potential victims as well as for the perpetrator. The perpetrator may not be ready now or ever to benefit from release from prison.

While not all prisoners released are likely to pose a danger to others, there have been a minority of tragic cases where offenders do indeed still pose a threat to
the survival of potential victims. It should also not be forgotten that the reason a prisoner is in prison is for retribution and hopefully for rehabilitation. Once an
individual has been found guilty of a crime proven “beyond reasonable doubt,” what must be considered if there is an insanity defence, is that the individual’s
problems or mental defect has been improved so that he/she is capable of being considered for a less secure environment or the possibility of release from prison altogether. One assumes that the prisoner in situations such as this has received effective treatment while incarcerated. Furthermore, it must be considered of great importance that the treatment has been successful and there is less likely to be any risk of future criminal activities.

Legal scholars, legislators, jurors and many others have found the insanity defence to be highly controversial and hence contested in courts of law leading eventually to such a statement as “guilty but mentally ill” (Lurigio & Babchuk, 2013). The insanity defence and the diminished responsibility defence has long been considered a legal term related to what psychologists might determine through their investigations. The concept of insanity has been influenced however, by the law, psychiatry, psychology, penology, as well as legal philosophy (Mason, 2011). Such a statement as “diminished capacity’ has been used in place of insanity when contrasted with criminal responsibility (Packer, 2015). The courts of law need to be satisfied that an individual accused of a crime is fit to plead before a court of law as well as comprehending the reason for the court’s actions. Unfortunately, these actions are perpetrated by the offender frequently, due to
irrational thinking and hence this leading to irrational behaviour (Robinson, 2013).

Matters are made even more complex as pointed out by Scott (2012) when drugs such as amphetamine induces psychosis and is used as a defence for murder.
The question could well be asked: if an individual is intentionally intoxicated with alcohol or drugs and commits a crime, can the term “mental illness” or “insanity” ever be used? Some mentally disordered individuals or their defence relies on insanity or not guilty by reason of insanity. Torry & Billick (2010) considers that such a defence has perplexed legal and mental health professionals for centuries, and has been part of the legal system since the early Greeks.

Another complex issue is the use of medication not taken by schizophrenics. This is an example of lack of criminal responsibility. Non-compliance with the use of medication as a therapy often occurs among the mentally ill leading to a risk of antisocial behaviour including violence and other serious offences. It leads critics of the insanity defence to claiming that the disease is self-induced due to the use of such intoxicating materials as drugs and alcohol etc. (Torry & Weiss, 2012).

From what has been stated there is a considerable complexity in attempting to diagnose mental illness and for the courts to decide on criminal responsibility or insanity. What follows will be an effort made to show how some researchers have sought to consider better ways of diagnosing mental illness and insanity to help the courts make the right decisions.

The diagnosis of insanity or mental illness
A number of assessment techniques have been used to determine the mental state of individuals accused of crimes where it is suspected that whatever offence
has occurred it has been committed, at least in part, due to a mental illness. Among the instruments used has been the Rorschach Test (Acklin, 2008). A scale
was developed to assess sanity or its opposite by Daftary-Kapur et al. (2011). Similarly, a forensic assessment model was researched by Denney (2012) for the purpose of assessing criminal responsibility or diminished capacity. Also to be measured were predictions of dangerousness towards others associated with mental illness, or the possibility of mental illness. Such more objective instruments have been used due to the fact that experts frequently differ in their opinion based on interviewing and assessing of documents as to whether they suspect sanity or diminished capacity to be the cause or associated with a criminal act (Frederick, 2012).

Such approaches have been considered due to the uncertainty as to the reliability of forensic evaluations of legal sanity (Gowensmith et al., 2013). In line with
this view Donahue et al. (2008) developed the Maryland Test for Finding of Legal Insanity (not criminally responsible). This test relies heavily on insanity being determined due to an individual lacking the appreciation of wrongfulness. This in turn being based on cognitive impairment, low intelligence or lack of ability to refrain from illegal behaviour which is considered to be volitional impairment. In this study by Donahue et al. (2008) of individuals placed in a Maryland Hospital, 460 defendants were assessed as being non-criminally responsible (NCR). 44 or 11% were assessed as not criminally responsible due to volitional impairment alone. The volitional impaired group was found to be unable to refrain from illegal conduct due to their psychiatric symptoms.

Since there is a danger of an individual accused of a crime feigning symptoms to avoid prosecution, efforts have been made to determine which symptoms are
valid and which are not in mental disorders. The objective is to differentiate feigned symptoms from genuine symptoms (Kramer & Gagliardi, 2009).

The possibility of an individual committing a criminal act and feigning certain symptoms and hence malingering to avoid criminal punishment was considered by McCarthy-Jones & Resnick (2014). There have been a number of cases where individuals have claimed to be hearing voices telling them to do certain antisocial acts. To verify that this is really the case is not easy. Atypical auditory hallucinations (AVH) have to be assessed carefully to evaluate their veracity. It is likely that better tools may need to be developed to evaluate the mental state and whether to consider an individual responsible for a crime or indeed being insane by having diminished capacity (Packer, 2013). Having had a previous mental illness helps when diagnosing the possibility of a psychotic disorder. Rosli et al. (2011) considers the importance of getting a second opinion when there is an insanity plea or a temporary insanity plea.

Effort has been made to identify insanity via neuro-imaging evidence. Using such techniques it is hoped that a jury would be more likely be convinced by such objective evidence (Schweitzer & Saks, 2011). Unfortunately things are not as yet sufficiently tested to rely on. Unless other procedures coincide with neuro-imaging evidence one must still rely on a number of objective and projective psychological testing to obtain the most valid evidence pointing to sanity or insanity. 

Acklin, M. W. (2008). The Rorschach test and forensic psychological evaluation: Psychosis and the insanity defense. In C. B. Gacono & F. B. Evans (Eds.), The
handbook of forensic Rorschach assessment. (pp. 157-174). New York, NY, US: Routledge/Taylor & Francis Group.

Alden, A. L. (2015). (Dis)articulating morality and myth an ideological history of the insanity defense. US, Proquest Information & Learning, 75.

Brendel, R. W., & Glezer, A. (2010). Forensic psychiatry: Opportunities and future challenges. Introduction. Harvard Review of Psychiatry, 18(6), 315-316.

Capps, D. (2013). John W. Hinckley, Jr.: a case of narcissistic personality disorder. Pastoral Psychology, 62(3), 247-269.

Costanzo, M. L., & Costanzo, M. A. (2013). Teaching clinical (and nonclinical) psychology through applications to the legal system: Violence risk assessment and the insanity defense. Teaching of Psychology, 40(3), 252-256.

Daftary-Kapur, T., & et al. (2011). Measuring knowledge of the insanity defense: Scale construction and validation. Behavioural Sciences & the Law, 29(1), 40-63.

Denney, R. L. (2012). Criminal responsibility and other criminal forensic issues. In G. B. Larrabee (Ed.), Forensic neuropsychology: A scientific approach (2nd ed.) (pp. 473- 500). New York, NY, US: Oxford University Press.

Donahue, A., & et al. (2008). Legal insanity: Assessment of the inability to refrain. Psychiatry, Psychology and Law, 5(3), 58-66.

Duke, D. (2013). Not excused by reason of agency: A discourse analysis of the insanity defense. US, Proquest Information & Learning, 74.

Elmore, S. K. (2015). The insanity defense: Public opinion and the public's tendency to implicate mental illness in highprofile crimes. US, Proquest Information &
Learning, 75.

Frederick, R. I. (2012). Insanity defense, diminished capacity, mitigation. In D. Faust (Ed.), Coping with psychiatric and psychological testimony: Based on the
original work by Jay Ziskin (6th ed). (pp. 535-541). New York, NY, US: Oxford University Press.

Gowensmith, W. N., & et al. (2013). How reliable are forensic evaluations of legal sanity? Law and Human Behavior, 37(2), 98-106.

Kaliski, S. (2012). Does the insanity defense lead to an abuse of human rights? African Journal of Psychiatry, 15(2), 83-87.

Kramer, G. M., & Gagliardi, G. J. (2009). Forensic evaluation of insanity: Assessing valid symptom report in defendants with major metal disorder. Journal of Forensic Psychology Practice, 9(1), 92-102.

Lurigio, A. J., & Babchuk, L. (2013). Insanity defense. In J. B. Helfgott (Ed.), Criminal psychology, vol : Theory and research, vol 2: Typologies, mental disorders, and profiles, vol 3: Implications for forensic assessment, policing and the courts, vol 4: Implications for juvenile justice, corrections, and reentry. (pp. 307-331). Santa Barbara, CA, US: Praeger/ABC-CLIO.

Mason, T. (2011). The insanity defence and diminished responsibility. In P. Barker (Ed.), Mental health ethics: The human context. (pp. 317-324). New York, NY, US: Routledge/Taylor & Francis Group.

McCarthy-Jones, S., & Resnick, P. J. (2014). Listening to voices: The use of phenomenology to differentiate malingered from genuine auditory verbal hallucinations. International Journal of Law and Psychology, 37(2), 183-189.

Packer, I. K. (2013). Evaluation of criminal responsibility. In R. Roesch & P. A. Zapf (Eds.), Forensic assessments in criminal and civil law: A handbook for lawyers. (pp. 32-46). New York, NY, US: Oxford University Press.

Packer, I. K. (2015). Legal insanity and mens rea defenses. In B. L. Cutler & P. A. Zapf (Eds.), APA handbook of forensic psychology, vol 1: Individual and situational influences in criminal and civil contexts. (pp. 87-114). Washington, DC, US: American Psychological Association.

Resnick, P. H. J., & Harris, M. R. (2002). Retrospective assessment of malingering in insanity defense cases. In R. I. Simon & D. W. Schuman (Eds.), Retrospective assessment of mental states in litigation: Predicting the past. (pp. 101-134). Washington, DC: American Psychiatric Publishing.

Robinson, D. N. (2013). The insanity defense as a history of mental disorder. In K. W. M. Fulford, M. Davies, R. G. T. Gipps & et al. (Eds.), The Oxford handbook of philosophy and psychiatry. (pp. 18-36). New York, NY, US: Oxford University Press.

Roesch, R., Zapf, P. A., & Hart, S. D. (2010). Forensic psychology and law. Hoboken: NJ: John Wiley & Sons. Rosli, N. H. M., & et al. (2011). Second opinion on
insanity plea in murder and attempted suicide case: A case report. ASEAN Journal of Psychiatry, 12(1), 117-121.

Sadoff, R. L. (2011). Expert psychiatric testimony. In R. L. Sadoff, J. A. Baird, S. M. Bertoglia, E. Valenti & D. L. Vanderpool (Eds.), Ethical issues in forensic psychiatry: Minimizing harm. (pp. 97-110). Hoboken: NJ: Wiley-Blackwell.

Sadoff, R. L., & Dattilio, F. M. (2011). Criminal responsibility. In R. L. Sadoff, F. M. Dattilio, E. Y. Drogin & T. G. Gutheil (Eds.), Handbook of forensic assessment:
Psychological and psychiatric perspectives. (pp. 121-144). Hoboken: NJ: John Wiley & Sons Inc.

Schopp, R., Wiener, R. L., Bornstein, B. H., & Willborn, S. L. (2010). Mental disorder and criminal law; responsibility, punishment and competence. New York: Springer Publishing.

Schweitzer, N. J., & Saks, M. J. (2011). Neuroimage evidence and the insanity defense. Behavioral Sciences & the Law, 29(4), 592-607.

Scott, R. (2012). Amphetamine-induced psychosis and defences to murder. Psychiatry, Psychology and Law, 19(5), 615-645.

Slovenko, R. (2007). Noninsanity psychological evidence. In A. R. Felthous & H. SaB (Eds.), International handbook on psychopathic disorders and the law (Vol 2). (pp. 303-315). New York, NY, US: John Wiley & Sons Ltd.

Torry, Z. D., & Billick, S. B. (2010). Overlapping universe: Understanding legal insanity and psychosis. Psychiatric Quarterly, 81(3), 253-262.

Torry, Z. D., & Weiss, K. J. (2012). Medication noncompliance and criminal responsibility: Is the insanity defense legitimate? Journal of Psychiatry & Law, 40(2), 219-242.

Zapf, P. A., & et al. (2009). Insanity in the courtroom: Issues of criminal responsibility and competency to stand trial. In D. A. Kraus & J. D. Lieberman (Eds.), Psychological expertise in court: Psychology in the courtroom, Vol 2. Burlington, VT, US: Ashgate Publishing Co.

Ludwig F. Lowenstein Ph.D.
Southern England Psychological Services,
Allington Manor, Allington Lane,
Fair Oak, Eastleigh, Hampshire, SO50 7DE,
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

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