XI. Conclusion

The conclusions to be drawn from all of this can best be stated by referring back to the "Recommendations for California" and the "Additional Considerations" regarding the problems in that state as set forth at the end of Section V of this study. Variations of those recommendations and additional considerations have also been included with reference to the federal system and other jurisdictions and organizations, discussed at the ends of Sections VI through X. These conclusions and additional considerations are summarized below.

Conclusions

(1) Establish a conservative traditional insanity defense such as M’Naghten.

(2) Establish the strict mens rea concept for admissibility of mental disability evidence on mens rea outside the traditional insanity defense. This would involve only severe mental disability which demonstrates that the defendant completely lacked the mental capacity for the mens rea involved in the offense.

(3) Avoid constitutional problems by not using "insanity defense or nothing" language; but instead use evidentiary, policy and substantive law reasoning in establishing and maintaining the strict mens rea approach in (2) above. (See generally Section IV in this study.)

(4) Legislative history with reference to statutes (and courts in their opinions) should be specific in stating that A.L.I. Model Penal Code Section 4.02(1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2 (or variations thereof) are not the strict mens rea concept involving severe mental disability which fully negates mental capacity (involved in conclusion (2) above).

(5) Hearings outside the presence of the jury should be held to determine whether the mental disability is severe enough to meet the requirements of (2) above. If the mental disability is not severe enough, the testimony or other evidence should not be presented to the jury.

(6) The American Bar Association and American Law Institute should initiate action to move policies and/or standards towards the strict mens rea approach in (2) above. In turn, the American Medical Association and American Psychiatric Association should move their policies and/or standards in the same direction. Following the lead of these four organizations, jurisdictions (including those discussed in this article and others) should take action to move towards strict mens rea as described in (2) above. (See generally Sections III, IX and X in this study.)

Additional Considerations

(a) None of this will be easy in view of the difficulty of determining from opinions and testimony of mental health professionals whether a mental disability is severe enough to cause complete lack of capacity for mens rea. There are bound to be major disagreements in trial situations because of different schools of thought of mental health professionals; and different agendas (prosecution, defense or treatment oriented); all of which can become involved in the adversary system in criminal prosecutions.

(b) Because of the major influence of defense attorneys, treatment oriented mental health professionals and others with similar agendas I am not optimistic that this study will have much effect in solving the problems. Nevertheless, my purpose is to set forth a framework for use by jurisdictions, organizations and individuals having a conservative "law and order" approach similar to mine. Perhaps, to some extent, this study can help improve criminal justice systems by reducing the effect of minor mental disorders in criminal prosecutions. Thus, this could help solve some of the problems mentioned by Professors Wilson, Dershowitz and Ms. Weintraub in Section I (the Introduction to this article).

Return Home

Download this section in Microsoft Word