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TABLE OF CONTENTS |
I. IntroductionThe language "Dodging The Insanity Defense" in the title of this article is not meant to be critical of defense attorneys who use diminished capacity as a defense in criminal cases. Certainly it is their duty to present all appropriate defenses within the framework of the law and legal ethics. Instead, this study is aimed at jurisdictions and entities such as those listed in Sections III, and V through X in the foregoing Table of Contents. They have adopted positions in legislation and court decisions (or in a model code, standards or policy statements by the entities in Sections III, IX and X) which can result in admissibility of mental disability evidence not meeting the seriousness requirements of traditional insanity defenses.
Insufficient action has been taken to resolve the problems. This is in spite of the fact that in the wake of the Hinckley case (involving the attempted assassination of President Reagan) there was a hue and cry about the need to eliminate or tighten insanity defenses. The apparent purpose of this was to reduce the influence of mental disability evidence and testimony of mental health experts in criminal prosecutions. Presumably, this would also include reducing such testimony and evidence directly on mens rea outside the framework of traditional insanity defenses. The jurisdictions discussed in this article are examples illustrating that variations of the problems still exist. Other jurisdictions may find this study helpful in evaluating the issues.
This article considers various alternatives. The first is whether or not a traditional insanity defense should be considered as a firm framework, with a requirement that all mental disability evidence on mens rea outside that framework should be precluded. A number of jurisdictions have taken variations of that position. As will be discussed more in detail later (in Section IV herein) some seem to place too much emphasis on "insanity defense or nothing" type language. This tends to create constitutional problems.1
A second alternative comes close to achieving the same result as the first alternative, mentioned above. If a jurisdiction has a traditional insanity defense it may still allow in evidence on mens rea certain mental disability not necessarily fitting the framework of that defense. However, this alternative contemplates that such mental disability must be severe enough to demonstrate complete lack of capacity for the mens rea involved in the offense. If it does not meet that requirement this approach says it should be kept out by using evidentiary, substantive law or policy reasoning (or a combination thereof). This involves the Strict Mens Rea concept described in Section II E of the Glossary in this article.
Evidentiary, substantive law and policy reasoning is also undoubtedly an underlying factor in protecting against constitutional attacks even in jurisdictions completely precluding mental disability testimony and evidence outside the traditional insanity defense (i.e. the first alternative mentioned above). In connection with taking that broad position, presumably the jurisdictions have applied such reasoning. Nevertheless, it would be better if they would downgrade any "insanity defense or nothing" type rhetoric in court opinions, briefs and other material in support of that position.2
A third alternative involves the approach in various jurisdictions (and in certain circumstances) which allows even minor mental disorders to be admitted directly on mens rea (outside the traditional insanity defense framework).3 This includes allowing such minor disorders in evidence whenever they are relevant to prove any subjectively defined mental state; or sometimes only in more limited situations such as, for example, in homicide cases to reduce degrees of crime; or to focus only on specific intent, knowledge etc.4
For those who are "law and order" oriented the simple answer would be the first alternative mentioned above, firmly keeping all mental disability evidence on mens rea within the traditional insanity defense framework. Those with law and order orientation might also be satisfied with the above mentioned second alternative. However, instead of having a flat rule that draws the line at the insanity defense in all cases (as in the first alternative), the second alternative would require admissibility decisions by courts on a case by case basis. This is cumbersome and difficult. Defense attorneys and those who are treatment oriented would probably prefer the third alternative, which would allow even minor mental disorders to come into evidence directly on mens rea (outside the traditional insanity defense framework).
The constitutional issues involved in all of this are difficult to handle. As developed in more detail in Section IV of this study, in a 1989 Pepperdine Law Review article (Volume 16 at 573-611) I attempted to support the "insanity defense or nothing" position in the first alternative, discussed above. I said that it could be supported if appropriately backed up by evidentiary, substantive law and policy reasoning. In an article in 1993 in the Western State University Law Review (Volume 20 at 435, 465-504) I continued in my position that the first alternative might be handled in a constitutional manner, but suggested that it might be safer for jurisdictions to consider the above mentioned second alternative, which would require decisions by courts on a case by case basis (Volume 20, Western State University Law Review at 496).
In the subtitle of a recent book Professor James Q. Wilson questions whether the "abuse excuse" threatens the legal system.5 In criminal prosecutions diminished capacity involving the effect of mental disorders not serious enough to meet insanity tests does not specifically fit into the "abuse" concept. Nevertheless, elements of diminished capacity can be argued in some cases in support of the abuse defense. In fact, at various points in his book Professor Wilson refers to mental disorder issues as being part of the problem. In his book entitled The Abuse Excuse Professor Alan M. Dershowitz uses a subtitle: And Other Cop-outs, Sob Stories, and Evasions of Responsibility.6 Clearly variations of diminished capacity would fit within that subtitle. Thus, in various contexts, Professor Dershowitz refers to mental disorder issues in his book.
Professors Wilson and Dershowitz have a broader approach than my focus on diminished capacity and related issues in this article. Nevertheless, it can be seen from their books that the effect of minor mental disorders is an underlying factor in numerous areas they have considered. This includes a variety of new "syndromes" which have proliferated in recent years as defenses in criminal prosecutions. An indication of the scope of this problem can be seen from the large number of items in the literature on this subject. A lengthy list is included in a book by Professors D. Cherwyn Picquet and Reba A. Best, of the University of Tennessee College of Law. It is entitled The Insanity Defense: A Bibliographic Research Guide (Second Edition 1994). For example, it includes listings of literature on this issue regarding post traumatic stress disorder at pages 168-171; premenstrual syndrome at pages 171-173; and XYY chromosome syndrome at pages 248-249. At pages 206-213 of their book, Professors Picquet and Best also set forth a lengthy list of items in the literature regarding diminished capacity and diminished responsibility. These concepts are a major focus in this study. See also Section 12.01 at pages 12-3 through 12-6 of a book entitled Psychiatric And Psychological Evidence (Second Edition, December 1995) by Professor Daniel W. Shuman of the School of Law, Southern Methodist University. He discusses (and cites literature regarding) the potential use of diminished capacity (as well as the insanity defense) with reference to premenstrual syndrome, post traumatic stress disorder, battered woman syndrome and postpartum psychosis.7
Because of this movement in recent years towards more use of variations of the so-called diminished capacity concept (under varying labels), there is emphasis in this study on evaluating the potential for moving things back as close as possible to the traditional insanity defense framework. In my judgment this can be accomplished within the context of the foregoing discussion in this Introduction, which will be developed more in detail throughout this study.
A point which should be emphasized is that it does not do much good for reformers to make sweeping comments about the need for improvements in these areas by the various criminal justice systems, unless jurisdictions and entities (such as those in Sections III and V through X in this study) really try to solve the problems. In view of the strength of the defense bar and treatment oriented members of the medical and mental health professions, I am not too optimistic that there will be movement away from the present system in many jurisdictions involving admissibility of relatively minor mental disorders on mens rea. Nevertheless, the attempt here is to add something to the dialogue.
An example of the problem is discussed by Lisa Weintraub in the Summer 1997 issue of The Journal Of Psychiatry And Law. Her article is entitled Inner-City Post-Traumatic Stress Disorder. It discusses the fact that in the fourth edition of the American Psychiatric Association’s Diagnostic And Statistical Manual Of Mental Disorders there is a new definition of post-traumatic stress disorder. (PTSD was first used in the criminal context as a defense of Vietnam veterans accused of crimes, and is related to their combat experiences.) Ms. Weintraub’s article examines expansion of that defense, and the extent to which inner-city defendants in criminal cases meet the criteria of the new definition of PTSD (including having to face urban violence). She points out how defense attorneys and the legal system have used it in connection with insanity defenses in criminal cases. As examples, she comments on some cases similar to those mentioned in the books by Professor Dershowitz and Professor Wilson, previously referred to herein. They include the black rage defense, urban psychosis, and "rotten social background" excuses. An additional consideration, discussed herein, is that also implicit in this trend is that PTSD will undoubtedly be more often used in mens rea model-type defenses outside the framework of traditional insanity defenses. Ms. Weintraub says that the legal system should not encourage PTSD defenses for such inner-city residents because they foster negative stereotypes of racial minorities; they perpetuate the cycle of violence in cities; they are an insult to the many inner-city minorities who grow up around violence and never commit crimes; and they could result in dangerous criminals being released. Consistent with some of the major points stressed herein, she indicates that severe mental disease requirements in insanity defenses could help reduce use of such defenses. I fully agree with that, and stress herein that any evidence of mental disability on mens rea outside the traditional insanity defense framework should also be severe. The question to consider is whether or not any level of PTSD can meet that requirement.8
In the Notes I emphasize citations to my own book and articles. Readers who want to go into more depth (or desire more authorities) regarding the points being made may refer to additional references cited in my writings, or in the other references cited herein.
Incidentally, it will be noticed that I have not followed the exact citation rules as set forth in the "The Bluebook," compiled by the editors of various law reviews and journals, and published and distributed by the Harvard Law Review Association. For example, at times I set forth citations to supporting authorities in the text of this article that in ordinary law review or law journal articles would be in footnotes. Also, I have avoided lengthy textual material in footnotes. Nevertheless, lawyers, law students and others familiar with "The Bluebook" will find that citations are generally consistent with that publication (although not always in the exact format recommended therein). In view of the complexity and length of this project I have focused my efforts on substantive issues rather than taking the time to seek "Bluebook" perfection in the citations. Nevertheless, I have attempted to be accurate in the titles of publications, where published, dates, page and section numbers etc. Perhaps all of this is my way of attempting to be more comfortable in moving things along (on my own and without editors) in this new "web site" method of publishing a legal article. Hopefully this approach will be acceptable to readers. Perhaps they can make suggestions for improvement for me to consider when I update this web site.
Whether or not there is agreement with all of my positions in this study, the effort here is based on the assumption that the approaches I am using will at least be considered viable as a basis for discussion of the issues. Focusing on the exact definitions and explanations in the Glossary is particularly important. This is because a major problem regarding this subject involves the variety of ambiguous and inconsistent labels for "diminished capacity" and its variations in cases, statutes, literature, standards and policy statements. There might be disagreement with the choice of labels used here, but the purpose of the Glossary is to spell out exact meanings. Thus, participants in discussions will not get lost by having different understandings of the meaning of the particular concept under consideration.
Sections I through IV of this study present the general framework for consideration of the concepts and issues. With reference to the jurisdictions and entities in Sections V through X, that framework will be revisited and applied in varying situations.
Because the attempt here is to apply general principles to problems existing in all states and the federal system, of necessity I am using a "broad brush." My effort is to focus on examples which illustrate the general concepts. It is my hope that knowledgeable participants in (and students of) the criminal justice system will understand the general framework of what I am discussing. Perhaps they will then be able to use the concepts discussed here in any attempts to tighten the system in the jurisdiction in which they are interested. Obviously this will involve myriad local issues and concepts, depending on statutes, case law and rules existing in the particular jurisdiction.
This subject is controversial. There are strong feelings by (1) those who are prosecution or (as I like to say) "law and order" oriented versus (2) those with defense or treatment orientation. The attempt here is to present a framework for tightening criminal justice systems and pointing out how they can move in the law and order direction. There are recommendations throughout which may not be attainable in some jurisdictions because of strong feelings by those with defense or treatment oriented goals. Nevertheless, perhaps this study will be useful in suggesting ways to at least move to some extent closer to law and order goals, even though perhaps not as far as suggested in my recommendations.
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Notes
1 Chestnut v. State, 538 So.2d 820 (Fla. 1989); Harlow M. Huckabee, Avoiding The Insanity Defense Strait Jacket: The Mens Rea Route, 15 Pepperdine Law Review 1, 28-31 (1987) [hereinafter Huckabee 1987]; Harlow M. Huckabee, Evidence Of Mental Disorder On Mens Rea: Constitutionality Of Drawing The Line At The Insanity Defense, 16 Pepperdine Law Review 573, 574-75, including note 12 (1989) [hereinafter Huckabee 1989]; Harlow M. Huckabee, Mental Disability: Evidence On Mens Rea Versus The Insanity Defenses, 20 Western State University Law Review 435, 450-52 (1993) [hereinafter Huckabee 1993]. See also AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE (Second Edition 1986) Chapter 7, CRIMINAL JUSTICE MENTAL HEALTH STANDARDS at 7-313 (continuation of note 2) [hereinafter AMERICAN BAR ASSOCIATION]; PAUL H. ROBINSON, CRIMINAL LAW DEFENSES at Sec. 64(a) note 6 (1984, including MYRON MOSKOVITZ and JANE GRALL Supp.1998) [hereinafter ROBINSON 1984, and MOSKOVITZ-GRALL Supp. 1998]. Compare Harlow M. Huckabee, Diminished Capacity Dilemma In The Federal System 1991 WL 330765 (published exclusively in WESTLAW) [hereinafter Huckabee 1991].
2 See infra Section II E (Strict Mens Rea) in the Glossary Section of this article. See also Huckabee 1987, supra note 1 at 28-31; Huckabee 1989, supra note 1 at 574-75, including note 12; and Huckabee 1993, supra note 1 at 450-52. Compare comments in Section IV of this article.
3 See infra Section II F (Diminished Capacity Mens Rea) in the Glossary Section of this article
4 AMERICAN BAR ASSOCIATION supra note 1 at 7-312 - 7-313, note 2; ROBINSON 1984, supra note 1 at 272-84, and MOSKOVITZ-GRALL Supp. 1998 at 37-46.
5 JAMES Q. WILSON, MORAL JUDGMENT: DOES THE ABUSE EXCUSE THREATEN OUR LEGAL SYSTEM? (1997) [hereinafter WILSON 1997].
6 ALAN DERSHOWITZ, THE ABUSE EXCUSE: AND OTHER COP-OUTS, SOB STORIES, AND EVASIONS OF RESPONSIBILITY (1994) [hereinafter DERSHOWITZ 1994].
7 D. CHERYN PICQUET AND REBA A. BEST, THE INSANITY DEFENSE: A BIBLIOGRAPHIC RESEARCH GUIDE (Second Edition 1994) [hereinafter Picquet and Best 1994]; DANIEL W. SHUMAN, PSYCHIATRIC AND PSYCHOLOGICAL EVIDENCE Section 12.01 at pages 12-3 through 12-6 (Second Edition, December 1995) [hereinafter SHUMAN 1995]. Compare Huckabee 1993, supra note 1 at 452; John Q. La Fond and Mary L. Durham, Cognitive Dissonance: Have Insanity Defense And Civil Commitment Reforms Made A Difference?, 39 Villanova Law Review 71, 78-79 (1994) [hereinafter La Fond and Durham 1994].
8 Lisa Weintraub, Inner-city post traumatic stress disorder, 25 The Journal Of Psychiatry And Law 249-286 (Summer 1997) [hereinafter Weintraub 1997]. Cf. infra Section II E (Strict Mens Rea) in the Glossary Section of this article.