III. American Law Institute Model Penal Code - Section 4.02(1)

Section 4.02(1) of the American Law Institute's Model Penal Code is as follows: "(1) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the offense." This was included in Tentative Draft Number 4 of the Model Penal Code in 1955. It was adopted at the 1962 annual meeting of the American Law Institute and is still the A.L.I. position. It is important to note that this Section is different than Section 4.01(1) of the Model Penal Code, which is the ALI insanity test (i.e. the third defense in the second paragraph in Item II B of the Glossary in this study).²⁰

American Law Institute Section 4.02(1) contemplates admissibility of mental disability evidence even though it is less serious than required for traditional insanity defenses (Glossary Item II B above).²¹  Compare Rhodes v. United States, an early federal case discussing Section 4.02(1).²²

An important point for this discussion is that throughout earlier years, and up to and including the present date, American Law Institute Section 4.02(1) has been considered a defense oriented concept. Perhaps the best way to demonstrate the defense oriented nature of Section 4.02(1) is to compare it with the more recently adopted American Bar Association Criminal Justice Mental Health Standard 7-6.2. That Standard is as follows: "Evidence, including expert testimony, concerning the defendant's mental condition at the time of the alleged offense which tends to show the defendant did or did not have the mental state required for the offense charged should be admissible."²³   This will also be discussed in Section X of this study, but a preliminary discussion of it here will be helpful.

Law Professors Ralph Reisner and Christopher Slobogin have stated that American Law Institute Section 4.02(1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2 are identical rules.²⁴  (Professor Slobogin was the Reporter for the American Bar Association which developed Standard 7-6.2 and others.)²⁵  Furthermore, the Commentary by the American Bar Association Committee makes clear that the two concepts are the same.²⁶

Also, it is important to note that American Bar Association Standard 7-6.2 is arguably diminished capacity mens rea rather than strict mens rea.²⁷  For example, there is no "mental disease or defect" restriction on the relevant condition of the mind (thus indicating that minor mental disabilities, would be admissible); and a serious mental disability does not need to be involved such as required under a traditional insanity defense.²⁸  In any event, the important point here is that over the years A.L.I. Section 4.02(1) has been a defense oriented concept for reaching outside the insanity defense framework with mental disability testimony and evidence not meeting traditional insanity defense requirements; and now with Standard 7-6.2 the American Bar Association has given added impetus to that defense oriented approach.

From the above discussion of A.L.I. Section 4.02(1) and American Bar Association Standard 7-6.2, it is clear that the gates have been left open by the American Law Institute and the American Bar Association for jurisdictions (in statutes and court decisions) to allow in evidence directly on mens rea mental disorders less serious than required for traditional insanity defenses. There is nothing in those concepts, or in related A.L.I. and A.B.A. commentaries saying that the mental disability needs to be severe. Also, there are no functional requirements involving knowledge or control such as in traditional insanity defenses (as set forth in Section II B of the foregoing Glossary). Thus, to the extent that policymakers, legislatures and courts look to the American Law Institute and American Bar Association for guidance there appears to be nothing suggested that would discourage them from allowing minor mental disorders to be admitted directly on mens rea (i.e. as long as they are relevant). In effect, A.L.I. Section 4.02(1) and A.B.A. Standard 7-6.2 have removed the legal framework provided by traditional insanity defenses. This has the effect of allowing psychiatrists and psychologists to confuse the issues and dominate the proceedings without adequate guidance for the jury regarding legal, social and moral concepts which should be provided by the law. (Compare the discussion of traditional insanity defenses in Section II B of the Glossary which do provide such guidance.)

Changing the emphasis to a severe mental disability requirement would appear to reduce the use of inadequately controlled mental disability testimony and evidence on mens rea. However, changing language in statutes or court opinions to "severe" is not all that is involved. There are other major problems, as discussed in Section IV below.

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On To Section IV: Insanity Defense Or Nothing?

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Notes

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²⁰ AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES (Official Draft and Revised Comments) 216-17 (1985) (Adopted by A.L.I. May 24, 1962) [hereinafter MODEL PENAL CODE].

²¹ Id. at 218-19 (including notes 3 and 5). Compare AMERICAN BAR ASSOCIATION supra note 1 at 7-312-313; ROBINSON 1984, supra note 1 at 273 note 3, 276 note 8, 284 note 40 and accompanying text, and MOSKOVITZ-GRALL Supp.1998 at 37- 43.

²² Rhodes v. United States, 282 F.2d 59, 60-61 (1960), cert. den. 364 U.S. 912 (1960).

²³ AMERICAN BAR ASSOCIATION supra note 1 at 7-311.

²⁴ RALPH REISNER AND CHRISTOPHER SLOBOGIN, LAW AND THE MENTAL HEALTH SYSTEM, CIVIL AND CRIMINAL ASPECTS at 535 ( Second Edition 1990).

²⁵ AMERICAN BAR ASSOCIATION supra note 1 at 7-286.

²⁶ Id. at 7-312-313. A.L.I. Model Penal Code Sec. 4.01(1) is erroneously cited in footnote 3 of the Commentary, instead of Sec. 4.02(1). However, the language used in that footnote (plus other comments in the Commentary) clearly demonstrate that the reference is to Sec. 4.02(1).

²⁷ Huckabee 1993, supra note 1 at 476-77, 502. See also Huckabee 1987, supra note 1 at 15-18.

²⁸ AMERICAN BAR ASSOCIATION, supra note 1 at 7- 312- 7- 315. Cf. Huckabee 1993, supra note 1 at 477.