IV. Insanity Defense Or Nothing?

In the early part of the Introduction (Section I of this study) the first alternative discussed involves some jurisdictions that consider that a traditional insanity defense (Glossary Item II B) should function as a firm framework. Thus, they take the position that testimony or other mental disability evidence focusing directly on mens rea (Glossary Item II C) outside that framework should be precluded. Some jurisdictions seem to place too much emphasis on "insanity defense or nothing" type of language. This tends to create constitutional problems.

There is another approach which comes close to achieving the same result as the first alternative. It is the second alternative as discussed early in Section I, the Introduction to this article. This approach contemplates that a traditional insanity defense will be in place as the basic framework. Nevertheless, it allows certain mental disability, not necessarily fitting the requirements of the traditional insanity defense, to be admitted into evidence. However, it requires that such mental disability must be severe enough to demonstrate complete lack of mental capacity for the mens rea involved in the offense. If it does not meet that requirement such mental disability evidence should be kept out by using evidentiary, substantive law or policy reasoning (or a combination thereof). This involves the strict mens rea approach described in Section II E of the Glossary.

It is probably true that even jurisdictions now using "insanity defense or nothing" language have been able to avoid successful constitutional attacks because they have been able to say that evidentiary, substantive law and policy reasoning was used in arriving at their law and order position described by the "insanity defense or nothing" type language. The suggestion here, however, is that such language should not be used, thus avoiding constitutional problems.

As stated in the Introduction to this article, in a Pepperdine Law Review article published in 1989, I focused on whether or not it was constitutional to have a traditional insanity defense as the firmly limiting framework. In that article I considered the constitutionality of completely precluding evidence of mental disability on mens rea outside the traditional insanity defense. I concluded that under appropriate circumstances this could be done, using the evidentiary, substantive law and policy reasoning mentioned above. In a 1993 article published in the Western State University Law Review I again reviewed that question. I changed my position to some extent by saying that it would be safer to avoid insanity defense or nothing language and use the approach set forth in the second paragraph in this section (i.e. the second alternative as discussed in the Introduction herein, involving Section II E of the Glossary).²⁹ The issues are complicated, and they cannot be adequately covered in this summary type article. Thus, it is recommended that readers study them in the articles cited in note 29 herein.

Without attempting to go into all the details here, in general terms some of the concepts and issues in the constitutional question are outlined below. (References are to page numbers in my 1989 and 1993 articles.)

A. Avoid use of the "all or nothing" type language to the effect that if the mental disability does not meet insanity defense requirements it can be excluded for that reason (1989 at 602; 1993 at 466, 487-88).

B. Instead, focus on (1) evidentiary reasoning (1989 at 584-92; 1993 at 467-83); (2) substantive law reasoning (1989 at 576, 578, 580-82; 1993 at 466-67); (3) policy considerations (1989 at 582-84; 1993 at 484-86); or (4) it may be prudent to cover all bases with a combination of evidentiary, substantive law and policy reasoning (1993 at 486-87).

With reference to the constitutional issue, the foregoing points A and B are very significant. The reason for this is that even the defense oriented approach in American Law Institute Section 4.02(1), described in the foregoing Section III of this article, requires that the mental disease or defect be relevant.³⁰ Thus, even without the substantive law reasoning in B(2) above or the policy reasoning in B (3) (which in any event should be argued as part of the package) jurisdictions can focus heavily on B(1), evidentiary reasoning, and may be able to avoid constitutional problems. This particularly involves lack of reliability of mental disability evidence. It also involves the fact that to be relevant the evidence must be material and probative; and it can successfully be argued that minor mental disabilities are not probative and thus not relevant on mens rea (i.e. if the strict mens rea approach is established in the jurisdiction).

This is because the strict mens rea approach requires severe mental disability demonstrating complete lack of mental capacity. (Again, however, added to this should be substantive law and policy reasoning, where applicable.) This seems to be a very technical approach, but it is the way to avoid constitutional problems. The details are set forth in my 1989 and 1993 articles, as indicated above.

Having in mind the discussion in the foregoing paragraphs, the same arguments can be made with reference to American Bar Association Criminal Justice Mental Health Standard 7-6.2 which, as previously noted, is the same concept as A.L.I. 4.02(1).³¹

In this connection it should be noted that the Commentary of the American Bar Association Committee refers to "logical relevance;" "competent relevant evidence;" "competent clinical evidence;" and "normal requirements for expert opinion. "³² Using the same points noted above and in my 1989 and 1993 articles, it can be argued that the position recommended here is consistent with the relevance principle of American Bar Association Standard 7-6.2. On the other hand it appears that the American Bar Association Committee comments have attempted to use the term "logical" relevance to mean something special which would authorize the avoidance of the usual meaning of relevance under the rules of evidence (resulting in a more defense oriented approach). Jurisdictions desiring to reduce the admissibility of mental disability evidence should adhere to the usual rules of evidence, as outlined in my 1989 and 1993 articles. (Again, underlying all this is that, as noted above, if the strict mens rea approach is adopted requiring severe mental disability, then minor mental disabilities would not be probative, and hence not relevant.)

At page 43 in the 1998 Supplement by Myron Moskovitz and June Grall to Professor Paul Robinson’s comprehensive treatise entitled Criminal Law Defenses there is a statement as follows: "Exclusion of evidence that is either unreliable or is not relevant to the mental state or states that are elements of the offense charged does not raise constitutional issues." In a nutshell, that is the bottom line that can be argued with reference to the constitutionality issue (combined with other evidentiary concepts plus appropriate substantive law, and policy arguments, as previously mentioned).

One point to consider is that, as stated by Professor Arenella, in many cases the strict mens rea approach would add little to the traditional insanity defense because often the type of severe mental disability involved would also establish lack of responsibility under the insanity defense.³³ Nevertheless, in his 1977 article, in effect, Professor Arenella recommends the strict mens rea approach (i.e. severe mental disability causing full lack of mental capacity to form mens rea,, Glossary Item II E).³⁴ A legitimate question to ask is as follows: What does this strict mens rea approach really add to the picture? It is still a "law and order" position. Nevertheless, it does not focus on the lack of control or inability to determine right from wrong of traditional insanity defenses. Instead, the focus is on the severity of the mental disability and its direct effect on mens rea. In that technical sense it is not the same as the insanity defense. In any event, as discussed in the foregoing paragraphs, the combination of a traditional insanity defense plus the strict mens rea approach is a way of avoiding constitutional problems.

A major problem with all of this involves the question: What aresevere mental disabilities?³⁵ This problem of what constitutes a severe mental disability (and the almost inevitable disagreement of experts for the prosecution versus the defense side on such an issue) has been ongoing for many years, not only with reference to diminished capacity but also regarding traditional insanity defenses. This has sometimes involved the area of what credence should be given by courts to the various editions of the Diagnostic And Statistical Manual Of Mental Disorders, published by the American Psychiatric Association. With the insanity defenses, however, there are functional requirements involving knowledge and control which are valuable to juries because they set forth a legal framework which, to some extent, helps to indicate what is a serious or severe mental disability (Glossary Item II B).

With all the problems, which have merely been touched upon in the foregoing comments but are more fully developed in my 1989 and 1993 articles,³⁶it is obviously very difficult to resolve the severity issue involved in the strict mens rea approach (Glossary Item II E). Nevertheless, if jurisdictions try hard enough they may be able to move in the direction of at least requiring more severe mental disabilities than are now being admitted in evidence in a number of jurisdictions which, in effect, are the equivalent of diminished capacity mens rea (i.e. Glossary Item II F).

Of course, jurisdictions could also consider the tightest approach, which would draw a flat line at the insanity defense (i.e. in effect the "insanity defense or nothing" position) using appropriate evidentiary, substantive law and policy reasoning to justify that general position, rather than operating on a case by case basis.³⁷ Nevertheless it would seem to be safer to use the approach involving a case by case basis, using strict mens rea demonstrating complete lack of mental capacity (item II E of the Glossary), combined with evidentiary, substantive law and policy reasoning.

In any event it would be helpful to the conservative law and order approach if the American Law Institute and American Bar Association (in addition to the American Medical and American Psychiatric Associations as discussed later) would move towards strict mens rea (Glossary Item II E) and away from diminished capacity mens rea (Glossary item II F). (Compare the discussions in Sections III, IX and X of this article.)

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Notes

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²⁹ See generally Huckabee 1989, supra note 1; Huckabee 1993, supra note 1 at 465-504.

³⁰ See supra note 20 and accompanying text. See also references to "relevant" in the A.L.I. Comments in MODEL PENAL CODE, supra note 20 at 218-19.

³¹ See supra notes 23-28 and accompanying text.

³² AMERICAN BAR ASSOCIATION, supra note 1 at 7-313, 7-314, 7-315. Compare ROBINSON 1984, supra note 1 at 277-78, 283, and MOSKOVITZ-GRALL, Supp. 1998 at 43-45.

³³ Cf. Arenella 1977, supra note 14 at 830-31, 834-35.

³⁴ Id. at 863.

³⁵ Cf. id. at 834-36, 839, 845-46, 858.

³⁶ See supra note 29 and accompanying text.

³⁷ See generally Huckabee 1993, supra note 1 at 493-502.