VI. Federal

Relevant to this discussion, there are two major phases of developments in the federal system. The first involves a proposal to abolish the traditional insanity defense and replace it with a so-called mens rea insanity defense. This was included in presentations to Congress by the United States Department of Justice from 1973 until it was abandoned in 1983 in favor of a traditional insanity defense. It is of interest that, although not used in the federal system, the approach has been adopted in Idaho, Montana and Utah.¹⁰⁵ The second phase involves a traditional insanity defense for the federal system which was enacted in the Insanity Defense Reform Act of 1984. It should be noted, however, that an arguably "diminished capacity mens rea" type of concept (outside the traditional insanity defense framework) was left in place at that time, and still remains in the federal system.¹⁰⁶ These are subjects which will be considered in this Section (with a more specific discussion of developments in Idaho, Montana and Utah in Section VIII of this article).

Phase One

As noted above, the first phase involves the mens rea insanity defense. Although not ultimately adopted in the federal system, it is discussed in this Section because it is background information involving presentations by the United States Justice Department to Congress prior to a switch to the enactment of a traditional insanity defense in 1984. A point of interest is that the mens rea insanity defense is, in effect, a variation of the mens rea model (Glossary Item II D) and involves the same type of problems previously discussed in this study (i.e. the potential erosion from strict mens rea, Glossary Item II E, to diminished capacity mens rea, Glossary Item II F). It is a significant example of attempting to reduce the potential admissibility of mental disability evidence in criminal cases with a concept which (in my judgment) arguably increases that potential.

When the Department of Justice first proposed the mens rea insanity defense to Congress in 1973 I was a trial attorney in the Criminal Section, Tax Division of that Department. In earlier years I had served on active duty in the United States Army Judge Advocate General’s Corps, and had handled psychiatric defenses as a defense counsel in Army courts-martial. Thus, after joining the Justice Department I became the Tax Division’s specialist in psychiatric defenses arising during the prosecution of criminal tax cases.¹⁰⁷ In my 1980 book I stated: "I have been personally involved in federal tax prosecutions since 1956 and, hence, have observed the federal system at close range. It is apparent that in defending their clients, it is in the interest of defense attorneys to line up with treatment-oriented determinists, who have pressed to liberalize the insanity defense (from M’Naghten to A.L.I. for example) or, even better [from the point of view of defense attorneys], for them to press for the mental disorder on mens rea concept which avoids the limiting framework of even the `lacks substantial capacity’ language of A.L.I."¹⁰⁸ (The M’Naghten and A.L.I. traditional insanity defenses are described in Glossary Item II B herein.) In my 1980 book I further said: "My own work has involved reviewing tax cases to determine whether or not there should be criminal prosecution; acting as a consultant to United States Attorneys handling criminal tax cases having psychiatric defenses; and personally participating in tax trials and hearings involving mental disorder defenses. I have found that on numerous occasions defense attorneys have taken the position that, although a mental disorder might not reach the level of insanity it still should be considered directly on the willfulness (mens rea) element."¹⁰⁹

In view of my knowledge of the issues, and the experience described in the foregoing paragraph I was surprised to find in 1973 that the Justice Department was planning to seek adoption of the mens rea insanity defense for the federal system. This involved abolishing the traditional insanity defense framework ( e.g. A.L.I. or M’Naghten) and allowing defense attorneys to shoot directly at mens rea with mental disability evidence. I considered this a defense oriented approach that could be detrimental to criminal prosecutions. I felt so strongly about it that I wrote a 1973 law journal article on the subject.¹¹⁰ Since I was an employee of the Department of Justice at that time, the article had to be cleared. Due credit should be given to the Justice Department for clearing the article for publication even though I disagreed with the Department’s position.

That 1973 article demonstrates evolvement and differences over time in my own thinking on this subject. In that article I recommended retaining a variation of a M’Naghten type traditional insanity defense (rather than moving to the mens rea insanity defense proposed by the Justice Department).¹¹¹ In my opinion, this was consistent with the law and order position I desired to maintain (and is consistent with my present position). On the other hand, I took a further position that I would not take now (i.e. after many more years of research and writing regarding the issues). I recommended that defendants also be allowed to focus on mens rea outside the insanity defense framework with an A.L.I. Section 4.02(1) concept to determine whether or not the defendant lacked the state of mind required as an element of the offense.¹¹² For all of the reasons previously discussed herein (involving the defense oriented nature of A.L.I.. Section 4.02(1)) I would not now recommend it for use in connection with mental disability evidence outside the framework of a traditional insanity defense.¹¹³ Instead, I would recommend using the strict mens rea concept described in Glossary Item II E herein. This involves admitting only severe mental disability on mens rea into evidence (outside the framework of a traditional insanity defense) which shows that the defendant fully lacked the mental capacity to have the requisite mens rea for the offense charged.¹¹⁴

Looking back in hindsight to my reasoning for recommending the Section 4.02(1) approach in my 1973 article, I suppose I felt that it was the lesser of the evils (i.e.. at least keeping a traditional insanity defense in existence as part of the picture would be of some assistance to prosecutors in controlling testimony and evidence regarding mental disability in these matters). The Department of Justice was pressing for completely eliminating the limiting framework of a traditional insanity defense which, in my judgment, would have the effect of allowing defense attorneys and mental health professionals to shoot directly at mens rea with no holds barred. It is true that in presentations to Congress the Department took the position that the approach would reduce the admissibility of mental disability evidence. However, for reasons discussed below, and in Section VIII of this study, I did not agree with these Department arguments. Perhaps Department representatives thought that their strong "law and order" language used in their presentations would create an adequate "legislative history" so that the concept would be interpreted by the courts their way. I disagreed with this then and now, in view of the similarity of the concept to the defense oriented A.L.I. Section 4.02(1).

In fact, it is important to consider that in the 1985 edition of the A.L.I. publication, Model Penal Code And Commentaries (Official Draft And Revised Comments), even the authors of this official publication of the American Law Institute specifically recognized the similarity of the Department of Justice proposals to A.L.I. Section 4.02(1). In discussing Section 4.02(1) the A.L.I. commentary refers to the fact that some states "have adopted the principle of this subsection but most do not address the issue." Included in footnote 10 in support of that statement is a listing of states. In addition, footnote 10 includes the following language: "A number of versions of the proposed federal criminal code included a provision similar to Section 4.02(1) as an intended replacement for a formal defense of responsibility. See, e.g. U.S. (p) S .1 Sec 522 (1975). However, more recent drafts have abandoned the enterprise of ‘abolishing the insanity defense’ in federal law, and contain no comparable provisions. See, e.g., U.S. (p) S. 1437 Sec. 501 (Nov. 1977) "¹¹⁵ This is a clear demonstration of how the mens rea insanity defense can be interpreted in a defense oriented manner.

I continued with the Justice Department until my retirement in 1980. As of that time the Department had temporarily backed away from its proposal to abolish the traditional insanity defense and adopt the mens rea insanity defense. Nevertheless it was still in favor of the proposal. Thus, it later continued in its presentations to Congress recommending that approach. I felt strongly enough about the matter that I decided to include a discussion of it in a portion of a book I had started to write towards the end of my Justice Department career. It was published in 1980.¹¹⁶ Since the book involved some of my activities within the Department and took positions against the Department’s presentations to Congress, it was necessary to obtain clearance prior to its publication. Again, the Department deserves credit for deciding that it could take this type of criticism, and thus authorized publication.

The following discussion is a summary of some of the points made in my 1980 book with reference to disagreeing with proposals to abolish the traditional insanity defense and adopt the mens rea insanity defense approach in the federal system. This will be followed by Phase Two, a summary (based on my more recent articles) of later developments, including those in 1983 and 1984, when there was a final abandonment of proposals for the federal system to adopt the mens rea insanity defense, and instead a traditional insanity defense was adopted. I shall also be making the point, however, that a diminished capacity mens rea concept (Glossary Item II F and A.L.I. Section 4.02(1)) still remains in the federal system outside the insanity defense framework.

In my 1980 book, I argued against proposals that a mens rea insanity defense (focusing directly on mens rea) should be adopted as a replacement for a traditional insanity defense. I pointed out the defense oriented nature of A.L.I. Section 4.02(1) and similar concepts focusing directly on mens rea outside the traditional insanity defense framework.¹¹⁷ In support of such arguments I mentioned the similarity of language in the mens rea insanity defense to the language in A.L.I. Section 4.02(1) and that mental disability evidence directly on mens rea eliminates the control furnished by the legal framework of a traditional insanity defense.¹¹⁸ I also discussed the status of proposals for the mens rea insanity defense to be adopted in the federal system (i.e. until 1979 at the time the book was being written).¹¹⁹

For example, with reference to the federal system, the 1973 proposal is as follows: "It is a defense to a prosecution under any federal statute that the defendant, as a result of mental disease or defect, lacked the state of mind required as an element of the offense charged. Mental disease or defect does not otherwise constitute a defense."¹²⁰ However, the language of this and later proposals is similar to language in Rhodes v. United States, 282 F.2d 59 (4th Cir. 1960); language in United States v. Brawner, 471 F.2d 969, 998-1002 (D.C. Cir. 1972); and the concept contemplated in Federal Rule 12.2(b) requiring notice if "a defendant intends to introduce expert testimony referring to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged." In addition, the language of the proposals is similar to the defense oriented A.L.I. Section 4.02(1) that evidence "that the defendant suffered from a mental disease or defect shall be admissible whenever it is relevant to prove that the defendant did or did not have the state of mind which is an element of the offense."¹²¹ As noted earlier (note 115 and accompanying text) this similarity to A.L.I. Section 4.02(1) has been confirmed by the authors of an official publication of the American Law Institute.

As stated in my 1980 book with reference to the above mentioned language and concepts: "All of these authorities contemplate that mental disorder, less than required for full lack of responsibility (insanity under the test), may be used in attempts to show that the defendant did not have the state of mind for the offense." Also, according to certain mental health professionals and defense attorneys, the purpose of these approaches is to liberalize use of mental disorders and avoid the "strait-jacket" of traditional insanity defenses.¹²² Nevertheless, in my 1980 book I stated: "The proponents of the mens rea [insanity] test for the federal criminal code seem to have brushed by all of these developments of the past twenty-five years or so and apparently assume that the courts will blindly follow the lead in the article by Dean Morris and give a tight objective theory interpretation to the proposal."¹²³ (The 1968 article by then Professor (later Dean) Norval Morris, of the University of Chicago law school, is referred to at pages 54, and 63-71 of my 1980 book.¹²⁴)

As noted above, at the time my 1980 book was written, the Department of Justice had momentarily backed away from its presentations to Congress favoring the mens rea insanity defense. Nevertheless, in Senate Report 95-605, a report by the Senate Judiciary Committee regarding the 1977 Criminal Code Reform Act, there seemed to be somewhat of a green light for future consideration of the mens rea insanity defense proposal by Congress (and perhaps in other jurisdictions). This is discussed at pages 74-95 in my 1980 book.¹²⁵ In that discussion, I set forth the "law and order" arguments of those (including Justice Department representatives) who favored the mens rea insanity defense. In reply, I argued that the concept could be interpreted in a defense oriented manner. In those arguments I used points previously discussed in this article, particularly including the similarity of the language in the mens rea insanity defense to the defense oriented A.L.I. Section 4.02(1). Readers can refer to the details in my 1980 book. They include the fact that A.L.I. Section 4.02(1) was mentioned in a footnote in the 1969 report of the consultant to the National Commission On Reform Of Federal Criminal Laws (Brown Commission). That report was the basis for the later mens rea insanity defense proposals in the federal system. I stated that it could be expected that the reference in the footnote could be interpreted to mean (at least by those who are defense oriented) that the mens rea insanity defense proposal is not as law and order oriented as indicated in the comments of the consultant and other proponents of the mens rea insanity defense.¹²⁶

It is of interest to point out that in his March,1973 letter to Congress regarding the federal system of criminal justice President Nixon made statements regarding the proposed mens rea insanity defense. He said that the "formulation would provide an insanity defense only if the defendant did not know what he was doing." He further said: "Under this formulation, which has considerable support in psychiatric and legal circles, the only question considered germane in a murder case, for example, would be whether the defendant knew he was pulling the trigger of a gun." In reply to that, I stated in my 1980 book: "A question for consideration, however, is whether or not the ‘considerable support in psychiatric and legal circles’ was based on the tight statement expressed in Mr. Nixon’s letter; some more liberal interpretation at least thought to be implied in the Brown Commission consultant’s report; or perhaps awareness of the liberal theory of the use of evidence of mental disorder on mens rea as it has existed in recent years."¹²⁷

In Senate Report No. 95-605 there was also reference to the favorable reaction of bar groups to the proposed mens rea insanity defense. In reply to this in my book, I stated: "A question arises whether or not the bar groups cited as being favorable to the proposal were focusing on what they thought might be the opportunity to have the courts give a liberal interpretation to the proposal. This could be related to the ambiguities in some of the early material on the subject, including the Brown Commission consultant’s report, previously discussed."¹²⁸ Again, in looking back on it at this time it is my judgment that a major element involved is the wide open nature, and lack of framework of the mens rea insanity defense, particularly including the fact that its language is similar to A.L.I. Section 4.02(1).

It is of interest to compare this situation to developments which took place in California (as earlier discussed in this article). In order to have an adequate focus, it is worthwhile to look again at the language in the various concepts. First, A.L.I. Section 4.02(1) is as follows: "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."¹²⁹ California Penal Code Section 28(a) includes the statement: "Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." As noted above, the mens rea insanity defense states: "It is a defense to a prosecution under any federal statute that the defendant, as a result of mental disease or defect, lacked the state of mind required as an element of the offense charged. Mental disease or defect does not otherwise constitute a defense." It is my position that the language in Penal Code Section 28(a) and the mens rea insanity defense is sufficiently similar to the defense oriented A.L.I. Section 4.02(1) concept, that defense attorneys and other defense oriented groups and individuals are not too unhappy with either California Penal Code Section 28(a) or the mens rea insanity defense. This was previously developed in this article with reference to California Penal Code Section 28(a).¹³⁰ The same reasoning applies to the mens rea insanity defense (particularly including the similarity to A.L.I. Section 4.02(1)) and similarity to the later adopted American Bar Association Criminal Justice Mental Health Standard 7-6.2. As earlier noted, A.B.A. Standard 7-6.2 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."¹³¹ Thus, this language also fits into the same pattern, giving further ammunition for defense oriented arguments regarding Penal Code Section 28(a) and the mens rea insanity defense. A basic point with reference to all of these concepts, however, is that there is no indication how severe the mental disability needs to be, and no functional or normative guides such as in traditional insanity defenses (i.e. there is an insufficient legal framework for guidance of juries).

I was not alone in raising questions of the type that I did in my 1980 book regarding the mens rea insanity defense. Harvard Law School Professor Alan Dershowitz had said that the concept could be interpreted in a defense oriented manner.¹³² Dean Abraham Goldstein, of the Yale Law School, stressed the need for a traditional insanity defense type of framework (i.e. "the need for functional and normative guides for judge and jury as to the nature of the mental disease or defect which can qualify for an insanity defense.")¹³³

Chief Judge David Bazelon, of the Court of Appeals for the District of Columbia Circuit, agreed that the mens rea insanity defense could be interpreted in a liberal manner. Thus, in an article published in 1977 he favored the mens rea insanity type of defense because of his belief that abolishing the traditional insanity defense and directly focusing on mens rea would liberalize the admissibility of mental disability evidence.¹³⁴ Other authorities, including Doctor Alan A. Stone, the 1979 President of the American Psychiatric Association, pointed out that the mens rea insanity defense can be interpreted in either a defense or prosecution oriented manner.¹³⁵ In any event, for all of the reasons previously discussed in this study (particularly the similarity to A.L.I Section 4.02(1) and A.B.A. Standard 7-6.2) I am convinced that defense attorneys and others who are defense oriented will hammer away in favor of the defense oriented interpretation. Since it can be interpreted as a defense oriented concept, it appears that at least some courts will interpret it in that manner.

Although I furnished copies of my book to Department of Justice representatives, they brushed by my arguments (and those of others who were questioning the mens rea insanity defense concept), and pressed for it again after 1980. In 1982 the United States Senate Judiciary Committee rejected the mens rea insanity defense. As stated in my 1987 Pepperdine Law Review article, up to that time proponents continued to use "strict mens rea rhetoric in their assertions that it is a `law and order’ way to reduce use of mental disorders in criminal cases."¹³⁶ In letters to various United States Senators I presented my views that the mens rea insanity defense could be interpreted in a defense oriented manner. I also made my 1980 book, previously referred to herein, available to some of them, including Alabama Senator Howell Heflin (former Chief Justice of the Alabama Supreme Court). Senator Heflin was a leader in the efforts which finally caused Congress to back away from the mens rea insanity defense.¹³⁷

As noted in my 1993 article, in spite of the strict mens rea , law and order, rhetoric used by the Justice Department and other proponents of the mens rea insanity defense, others have recognized that it can be interpreted in a defense oriented, diminished capacity mens rea manner.¹³⁸ Idaho, Montana and Utah have adopted the mens rea insanity defense (as discussed in Section VIII of this article). Thus, these issues will be further discussed in that Section.

Phase Two

As noted above, Phase Two involves the adoption of a traditional insanity defense for the federal system in 1984. Also, it is my position that at that time the federal system retained a variation of diminished capacity mens rea (Glossary Item II F) authorizing admissibility of mental disability evidence outside the framework of the traditional insanity defense. In order to cover these developments the following discussion will be based on my 1987 and 1989 Pepperdine Law Review articles; and my 1991 article entitled Diminished Capacity Dilemma In The Federal System which I wrote at the request of the West Publishing Company . This was published and still remains in the Westlaw computerized database. See also my 1993 Western State University Law Review article at pages 458-463.

As previously noted herein, after it was decided not to move ahead with the proposal for the mens rea insanity defense, in 1984 Congress adopted a traditional insanity defense, which was a variation of M’Naghten. That defense was as follows: "It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense." In the final version, as enacted, the word "severe" was added immediately prior to the words "mental disease or defect" in the first sentence.¹³⁹ Particularly because of the addition of the word "severe" this could be considered a law and order version of a traditional insanity defense.

A problem arose, however, in connection with the meaning of the words "Mental disease or defect does not otherwise constitute a defense." In litigation regarding the statute, representatives of the United States Justice Department took the "insanity defense or nothing" type of position that no mental disability evidence on mens rea was admissible outside the framework of the traditional insanity defense. (Compare earlier discussion of this issue in Section IV of this article.) Courts disagreed with the Justice Department, and held that the legislative history of the 1984 statute demonstrated that Congress only intended to preclude diminished responsibility-type defenses (compare Glossary Item II G), and did not exclude mental disability evidence on mens rea under the mens rea model. (Compare Glossary Items II C, II D, II E and II F.) ¹⁴⁰

A further significant point, as developed in my articles, is that important legislative history was not referred to in official legislative history publications (and thus was not discussed by the courts). This was the testimony on March 17, 1983 of then Department of Justice Assistant Attorney General (Criminal Division) D. Lowell Jensen before the Subcommittee on Criminal Justice of the House Judiciary Committee. In my various articles I have shown that arguably his testimony is legislative history which could be used to show that Congress may have intended that diminished capacity mens rea (Glossary Item II F) is admissible outside the framework of the insanity defense rather than strict mens rea (Glossary Item II E). ¹⁴¹

In fact, during this period prior to adoption of the 1984 federal statute described above I was personally involved in making the foregoing point about the existence of the diminished capacity mens rea-type concept in the 1984 legislation. This was in my testimony and written presentations to a committee of the American Bar Association. I submitted a fifteen page letter (which amounted to a brief, including citations to authorities) dated October 6, 1983 to Richard P. Lynch, Director, Criminal Justice Mental Health Standards Project, American Bar Association. This was in response to the general invitation to submit comments and recommendations regarding the A.B.A. draft standards in the publication entitled First Tentative Draft, Criminal Justice Mental Health Standards. In that October 6, 1983 letter I argued strongly against the adoption of A.B.A. Standard 7-6.2, stating, in effect, that it amounted to the diminished capacity mens rea concept. In addition, in that letter I pointed out that a diminished capacity mens rea-type concept was in the legislation currently being considered by Congress (i.e. after the abandonment of the mens rea insanity defense as discussed above).¹⁴² On the last page of that letter to Mr. Lynch I listed those who were to receive copies. They were: Attorney General William French Smith; Chairman Strom Thurmond, Senate Judiciary Committee; Senator Howell Heflin; Senator Arlen Specter; Chairman Peter Rodino, House Judiciary Committee; and United States Attorney Stanley Harris. On or about October 6, 1983 copies were delivered to the offices of each of those individuals.

As a result of the October 6, 1983 letter, I was invited to testify, and did so on November 11, 1983 at a meeting of the Standing Committee On Association Standards For Criminal Justice of the American Bar Association. Transcripts of that public Hearing were made, and I have a copy of the transcript containing my testimony. In addition, I presented to the Committee a comprehensive typed supplement to my October 6,1983 letter entitled: "Supplemental Comments On Standard 7-6.2 `First Tentative Draft, Criminal Justice Mental Health Standards.’" (My October 6, 1983 letter, the Supplemental Comments document and the transcript of my testimony should presumably still be available in American Bar Association files.)

As noted above, I used my Supplemental Comments document regarding Standard 7-6.2, to supplement my October 6, 1983 letter and my verbal presentation to the Committee. The following is a summary of my positions as expressed in that document (which I shall refer to hereinafter as Supplemental Comments). It may be of interest to compare my positions taken at that time with those in this web site presentation. Thus, I shall make cross references to this study.

One. I listed the jurisdictions precluding mental disability testimony and evidence on mens rea outside of the traditional insanity defense framework. ( Supplemental Comments, pages 1-2. Cf. supra notes 1, 2 and 29 herein and accompanying text.)

Two. I stressed the need for a traditional insanity defense as a legal framework, citing United States v. Currens, 290 F.2d 751,773 (3d Cir. 1961). I pointed out that a traditional insanity defense standard is required in order to "provide the jury with a verbal tool by which it can relate the defendant’s disease or defect to his total personality and by means of which it can render an ultimate social and moral judgment." I further said that A.B.A. Standard 7-6.1 (the traditional insanity defense the Committee was considering at that time) was such a standard, but that Standard 7-6.2 (which the Committee was also considering and was the focus of my comments) "provides defendants with a means to avoid it." (Supplemental Comments, page 2. Cf. supra notes 11, 12 and accompanying text, and Glossary Item II B herein.)

Three. In order to clarify the exact meaning of the various concepts I was discussing, I stated that I was adopting the labels for the concepts as used by Professor Peter Arenella in his 1977 Columbia Law Review article. (Supplemental Comments page 2.) In effect, I described them as previously discussed in this study. See supra Glossary Item II D (Mens Rea Model), note 14 and accompanying text; Glossary Item II E (Strict Mens Era), note 15 and accompanying text; Glossary Item II F (Diminished Capacity Mens Rea), note 16 and accompanying text; and Glossary Item II G (Diminished Responsibility), note 18 and accompanying text.

Four. I then stated my reasons for objecting to the proposed A.B.A standard 7-6.2, which includes language 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." I pointed out that this language and the Commentary in the Committee report make it completely clear that Standard 7-6.2 is the broad, diminished capacity mens rea approach described by Professor Arenella. (Supplemental Comments page 2. Cf. supra notes 4, 16,17, 20-28, 31, 65, 69, 88, 104, 131, 142 and accompanying text; also Glossary Item II F; Section IV generally; and Item (b) of the California "Additional Considerations"; which refer to the defense oriented nature of A.B. A. Standard 7-6.2, and in fact indicate that it is the same concept as defense oriented A.L.I. Section 4.02(1).)

I then mentioned three points in support of my objections to A.B.A. Standard 7-6.2 . They are:

(1) The traditional insanity defense (A.B.A. Standard 7-6.1) the Committee was also considering required a "mental disease or defect," inability "to appreciate the wrongfulness of conduct," and the mental disease or defect must have "substantially affected the mental or emotional process...." I pointed out that under Standard 7-6.2 there are no such standards. I stated, therefore, that mental health experts can shoot directly at mens rea with no bottom line on how serious the mental disability needs to be, and without the right-wrong or other standard. Thus, I said that there would be no guidance for the experts, defense and prosecuting attorneys, the jury, the court, or appellate courts as to how to evaluate and place in the legal, social and moral context the evidence of mental disorder and testimony of the expert. I further stated: "In effect, 7-6.2 is a ‘second bite at the apple,’ with no standard and ‘no holds barred.’ With the tightening of the insanity defenses around the country (such as in [A.B.A.] 7-6.1) without any doubt defendants will use the 7-6.2 alternative."

(2) I stated that it is commendable that the proposed A.B.A. insanity defense standard (7-6.1) rejects the "volitional" aspect of the insanity defense. I said that in the Commentary of the Committee there is a discussion of the reason for this. I pointed out that this included a reference to "unstructured expert speculation regarding the psychological causes of criminal behavior." I then stated: "Such unstructured speculation is guaranteed under 7-6.2. The question here is that if the American Bar Association is serious about tightening use of mental disorders in criminal cases, why is 7-6.2 needed at all?"

(3) In the third point, I included the following statement: "It is obvious that the reason for the existence of 7-6.2 is to open wide the door for admission of evidence and testimony in criminal cases which would not be admissible under the insanity defense standard."

Five I also discussed Constitutional issues. Consistent with the jurisdictions who were not authorizing admissibility of mental disability on mens rea outside the traditional insanity defense I took a general position in support of the Constitutionality of that approach. (Supplemental Comments, page 2.) However, this was before my additional research on the Constitutional issues. In fact, my 1989 article was an attempt to support the Constitutionality of this complete preclusion of mental disability evidence on mens rea outside the framework of the insanity defense. Nevertheless, consistent with my 1993 article, at this point I would take a more cautious approach, and allow such mental disability evidence in under the strict mens rea approach involving severe mental disability fully negating mental capacity for mens rea. This is discussed earlier, in the Introduction to this study and is covered in my 1989 Pepperdine Law Review article (Volume 16 at 573-611) and my 1993 Western State University Law Review article (Volume 20 at 435, 465-504). (See also supra notes 29-32, 37 and accompanying text.)

Six. I then discussed how a concept similar to the proposed A.B.A. 7-6.2 (i.e. diminished capacity mens rea) standard was included in the legislation pending before Congress at that time. Without giving all the details here, in my other articles readers may see many of the points similar to those I presented to the Committee. The testimony of then Assistant Attorney General D. Lowell Jensen before a Subcommittee of the House Judiciary Committee on March 17, 1983 is particularly significant on the point that the federal system retained (and still has) a diminished capacity mens rea concept built into the legislation. which was adopted in 1984.¹⁴³ On page 3 of the previously mentioned Supplemental Comments presented to the A.B.A. Committee at the November 11, 1983 Hearing I stated: "It is clear that the inclusion of the 7-6.2 type concept in the federal legislation will be a bonanza for defendants. This is particularly true of white collar defendants who make up a large percentage of those prosecuted in the federal system. They would not qualify ordinarily for a mental disorder defense under a tight M’Naghten insanity defense. Thus, for them, the 7-6.2 type concept is `just what the doctor ordered.’"

As earlier noted, I made available a copy of my October 6, 1983 letter (which made the same general points as the Supplemental Comments discussed above) to the Attorney General and members of Congress involved in developing the legislation. My efforts were not successful. The American Bar Association adopted 7-6.2 as a Standard, which still exists. Congress included the diminished capacity mens rea concept in the 1984 legislation, and it remains in the federal system. These are defense oriented concepts, similar to A.L.I. Section 4.02(1), as previously discussed herein.¹⁴⁴

Continuation Of Phase Two: Court Opinions On 1984 Insanity Defense Reform Act

Federal court opinions regarding the 1984 Insanity Defense Reform Act, to be discussed here, include the Third Circuit Pohlot case in 1987;¹⁴⁵ the Eleventh Circuit Cameron case in 1990;¹⁴⁶ the Eleventh Circuit Westcott case in 1996;¹⁴⁷and the First Circuit Schneider case in 1997.¹⁴⁸Cameron and Pohlot make it clear (with Westcott and Schneider also so holding) that in addition to including a traditional insanity defense, mental disability evidence to negate specific intent (cf. the Mens Rea Model, Glossary Item II D herein) is authorized. On the other hand, they say that mental disability evidence focusing on diminished responsibility type of concepts (cf. Diminished Responsibility, Glossary Item II G herein) is precluded.¹⁴⁹

With particular reference to the Pohlot opinion, there is a discussion of the Court’s reasoning regarding the meaning of the1984 Insanity Defense Reform Act. It refers to Professors Morse and Arenella as leading academic commentators regarding the issues we are considering. As noted throughout this article (and in my 1980 book and earlier articles) I have adopted the concepts and labels used by Professor Arenella in his 1977 Columbia Law Review article. In my judgment, they present a complete and accurate method of discussing the relevant issues, and are less confusing than the approach in Pohlot (which attempts to combine the concepts and labels of both Morse and Arenella).

As earlier noted, the Arenella labels and concepts are as follows:

Mens Rea Model. This is Professor Arenella’s general concept, which he subdivides into strict mens rea and diminished capacity mens rea (Glossary Item II D, and supra note 14 and accompanying text).

Strict Mens Rea. This contemplates admitting only severe mental disability into evidence which shows that the defendant fully lacked the mental capacity for the requisite mens rea for the offense charged. It has the effect of demonstrating that the defendant did not have the mens rea (Glossary Item II E, and supra note 15 and accompanying text).

Diminished Capacity Mens Rea. This allows almost unlimited evidence of mental disorder to be admitted directly on mens rea. It merely requires a showing that the defendant was less mentally capable than a normal person of having the requisite mental state for the offense(Glossary Item II F, and supra notes 16, 17 and accompanying text.)

Diminished Responsibility. This concept (under varying labels) refers to use of mental disorder evidence to reduce the degree of the crime. There is no attempt to specifically correlate the mental disorder to the mens rea elements under evidentiary rules. It contemplates that the person is less culpable than an ordinary defendant. It considers the mental disorder as a mitigating factor, having the effect of reducing the degree of the crime for the purpose of reducing the punishment. In effect, it is a lesser form of a traditional insanity defense (cf. Glossary Item II B). Although it may not show complete lack of responsibility (which can be done under a traditional insanity defense), diminished responsibility can be used to show that the defendant is only partly responsible and should be punished less severely (Glossary Item II G, and supra note 18 and accompanying text).

Readers may wonder why in this article and in my earlier writings¹⁵⁰ I have consistently used Professor Arenella’s labels and descriptions of the concepts we are considering. First, my research has convinced me that his labels and descriptions present the most accurate and usable method of discussing the issues. Second, in order to handle the convoluted subjects there has to be consistency in labels and definitions or, as the literature and cases demonstrate, there is a tendency to become lost in "the battle of the labels." As will be discussed below, an example of this problem is the picture presented in the Pohlot opinion which has tried to combine the labels used by Professors Morse and Arenella.

It is of particular interest that in the Pohlot case, which focuses on the 1984 federal legislation, there is emphasis on the writings and testimony of Professors Morse and Arenella.¹⁵¹ As earlier noted (Section V herein) these commentators are referred to in the discussions of the California situation. In the Pohlot case there is special focus on a 1984 article by Professor Morse.¹⁵² Throughout my California discussion (Section V herein) there are references to the preclusion of mental disability testimony and evidence on mental capacity for mens rea and, instead, adoption of the actually formed mens rea concept in the California legislation. My California discussion makes the point, however, that this approach leaves it open for a defense oriented interpretation of the legislation.¹⁵³

Pohlot and other federal cases have left similar openings for defense oriented interpretations. Nevertheless, as developed earlier, it is understandable why the courts have not been able to successfully tighten the federal legislation, particularly because of the legislative history resulting from the testimony of Assistant Attorney General D. Lowell Jensen, which can be interpreted as diminished capacity mens rea.¹⁵⁴

Pohlot not only refers to the 1984 Morse article,¹⁵⁵ but also to his testimony at hearings.¹⁵⁶ Nevertheless, in my judgment, the court depends too much on the 1984 Morse article in interpreting the 1984 federal Insanity Defense Reform Act.

As noted in Headnote 3 at 827 F.2d 889 and at pages 896-97, the Pohlot opinion appropriately holds that the Act does not preclude the defendant from introducing evidence of mental abnormality in order to negate mens rea and disprove elements of the crime. However, the opinion seems to attempt to reduce the admissibility of such evidence as much as possible. Nevertheless, in my opinion, that effort is not too successful for the reasons discussed below.

A major problem in the Pohlot opinion is that it adopts the "actually formed" approach, leaving openings for defense attorneys to argue the similarity of that concept to the defense oriented American Law Institute Section 4.02(1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2 approaches. (Compare text accompanying footnotes 20-28, 54-74, 78-79, 104, 130, 131 and 141 in this article. See also generally the above discussion regarding my written and verbal presentations to the American Bar Association Committee regarding A.B.A. Standard 7-6.2.)

In his 1984 article Professor Morse strongly urges that jurisdictions adopt the actually formed approach.¹⁵⁷ (Compare Section V of this article regarding California, discussing the involvement of Professor Morse in adopting that concept in California.) The last sentence in his 1984 article includes the following recommendation: "The law should focus on whether defendants actually formed mens rea rather than on whether they had the capacity to form it...."

It is clear that the Pohlot opinion approved the "actually formed" mens rea concept for the federal system (apparently influenced by the 1984 article by Professor Morse).¹⁵⁸ The opinion states: "A second strain of diminished capacity permits a defendant to show not only that he lacked the mens rea in the particular case but also that he lacked the capacity to form the mens rea. Whether a defendant has the capacity to form mens rea is, of course, logically relevant to whether the defendant possessed the requisite mens rea. Commentators have agreed, however, that only in the most extraordinary circumstances could a defendant actually lack the capacity to form mens rea as it is normally understood in American law." ¹⁵⁹ The Court goes on to include a discussion of statements by commentators, and a consideration of California cases in the 1960’s and 1970’s, and then states: "These decisions eventually led a broad alliance of political forces through referendum to abolish the defense of diminished capacity. The new law abolished the use of evidence to show that a defendant lacks the capacity to form mens rea. The law, however, explicitly permitted the use of evidence of mental disease to show that a defendant actually lacked mens rea. See Cal. Penal Code Sec. 28 (as amended)." The Court further says: "In rejecting the `diminished responsibility’ defenses as accepted by California courts, Congress barred these theories of justification from consideration by juries. Only the first of our typology of `defenses’ is permissible, namely the use of evidence to prove that the defendant actually lacked mens rea." [Emphasis supplied.]¹⁶⁰

As indicated in the above paragraph the Pohlot opinion says the federal system should be in the same position as the California "actually formed" legislation discussed in Chapter V of this article. Statutes (including California Penal Code Sec. 28) were involved in California. In the Federal system, as interpreted by the courts, including the Third Circuit in the Pohlot opinion, the mens rea model was left in place, outside of the traditional insanity defense framework. With reference to this, similar to California, instead of using a strict mens rea concept involving the admission in evidence of only severe mental disability which shows that the defendant fully lacked the mental capacity for mens rea, the Pohlot opinion accepts the approach in the California legislation, as discussed in Section V of this article. This involves the "actually formed" mens rea concept.

The effect of this is that, under the Pohlot approach, all of the same problems (similar to those in California) would be built into the federal system. As noted in Section V of this article, these include: (1) The "actually formed" concept will not reduce admissibility of mental disorder as much as contemplated by some.¹⁶¹ (2) A major problem with the actually formed concept is that its language is similar to that in American Law Institute Section 4.02(1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2.¹⁶² This gives the opportunity for defense attorneys to argue this defense oriented interpretation of the federal legislation. (3) Similar to the situation in California, mental health experts testifying in the federal system are placed in the untenable position of trying to testify about "actually formed" mens rea (concerning which under ordinary rules of evidence they cannot render expert opinions since it involves the facts of mens rea rather than mental capacity for mens rea where they do arguably have expertise).¹⁶³

As stated in the earlier discussion of these issues with reference to California, a tighter approach in reducing mental disability testimony and evidence on mens rea in the federal system would be to adopt the strict mens rea approach. This involves admitting into evidence, outside the traditional insanity defense framework, only expert testimony and evidence involving severe mental disability which establishes that the defendant completely lacked the mental capacity for mens rea involved in the offense.¹⁶⁴ It is of interest that, in effect, the language in Pohlot states that the strict mens rea approach is a tight concept.¹⁶⁵

A basic point with reference to the Pohlot opinion can cause a misunderstanding of the Arenella position. In Pohlot it is not pointed out that Arenella breaks the Mens Rea Model (Glossary Item II D) down into Strict Mens Rea (Glossary Item II E) and Diminished Capacity Mens Rea (Glossary Item II F), which is a much more liberal, defense oriented concept than strict mens rea.. The references to Arenella in Pohlot seem to refer only to Arenella’s Strict Mens Rea concept (Glossary Item II E). Beyond that, however, it is of interest that the position stated in Pohlot accurately reflects the language of pages 43-44 in the 1984 article of Professor Morse . At page 44 Morse also firmly recommends the "actually formed" concept¹⁶⁶ (with which I disagree for all of the reasons previously stated in this article).

The major point I am making in this study is that just because strict mens rea, involving severe mental disability causing complete lack of mental capacity is rare, is not a reason to avoid the concept (which seems to be the position of Professor Morse). Instead, adoption of the strict mens rea concept (rather than the actually formed approach) is a way to handle the issues in a law and order as well as a constitutional manner (i.e. allowing in mental disability evidence on mens rea but within the narrow context of the Strict Mens Rea approach as indicated in Glossary Item II E).

Again, a major consideration is that the actually formed approach in California (and now in the federal system according to the Pohlot interpretation) opens it up so defense attorneys can argue applicability of the defense oriented A.L.I. Section 4.02(1) and A.B.A. Standard 7-6.2.¹⁶⁷ Clearly that could not be done under the Strict Mens Rea (Glossary Item II E) concept, which is the reason I am recommending the strict mens rea approach. It should be noted, in this connection, that even in the Pohlot opinion there is a reference to A.L.I. Model Penal Code Section 4.02(1), which could arguably leave it open for defense attorneys to argue the applicability of that defense oriented approach regarding the actually formed mens rea concept in the federal legislation.¹⁶⁸ Again, note that in his 1984 article Professor Morse also refers favorably to the use of an A.L.I. Section 4.02(1) type of concept.¹⁶⁹

In the Pohlot opinion the term "rare" is used with reference to describing the frequency of defendants actually lacking the mental capacity for mens rea. For example, as earlier noted, the Court says "that only in the most extraordinary circumstances could a defendant actually lack the capacity to form mens rea as it is normally understood in American law."¹⁷⁰ See also the Pohlot opinion at 827 F.2d 900 where the Court states: "Only in rare cases, however, will even a legally insane defendant actually lack the requisite mens rea purely because of mental defect." It is important to note, however, that in my judgment the use of the term "rare" in this sense could only refer to Professor Arenella’s Strict Mens Rea (Glossary Item II E) concept, which contemplates "admitting only severe mental disability into evidence which shows that the defendant fully lacked the mental capacity to have the requisite mens rea for the offense charged." This would clearly not refer to Professor Arenella’s Diminished Capacity Mens Rea (Glossary Item II F) concept which allows in evidence "any showing that the defendant was less mentally capable than a normal person of having the requisite mental state for the offense charged." In fact, throughout this article I have stressed that the Diminished Capacity Mens Rea concept (Glossary Item II F) is the liberal, defense oriented equivalent of A.L.I. Section 4.02(1) and A.B.A. Criminal Justice Mental Health Standard 7-6.2. The use of this in various jurisdictions is far from "rare," and tightening that concept is the major focus of this study. A problem is that the Pohlot opinion does not make the clear distinction between "strict mens rea"and "diminished capacity mens rea" (i.e. as is done in the 1977 article by Professor Arenella).

A related point is that in the 1984 article by Professor Morse ( referred to by the Court in the Pohlot opinion) there is not a focus on the distinction between strict mens rea and diminished capacity mens rea. Nevertheless, in that article he uses the term rare or rarely with reference to mental disability which "negates" mens rea; or which demonstrates that the defendant "lacked" or "destroyed" mens rea etc.¹⁷¹ Thus, whatever Professor Morse may have had in mind, his language could be interpreted to mean a strict mens rea concept (Glossary Item II E) which refers to testimony and evidence showing that the defendant has a severe mental disability and thus does not have the mental capacity for the requisite mens rea. Certainly it would seem that his language does not contemplate that the use of Diminished Capacity Mens Rea (Glossary Item II F) is rare. The Pohlot opinion also uses the words "lack" or "negate" mens rea at various points in discussing the issues (827 F.2d at 890, 894-902, 906). Arguably this could mean "completely" or "fully" lack or "negate" mens rea. Thus, in this connection the Pohlot opinion does not appear to be talking about Diminished Capacity Mens Rea (Glossary Item II F). Nevertheless, with reference to the Professor Morse 1984 article and California’s "actually formed" mens rea concept (and its acceptance by Pohlot in the federal system) there are openings for defense attorneys to argue the similarity of that concept to the defense oriented A.L.I. Section 4.02(1) and A.B.A Standard 7-6.2 approaches.

A major additional consideration, not mentioned in the various court opinions with reference to the 1984 Insanity Defense Reform Act for the federal system, is the testimony of then Associate Attorney General D. Lowell Jensen. He testified before the Subcommittee on Criminal Justice of the United States House Of Representatives Judiciary Committee on March 17, 1983. As discussed in my previous articles, his testimony can arguably be considered as legislative history demonstrating that in fact Congress may have intended a diminished capacity mens rea type of concept (Glossary Item II F). In effect, as discussed throughout this article, this is an A.L.I. Section 4.02(1) or A.B.A. Criminal Justice Mental Health Standard 7-6.2 defense oriented concept.¹⁷²

It is true that, as indicated in the foregoing discussion of the Pohlot opinion, there is language in various court opinions indicating such a defense oriented concept is not involved. Nevertheless, in evaluating the entire picture the Jensen testimony should be considered. (The testimony was apparently not considered by the courts because it was not mentioned in the usual legislative history type items.)

In any event, the Jensen testimony raises the possibility that Congress may have intended an even more defense oriented concept than the "actually formed" approach which the Pohlot opinion says is involved in the federal legislation. Nevertheless, in this article there will be no attempt to resolve that issue. Instead, as will later be set forth in the recommendations for the federal system, similar to California, there will be a recommendation that the federal system continue with a traditional insanity defense, and establish the Strict Mens Rea (Glossary Item II E) concept for mental disability evidence outside the insanity defense. If this could be done, it would tighten the system well beyond either the diminished capacity mens rea or actually formed mens rea approaches.

Another major point should be reiterated at this time. This involves why defense attorneys, and defense oriented individuals and entities desire the "actually formed" approach. As noted earlier, this is partly because there are no references to a need for a severe mental disorder. Furthermore, there are no standards or guidelines regarding the need for the mental disability to have a significant effect on knowledge or control, as in traditional insanity defenses. In other words, there is no framework for controlling the mental disability evidence and testimony. It is true that if the "actually formed" mens rea concept is interpreted to mean that, to be found not guilty of a certain degree of an offense, a defendant must fully or completely lack the mens rea for that degree, then that is a tight law and order concept. However, as indicated throughout this study, the potential for a more liberal interpretation exists. This involves the possibility that defense attorneys will focus on the similarity of language of the actually formed concept and the defense oriented A.L.I. Section 4.02(1) and A.B.A. Criminal Justice Mental Health Standard 7-6.2 concepts.

Earlier discussions are worth reiterating here in order to demonstrate again why defense attorneys and defense oriented individuals and entities are not too unhappy with the California actually formed mens rea approach (which is now also in the federal system according to the Pohlot opinion). A basic point is that there are two ways to visualize strict mens rea. The first, as described by Professor Arenella, contemplates admitting only severe mental disability into evidence which shows that the defendant completely lacked the mental capacity for mens rea (and thus did not have the mens rea). The second does not focus on mental capacity but, instead, refers to admissibility of evidence on mental disability directly on whether or not the defendant had the requisite mens rea.¹⁷³ As indicated throughout this article, it is my recommendation to adopt the first approach (Glossary Item II E) if there is serious interest in reducing admissibility of mental disability evidence on mens rea. The second approach is, in effect, the actually formed concept adopted in California (and in the federal system, according to the Pohlot opinion). It opens up all of the problems of similarities with the defense oriented A.L.I. Section 4.02(1) and A.B.A. Criminal Justice Mental Health Standard 7-6.2. Also it places mental health professionals in the position of reaching into opinions on the facts of mens rea, which is beyond their area of expertise under the legal rules of evidence. These issues have been previously discussed in Section V of this article (California) as well as earlier in this federal section.¹⁷⁴

Perhaps the most significant indication of why the actually formed mens rea concept is acceptable to defense attorneys and other defense oriented individuals and entities involves the point expressed in comments in an article by Professors Richard J. Bonnie and Christopher Slobogin which has been previously discussed in Section V (California). In that article they discuss the difference between the severe mental disability resulting in complete lack of capacity to form mens rea, as compared with the A.L.I. Section 4.02(1) concept. They state that "lack of capacity due to mental disease - would admit little testimony other than that in support of an insanity defense. Commentators have noted that, in order to negate intent, evidence would have to show ‘severe mental disability that substantially interfered with the defendant’s reality testing functions.’" In a footnote they further state: "The Model Penal Code is significantly less restrictive than the usual common-law formulations. First, the mens rea concepts are more subjectively oriented than the common law formulations, so evidence about the mental condition is likely to be relevant, in theory at least, in more cases; second, and more important, Section 4.02(1) does not require a showing of lack of capacity to have the required state of mind."¹⁷⁵ For purposes of this discussion, the important point made in these excerpts from the Bonnie and Slobogin article is the fact that the historically defense oriented A.L.I. Section 4.02(1) concept specifically does not focus on mental capacity.

The clear implication in the Bonnie and Slobogin article is that something less than severe mental disability can be admitted in evidence on mens rea under Section 4.02(1). Considering that point and the similarity of language in Section 4.02(1) and the actually formed mens rea concept adopted in California (and in the federal system, as indicated in Pohlot) it can be argued that something less than severe mental disability can be admitted on mens rea in California and the federal system. (As discussed earlier, and to be discussed further in Section VIII of this article regarding Idaho, Montana and Utah, the mens rea insanity defense can also be considered similar to the defense oriented A.L.I. Section 4.02 (1).)¹⁷⁶ Also, reiterating a point made earlier in this article, law professors Ralph Reisner and Christopher Slobogin have said that the defense oriented A.L.I. Section 4.02(1) and A.B.A. Criminal Justice Mental Health Standard 7-6.2 are identical rules.¹⁷⁷

Other federal cases have variations of the same problems discussed above in the Pohlot case. Thus, in the interests of not further lengthening this already complicated and lengthy study, most of my recommendations for improvements in the federal system (set forth later) will focus on the foregoing Pohlot discussion. In other words, that case is sufficiently illustrative of the problems so that, without going into depth regarding the same concepts in other federal cases, I can make the general points regarding the improvements needed. Nevertheless, prior to moving into the recommendations, I have selected certain phases of additional federal cases which should be considered.

The 1990 Cameron case in the United States Court Of Appeals for the Eleventh Circuit is covered generally (along with Pohlot) in my 1991 article in Westlaw.¹⁷⁸ There is an important discussion in Cameron, however, which needs to be emphasized here. It supports a position I have taken throughout this article.This involves the point that there is ambiguity in the cases and literature regarding the difference between the admissibility of a severe mental disability resulting in a complete lack of capacity for mens rea and the admissibility of mental disability on mens rea without a focus on mental capacity (i.e. involving the so-called actually formed mens rea concept). Perhaps the best way to get into this is to quote from footnote 31 (907 F.2d at 1067) in the Cameron opinion . It refers to the Staggs and Frisbee federal cases. In a discussion of Frisbee the Court states in footnote 31: "At trial, the district court allowed the defendant to present psychiatric evidence that ,`due to some combination of pathological intoxication, organic brain damage, and an alcohol blackout or seizure, the defendant could not have possessed the requisite specific intent during the relevant time period’ to have committed first degree murder. One could phrase the psychiatric testimony in Staggs or Frisbee as relating to `capacity’ or `ability to form a certain intent.’ The particular label used to describe the testimony is not, however, particularly relevant whether the evidence is admissible. The proper focus should be on the proffered link or relationship between the specific psychiatric evidence offered and the mens rea at issue in the case."

Arguably California (and the federal system following it according to Pohlot) has gone too far in focusing on and eliminating a label (i.e. mental capacity). In the process, by adopting the "actually formed mens rea" concept they have also opened up the potential for arguments to be made that the defense oriented A.L.I. Section 4.02(1) and A.B.A. Standard 7-6.2 concepts are involved. All of this is covered in previous discussions regarding California and the federal system. As noted in my California recommendations (and as will be recommended later for the federal system) in my judgment only the strict mens rea concept (Glossary Item II E) should be involved. This means admitting only expert testimony and evidence involving severe mental disability which demonstrates that the defendant completely lacked the mental capacity for the mens rea. By exactly describing the "link or relationship" to mens rea in this manner this avoids shifting off into the ambiguities and potential misinterpretations of "actually formed" mens rea. It is consistent with the discussion in footnote 31 in Cameron, quoted above which, in my judgment, is the correct approach. In other words, a jurisdiction desiring to adopt A.L.I. Section 4.02(1) or A.B.A. Standard 7-6.2 should do so openly and say so specifically. Such concepts should not be allowed to slip in through the back door (through the actually formed mens rea approach) under the impression that the system is being tightened when this is arguably not the case. On the other hand, it should also be made clear if the jurisdiction desires to take the conservative position involved in Strict Mens Rea (Glossary Item II E) as I am recommending.

Another federal case which is of interest in evaluating the 1984 federal Insanity Defense Reform Act is United States v. Westcott, a 1996 case. It is a decision of the Court of Appeals for the Eleventh Circuit (which also decided the Cameron case, discussed above).¹⁷⁹ As a matter of interest, two of my articles were referred to by the defense in this litigation. They are my 1989 Pepperdine law review article on the constitutionality of drawing the line at the insanity defense, and my 1991 Westlaw article regarding the diminished capacity dilemma in the federal system. (Both citations are included in footnote 1 of this article.) They are cited in the following documents regarding the Westcott case: Brief of Appellant in the Court of Appeals for the Eleventh Circuit;¹⁸⁰ Petition for Writ of Certiorari in the United States Supreme Court;¹⁸¹and Defendant’s Proposed Special Jury Instruction No.1, submitted to the Trial Court.¹⁸²

It is of interest that the Eleventh Circuit Court of Appeals in Westcott seems to take a position precluding mental capacity and focusing on the actually formed mens rea concept¹⁸³ which is consistent with the approach in California and Pohlot. For all of the reasons previously stated, I disagree with this approach. This is discussed in Section V of this study (California) and reiterated earlier in this section (VI Federal).¹⁸⁴

In addition, in Westcott in my judgment the Court moves into a highly questionable position. It can best be summarized by quoting from the summary in Headnote 10 at page 1355 of Westcott, as follows: "Refusal to allow defendant to present expert psychiatric testimony that, as a result of his bipolar mental disorder, he could not have been acting with any fraudulent intent when he falsely represented to third parties that he was a special agent of the United States Secret Service, unless such psychiatric testimony was accompanied by an insanity defense instruction, did not impermissibly impose an insanity defense upon defendant and was not abuse of district court’s discretion; allowing defendant to present such evidence only to discuss mens rea would have enabled defendant to present insanity defense evidence while avoiding burden of proof mandated by Insanity Defense Reform Act, as district court could properly conclude that doctor’s testimony regarding bipolar mental disorder did not relate only to mens rea, but also provided support to insanity defense."

The summary in the foregoing paragraph seems to be an accurate statement of the court’s position at pages 1358-1359 of the Westcott opinion. If so, I disagree with it based on the reasons and under the authorities discussed in the Pohlot opinion (827 F.2d at 900-901). See also United States v. Schneider, 111 F.3d 197 at 20l (1st Cir. 1997), including the quotation from Lafave & Scott, Substantive Criminal Law . It seems clear that a defendant has the right, if desired, to present the testimony and evidence directly on mens rea without raising an insanity defense (even though the same evidence also might establish insanity). It is not the purpose here to fully analyze and take a position on this issue. Nevertheless it is mentioned to illustrate additional problems arising from the 1984 Federal Insanity Defense Reform Act. The focus in this study, however, is on the other issues previously discussed herein.

Recommendations For Federal System

The recommendations for the federal system are patterned after those for California (at the end of Section V in this study). Thus, readers should refer to the California recommendations and comments which will also generally apply here. The following discussion, using the California recommendations format, including the same numbers and letters, will add comments particularly relevant to the federal system.

(1). Continue with a M’Naghten type insanity defense, including a requirement for a severe mental disease or defect.¹⁸⁵

(2) Consistent with point (2) in the California recommendations, establish the Strict Mens Rea concept (Glossary Item II E) for admitting mental disability testimony and evidence outside the insanity defense framework. 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. (See also the additional comments in Recommendation (2) of the California Recommendations.)¹⁸⁶ It appears that the most feasible way to tighten the federal system would be to initiate appropriate legislation in Congress (consistent with these recommendations). The present federal legal approach regarding these issues needs to be tightened with a statute rather than depending on court decisions in the various federal jurisdictions. That is my recommendation.

Also, consistent with my California Recommendation (2), and as outlined in Section IV of this article, "insanity defense or nothing" language should be avoided. Instead, evidentiary, policy and substantive law reasoning should be used in establishing the strict mens rea concept.¹⁸⁷ It is of interest that in the 11th Circuit Cameron opinion the Court did not take a position on the constitutional issue regarding whether Congress could eliminate use of mental disability on mens rea to negate specific intent. However, in footnote 28 (at page 1066) of that opinion the Court stated: "See Campbell v. Wainwright, 738 F.2d 1573, 1580-82 (11th Cir. 1984), cert. denied, 475 U.S. 1126....(1986) (upholding Florida’s rejection of ‘psychiatric/specific intent evidence’ because of potential juror confusion). See also , Pohlot, 827 F.2d at 901-902 n. 12 (collecting cases in which courts have upheld the exclusion by various states of psychiatric evidence of mens rea on the basis of confusion, unreliability and irrelevance."¹⁸⁸ It appears that these authorities referred to by the 11th Circuit Court of appeals would support the general position in this article that such evidence could be precluded on the basis of evidentiary, policy and substantive law reasoning.¹⁸⁹ It should again be stated that my present recommendation is that a flat line applying to all cases should not be drawn at the insanity defense, but instead the evidentiary, policy and substantive law reasoning establishing the strict mens rea concept should be on a case by case basis.¹⁹⁰

It is recommended that such evidentiary, policy and substantive law reasoning focused on strict mens rea (Glossary Item II E) be used to handle the evidentiary issues described in the various federal cases. This particularly includes using such reasoning as a required part of questioning whether in fact the evidence is a "legally acceptable theory of lack of mens rea."¹⁹¹ The effect of this is that A.L.I. Section 4.02(1) and A. B. A.Criminal Justice Mental Health Standard 7-6.2 would not be in the category of a "legally acceptable theory of lack of mens rea." [Emphasis supplied.] As indicated in discussions throughout this study, those concepts involve evidence tending to have an effect on mens rea but in themselves do not fully establish a complete lack of mens rea. Under the approach I am recommending such a complete lack would be established by using the previously described evidentiary, policy and substantive law reasoning as part of the process.

Other evidentiary issues mentioned in federal cases could also be handled by applying evidentiary, policy and substantive law reasoning as described in this study. These include the issue of whether the evidence offered is grounded in sufficient scientific support to warrant use in the courtroom,¹⁹² whether the evidence is sufficiently reliable,¹⁹³whether it has sufficient probative value,¹⁹⁴and whether it is relevant.¹⁹⁵

Again, it is my recommendation that in the federal system the strict mens rea concept (Glossary Item II E) be adopted for admissibility of mental disability evidence on mens rea outside the insanity defense (using the evidentiary, policy and substantive law reasoning). This avoids the insanity defense or nothing problem, as described in Section IV of this study. This should incorporate the case by case approach as recognized in the Schneider opinion, a 1997 First Circuit case at 203, which discusses psychological evidence of impairment and includes the following language: "Although our concerns about such evidence are considerable, we shrink from any generic rule that would forbid the district courts from resolving admissibility case by case. Offenses differ from each other; the medical evidence, taken alone and in combination with other evidence, is going to vary widely; and this is an area in which everyone is still learning. In the spirit of Daubert, we rely heavily on the wise superintendence of the trial court. 509 U.S. at 592-93, 113 S.Ct. at 2796-97."

(3) Consistent with the California recommendation (3), legislative history regarding statutes (and court decisions after statutes are in place) should specifically state that A.L.I. Model Penal Code Section 4.02(1) and American Bar Association Criminal Justice Mental Health Standard 7-6.2 are not the strict mens rea concept involving severe mental disability which fully negates mental capacity (involved in Recommendation (2) above).

(4) Consistent with California Recommendation (4), courts should require hearings outside the presence of the jury in order to determine the severity of the mental disability. Unless it is clear that the severe mental disability requirement causing complete lack of mental capacity for mens rea has been met, the jury should not be allowed to hear mental disability testimony or have access to any evidence on that issue. This type of hearing involving evaluating mental disability testimony and evidence outside the presence of the jury has been recognized in federal cases in various contexts. See, for example, Headnote 6 at 890 and pages 905-906 of Pohlot (827 F.2d); Headnote 22 at 1053-1054 and pages 1055 and 1067 of Cameron (907 F.2d); pages 1356-1357 of Westcott (83 F.3d) regarding hearing on motions in limine; and pages 199-200 of Schneider (111 F.3d) regarding offer of proof outside presence of jury.

Additional Considerations

The Additional Considerations (a) and (b) points at the end of Section V in this study (following the Recommendations For California) are fully applicable to these recommended changes in the federal system. They will not be repeated here, except to say that there will be even more numerous entities, organizations, individuals, associations etc. (with varying agendas) desiring to take a position on such major changes in the nationwide federal system. Even if statutes are enacted by Congress along the lines of these recommendations there will undoubtedly remain extensive areas for disagreement. Again, however, as stated at the end of Additional Consideration (a) in Section V, probably the most that can be expected is that admissibility of minor mental disorders directly on mens rea will be reduced. This would result from the requirement for "severe" mental disability which causes "complete" lack of mental capacity. This would be at least some gain for those who are "law and order"oriented. Thus, in my judgment, it would be worth all of the effort.

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Notes

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¹⁰⁵ Harlow M. Huckabee, Resolving The Problem Of Dominance Of Psychiatrists In Criminal Responsibility Decisions: A Proposal, 27 Southwestern Law Journal 790 (1973) (Southern Methodist University School of Law), reprinted in Reform Of The Federal Criminal Laws, 1974: Hearings On S. 1 and S.1400, Before the Subcommittee On Criminal Laws And Procedures of the Senate Committee on the Judiciary, 93d Cong. 2d Session 7031, 7093-7109 (1974) [hereinafter Huckabee 1973]; HUCKABEE 1980, supra note 13 at 73-95; Huckabee 1987, supra note 1 at 26-28; Huckabee 1993, supra note 1 at 442, 453-58.

¹⁰⁶ Huckabee 1987, supra note 1 at 18-25; Huckabee 1989, supra note 1 at 601-06;

Huckabee 1991, supra note 1 (entire article); Huckabee 1993, supra note 1 at 458-63; United States v. Westcott, 83 F.3d 1354 (11th Cir. 1996); United States v. Schneider, 111 F.3d 197 (1st Cir. 1997).

¹⁰⁷ HUCKABEE 1980, supra note 13 at page v (Foreword)

¹⁰⁸ Id. at 39-40.

¹⁰⁹ Id. at 42.

¹¹⁰ Huckabee 1973, supra note 105.

¹¹¹ Id. at 790-91, 800.

¹¹² Id. at 791, 801-04.

¹¹³ See supra notes 22-23, 27-28, 45-50, 54, 57-58, 63-65, 69, 79, 88, 104 and Point (b) under "Additional Considerations" at the end of Section V (California) herein.

¹¹⁴ See supra notes 15, 70-71, 97-99, and 101-103 (California Recommendation (2)).

¹¹⁵ MODEL PENAL CODE, supra note 20 at 220-21 including footnote 10.

¹¹⁶ HUCKABEE 1980, supra note 13 at 73-95.

¹¹⁷ Id. at 30-53.

¹¹⁸ Id. at 43-51, 61-63.

¹¹⁹ Id. at 73-95.

¹²⁰ Huckabee 1973, supra note 105 at 790, n.4; HUCKABEE 1980, supra note 13 at 74.

¹²¹ HUCKABEE 1980, supra note 13 at 75.

¹²² Id. at 75.

¹²³ Id. at 75.

¹²⁴ Norval Morris, Psychiatry And The Dangerous Criminal, 41 Southern California Law Review 544 (1968) [hereinafter Morris 1968].

¹²⁵ Senate Report No. 95-605, Part 1, 95th Cong. 1st Sess. (1977); HUCKABEE 1980, supra note 13 at 74-95.

¹²⁶ HUCKABEE 1980, supra note 13 at 76-77.

¹²⁷ Id. at 78.

¹²⁸ Id. at 86-87.

¹²⁹ See supra note 20 and accompanying text.

¹³⁰ See supra notes 22-23, 27-28, 45-50, 57-58, 63-65, 69, 79, 88, 104, 113 and Point (b) under "Additional Considerations" at the end of Section V (California) herein.

¹³¹ See supra note 23 and accompanying text.

¹³² HUCKABEE 1980, supra note 13 at 88-89.

¹³³ Id. at 89-91.

¹³⁴ Id. at 92-94.

¹³⁵ Id. at 94.

¹³⁶ Huckabee 1987, supra note 1 at 26.

¹³⁷ Id. at 26-27.

¹³⁸ Huckabee 1993, supra note 1 at 454-456.

¹³⁹ Id. at 458, 460.

¹⁴⁰ Id. at 458, 460-61.

¹⁴¹ Id. at 460-63; Huckabee 1987, supra note 1 at 18-25; Huckabee 1989, supra, note 1 at 601-606; Huckabee 1991, supra note 1, entire article.

¹⁴² My October 6, 1983 letter to Richard P. Lynch, Director, Criminal Justice Mental Health Standards Project, American Bar Association, at pages 10-14.

¹⁴³ Huckabee 1987, supra note 1 at 18-25; Huckabee 1989, supra note 1 at 601-606; Huckabee 1991, supra note 1, entire article; Huckabee 1993, supra note 1 at 458-463.

¹⁴⁴ See supra notes 20-28 and accompanying text.

¹⁴⁵ United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).

¹⁴⁶ United States v. Cameron, 907 F.2d 1051 (11th Cir. 1990).

¹⁴⁷ United States v. Westcott, 83 F.3d 1354 (11th Cir. 1996).

¹⁴⁸ United States v. Schneider, 111 F.3d 197 (1st Cir. 1997).

¹⁴⁹ Cf. Huckabee 1987 at 18-25, 1989 at 601-606, 1991 entire article, and 1993 at 458-463, all cited in supra note 1. See also United States v. Westcott, supra note 147 at 1357-1358; United States v. Schneider, supra note 148 at 200-201. Cf. supra notes 139-144 herein and accompanying text.

¹⁵⁰ Cf.. Huckabee 1993, supra note 1 at 444-449.

¹⁵¹ United States v. Pohlot, 827 F.2d 889, at 897, 898 note 5, 903, 904 and 906 (3d Cir. 1987).

¹⁵² See Morse 1984, supra note 48.

¹⁵³ See supra notes 38-39, 46-50, 54, 57-59, 62-65, 69 and accompanying text.

¹⁵⁴ See supra notes 141-144 and accompanying text (and Point Six in the foregoing discussion of the "Supplemental Comments" document used in my A.B.A. Committee testimony).

¹⁵⁵ Morse, supra note 48.

¹⁵⁶ United States v. Pohlot, 827 F.2d 889, 898 n.5 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).

¹⁵⁷ Morse, supra note 48 at 5, 26 including footnote 91, 42-44 including footnote 140 and 55.

¹⁵⁸ United States v. Pohlot, 827 F.2d at 903-905.

¹⁵⁹ Id. at 903.

¹⁶⁰ Id. at 905.

¹⁶¹ See supra notes 38-39, 43-46, 51-56, 68-69 and accompanying text.

¹⁶² See supra notes 47-50, 54, 62-65, 69, 88, 104 and accompanying text.

¹⁶³ See supra notes 41, 62, 85 and accompanying text.

¹⁶⁴ See supra notes 70-71, 77, 97-102 and accompanying text.

¹⁶⁵ 827 F.2d at 903-04; cf. supra note 159 and accompanying text.

¹⁶⁶ Morse, supra note 48 at 43-44.

¹⁶⁷ See supra notes 161-162 and accompanying text.

¹⁶⁸ 827 F.2d at 897.

¹⁶⁹ Morse, supra note 48 at 6-7, including Footnote 17.

¹⁷⁰ See supra note 159 and accompanying text; United States v. Pohlot, 827 F.2d at 903.

¹⁷¹ Morse, supra note 48 at 16-18, 20, 24, 40-44.

¹⁷² See supra notes 141, 143, 154 and accompanying text. See also Huckabee 1987, supra note 1 at 19-25; Huckabee 1989, supra note 1 at 601-606; Huckabee 1991, supra note 1, entire article; Huckabee 1993, supra note 1 at 458-463.

¹⁷³ Cf. Huckabee 1993, supra note 1 at 445-446.

¹⁷⁴ See supra notes 61-71, 158-171 and accompanying text.

¹⁷⁵ See supra note 79 and accompanying text, and the citation to the Bonnie and Slobogin article in supra note 79.

¹⁷⁶ See supra notes 115, 117, 121, 126, 129-131, 138 and accompanying text.

¹⁷⁷ See supra notes 21-27 and accompanying text.

¹⁷⁸ Huckabee 1991, supra note 1; United States v. Cameron, 907 F.2d 1051 ( 11th Cir.1990).

¹⁷⁹ United States v. Westcott, 83 F3d 1354 (11th Cir. 1996), cert. denied 136 L.Ed. 2d 193 (1996).

¹⁸⁰ Brief of Appellant in Court of Appeals for the Eleventh Circuit at v, 9, United States v. Westcott, supra note 179.

¹⁸¹ Petition for Writ of Certiorari in the United States Supreme Court at v, 8, United States v. Westcott, supra note 179.

¹⁸² Defendant Westcott’s Proposed Jury Instructions (included as Appendix E to the Petition for Writ of Certiorari in the United States Supreme Court, supra note 181).

¹⁸³ United States v.Westcott, supranote 179 at 1358.

¹⁸⁴ See supra notes 153, 158-163 and accompanying text.

¹⁸⁵ See supra note 139 and accompanying text.

¹⁸⁶ See supra notes 101-103 and accompanying text.

¹⁸⁷ See supra notes 29-32, 83, 84 and accompanying text.

¹⁸⁸ United States v. Cameron, 907 F.2d at page 1066, note 28 (1986).

¹⁸⁹ See supra note 187 and accompanying text.

¹⁹⁰ See supra note 37 and accompanying text.

¹⁹¹ Cf. United States v.Pohlot, 827 F.2d at 906-907; United States v. Cameron, 907 F.2d at 1053-1054 (Headnote 22), 1056, 1067; United States v. Westcott, 83 F.3d at 1358.

¹⁹² United v. Pohlot, 827 F.2d at 905; United States v. Cameron, 907 F.2d at 1061 n.16; United States v. Schneider, 111 F.3d at 201.

¹⁹³ United States v. Cameron, 907 F.2d at 1061 n.16.

¹⁹⁴ Id at 1061 n. 16; United States v. Schneider, 111 F.3d at 201.

¹⁹⁵ United States v. Schneider, 111 F.3d at 201, 203.