Alternative Standards to Insanity

1. Alternative Standards to Insanity Lauren Vazquez Sowell July 27th, 2006

2. Overview Review of the Insanity Defense Detail Alternative Defenses Differentiate Alternative Defenses Examine Case Studies Psychologists’ Role in MSO Defenses

3. Introduction Defenses raised by the criminal defendant at the guilt determination phase of the criminal process All require investigation of the defendant’s ‘mental state at the time of the offense’ (MSO) State jurisdiction

4. Not Guilty by Reason of Insanity (NGRI) Probably the most controversial issue in criminal law What do we usually think of? Movies or Television What does it really mean? Individuals found NGRI are not ‘properly punishable’ as criminals Treatment or restraint, achieved via hospitalization rather than imprisonment

5. Frequency of Use How often is the NGRI defense used? The general public thought 43% Is this too low or too high of an estimate? Actually less than 1% How often is this defense successful? • ~0.25% • ~2.5% • ~25.0%

6. Background All crimes consist of at least two elements • actus reus • mens rea To convict an individual of a crime, the state must prove that the defendant committed the actus reus with the requisite mens rea Determining mens rea at the time of the offense provides a mechanism for retribution

7. Alternatives to NGRI Automatism Defense Mens Rea Testimony Actus Reus Testimony Affirmative Defenses Defenses Based on Intoxication ‘Guilty but Mentally Ill’ Plea

8. Automatism Defense Definition: “Actus reus without consciousness” If state of unconsciousness has happened prior to the actus reus, and if the defendant could have taken precautions to prevent a potential criminal event. No special commitment statutes governing those acquitted How is it different from NGRI? • Insane persons generally have conscious control of their acts but do not understand the nature of the act • Prosecution bears the burden of establishing actus reus and also of negating the automatism claim beyond a reasonable doubt 3) No requirement of ‘mental disease or defect’ for this defense e.g., While sleeping After brain injury After involuntary substance use Dissociative states Epileptic seizures

9. Mens Rea Testimony Definition: “A decreased level of culpability because of lesser intent” ‘Specific Intent’ vs. ‘General Intent’ Specific intent – crimes that require further intention beyond the actus reus (e.g., murder, aggravated assault) General intent – crimes that only require proof that perpetrator was conscious of the actus reus and the consequences (e.g., manslaughter, rape, battery) 4 levels of mental state: • Purpose • Knowledge • Recklessness • Negligence How is this different from NGRI?

10. Actus Reus Testimony Different from previously discussed defenses, in which the defendant concedes that they committed the crime, but argue full or partial nonresponsibility due to a mental disability. With actus reus testimony, defendant uses psychological evidence (clinicians provide character testimony) to suggest that they could not have been physically involved in the offense Three Scenarios: • Defendant denies being the perpetrator e.g., clinician testifies that defendant is passive and unlikely to commit act 2) Proof of character used to show that defendant did commit the crime (prosecution limited by defense) e.g., clinician testifies that defendant's character is consistent with that of a child molester • Clinical evidence to show a crime did occur, and that the defendant had the opportunity to commit the act e.g., clinician testifies that victim meets criteria for PTSD and was raped

11. Affirmative Defenses Defendants admit they voluntarily committed the crime, but assert they are not ‘guilty’ because of some justification or mitigating factor Traditionally, defendant had to prove defense with evidence, but now, the state must disprove the claim beyond a reasonable doubt. ~Self-Defense ~Provocation ~Duress ~Entrapment

12. Affirmative Defenses cont’ Self-Defense: “one who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he believes that he is in immediate danger of unlawful bodily harm and the use of such force is necessary to avoid this danger” Provocation: only in homicides, when the defendant can show that (1) the killing was in reaction to provocation that would cause the ‘reasonable person’ to lose control; (2) this provocation provoked the defendant; (3) a ‘reasonable person’ would not have cooled off between the provocation and the final blow; (4) the defendant did not cool off Duress: Conduct produced by an unlawful threat that causes the defendant to have a reasonable belief that the only way to avoid imminent death or bodily injury (to himself or another) is to engage in conduct that violates the criminal law; acquittal only when the defendant, faced with a choice of evils, chooses the lesser evil; not for homicide Entrapment: Similar to duress, except that the third party inducing the crime must be a government agent and the coercion need not be as significant

13. Defenses Based on Intoxication Intoxication, by alcohol or narcotics, can form the basis for an insanity defense, automatism defense, or a mens rea defense Success depends on whether intoxication was ‘voluntary,’ ‘involuntary,’ or the result of long-term addiction Voluntary – seldom given complete exculpatory effect; insanity or automatism can not be options; diminished capacity in the case of specific intent crimes Involuntary – courts much more lenient; when defendant tricked or unknowingly ingests drugs or alcohol, or in cases of ‘pathological intoxication’ Long-Term Addiction – chronic use of psychoactive substances; if able to show they lacked appreciation of consequences, consciousness, and mens rea, may be acquitted

14. ‘Guilty but Mentally Ill’ Plea Exists in at least 12 states A defendant who pleads NGRI can be found: 1) not guilty 2) guilty 3) insane 4) guilty but mentally ill (GBMI) Purpose is to provide jurors with a compromise verdict that ensures prolonged incarceration of people who are dangerous and mentally ill, and to reduce insanity acquittals and provide greater protection to the public Questionable for Two Reasons: 1) The verdict creates a significant potential for jury confusion and abuse, given the similarity between its definition of mental illness and the definition of insanity 2) The verdict is deficient because it is not a proper ‘verdict’ at all

15. Case Studies Defendant 1 Mr. D was convicted of unlawfully entering a building with intent to commit a crime. Mr. D lived with his parents next door to the plaintiff (Miss V). The night of the alleged crime, Mr. D had entered Miss V's home silently through an open door, walked into the kitchen and grasped her from behind, putting one hand on her breast. When Miss V screamed at him, saying, “get away from me, I'm telling your father" Mr. D looked alarmed and said “no, please don't do that. I'm going" and left immediately. At the trial, expert evidence was tendered showing that, when the incident occurred, Mr. D was experiencing the intermediate stage of an episode of neurological disorder known as Kleine-Levin syndrome. The symptoms of this stage include an impaired state of consciousness, full or partial memory loss and inappropriate sexual behavior. This was an actual case in New Zealand, during which the trial judge excluded Mr. D's submission of automatism following the expert witness' evidence that automatism was confined to cases of epilepsy alone. In the United States, most courts would acquit Mr. D on the basis of the automatism defense.

16. Case Studies Defendant 2 Stacey Lannert was convicted of the first-degree murder of her father. One night while her father was sleeping she entered his bedroom and shot him to death. Evidence that Stacey had been subjected to her father's repeated sexual and physical abuse was permitted along with expert testimony on PTSD. Because Stacey's father was asleep when she shot him, the defense could not prove that Stacey was in any immediate physical danger, therefore the trial court refused to instruct the jury on self-defense. The prosecution objected to the defense bringing expert testimony on Battered Spouse Syndrome because the case law states that such evidence can only be admissible if the defendant lawfully acted in self-defense or defense of another. Stacey's lawyer had not shown that Stacey's actions were based on self-defense and the expert testimony was not permitted. Stacey Lannert was convicted of first-degree murder and received the mandatory sentence of life in prison without the possibility of probation or parole.

17. Case Studies Defendant 3 On November 27, 1978, in San Francisco, Dan White climbed through a basement window in City Hall and walked upstairs to Mayor George Moscone's office and fatally wounded the mayor with four gunshots. White quickly reloaded, walked down the hall to the office of Harvey Milk, and killed him with five gunshots. In White's trial, his defense attorneys stated that he was suffering from “diminished capacity.” White's lawyers argued that he suffered from depression and was therefore incapable of any premeditation. Psychiatrist Martin Blinder testified that White was addicted to junk food and that too much sugar could have had an effect on the brain and worsened White's depression. The jury found White guilty of the lesser charge of voluntary manslaughter and sentenced him to six years. In 1982, California voters approved a proposition to abolish the “diminished capacity” defense. Dan White served his time, was paroled in 1985, and took his own life later that year.

18. Discussion What is the role of the psychologist or neuropsychologist in MSO defenses? Would roles change for different defenses (e.g., insanity vs. automatism vs. self-defense)? Would you be comfortable providing expert testimony in such cases?

19. Questions?