| Abstract|| |
For the past 150 years, there is no change in the understanding and knowledge other than autonomy and capacity to choose the right and wrong for criminal liability. The alternative concept that human behavior is the result of an interaction between biological and environmental factors other than free choice failed to impress the criminal justice system because of a direct threat to a society's deep seated need to blame someone than themselves for criminal harms that occur. The insanity defense has a long history, and is evolved after many tests that have been tried and tested. McNaughton's rules stressed on "understandability of right and wrong" and "intellectual" rather than a moral or affective definition dominated in its formulation. Lack of control and irresistible drives or impulses were neglected
Going by the current understanding of neurological evidences of compulsion and lack of impulse control, rationality tests without the inclusion of lack of control, seem to be outdated. Separate "Control determination" than the "Rationality determination" by the jurors may improve the accuracy of Juror's categorizations. There is a suggestion that Relevance ratio is ideal for 'Evidentiary relevance" and there should be a quality control on expert testimonies. With progress in neuroscience, the law may need to abandon or alter some of its current assumptions about the nature of voluntary conduct, which underlies various defenses
Keywords: Insanity defense, Assessment, Clinical application
|How to cite this article:|
Asokan T V. The insanity defense: Related issues. Indian J Psychiatry 2016;58, Suppl S2:191-8
The concept of defense by insanity has existed since ancient Greece and Rome. The first known recognition of insanity as a defense to criminal charges was recorded in a 1581 English legal treatise stating that, "If a madman or a natural fool, or a lunatic in the time of his lunacy" kills someone, they cannot be held accountable. The British courts came up with the "wild beast" test in the 18 th Century, in which defendants were not to be convicted if they understood the crime no better than "an infant, a brute, or a wild beast."
Criminal liability requires proof of three interrelated components as follows:
- Commission of the prohibited conduct specified in the offense (Actus Reus)
- Committed with a particular mental state (Mens Rea)
- Committed without a legal defense.
For the past 150 years, there is no change in the understanding and knowledge other than autonomy and capacity to choose the right and wrong for criminal liability. The alternative concept that human behavior is the result of an interaction between biological and environmental factors other than free choice failed to impress the criminal justice system because of a direct threat to a society's deep seated need to blame someone than themselves for criminal harms that occur. ,
Law's denunciatory and punitive response to a person who is guilty of crime is known as sentence. Individual blameworthiness is often considered, and external circumstances are viewed as mitigating factors while awarding punishment. 
| Defenses|| |
A defense is a plea which is successfully raised will lead to acquittal on criminal charge.
Types of defenses
Failure of proof defenses
Defenses that fail to prove all the central components of Criminal liability.
- Applying force to another person in self-defense
- Actions of insane person.
Diplomatic immunity and statutory time limitations on persecuting the crime.
Exculpatory defenses are further divided into:
Justifications render conduct lawful and so may not be construed as crime. Excuses render the actor's otherwise unlawful conduct not deserving punishment.
Justifications focus on the "legality of the act" and Excuses focus on "blameworthiness of the actor". 
The above concepts are not "airtight compartments" and in some legal milieu (Russia) such subdivisions of exculpatory defenses are not existing. 
Actus Reus comprises the followings:
- An act and/or an omission of a legal duty to act
- An act which is voluntarily committed
- An act which occurs in the prohibited circumstances described in the offense
- Which ends in harm described in offense.
| Defenses negating actus reus|| |
- There is no denial of the offense but there is an argument that the accused had not committed the crime:
- By providing an alibi evidence
- By arguing that the eye witnesses are mistaken and
- By arguing that the eye witnesses are lying.
- Denial of the prescribed harm
- By arguing that the act or omission is not voluntary.
- An act done in an unconscious state or during sleep
| Defenses negating mens rea|| |
There must be a mind at fault to constitute a criminal act. The concurrence of act and guilty mind constitutes a crime. This theory has its basis in the Latin maxim.
"Actus non facit reum nisi mens sit rea" 
The guilty mind includes two broad categories of mental fault:
- Subjective fault
- Objective fault.
| Subjective fault normally includes|| |
The accused knows what he is doing, aware of the consequences of the act he is committing. He means and intends to cause the prohibited harm
The accused foresees the harm as the possible consequence but does not necessarily want the harm to occur. Nonetheless, the accused does the act for another purpose, recognizing that it is possible or probable that the prohibited harm will also occur as a result of his actions. If the harm occurs, it is the result of his reckless nature.
Objective fault does not focus on the accused's knowledge or state of mind, but rather a state of mind that a reasonable person would likely have if he/she engaged in similar conduct in similar circumstances.
Objective fault is frequently referred as "negligence." Serious crimes require subjective fault and less serious crimes require objective fault and that objective fault may be of a lower level than that of criminal negligence.
Ordinary negligence (lack of reasonable care) or diligence may be enough. Mistake or ignorance of the law is no defense to committing a crime. In case of involuntary intoxication, if automatism or unconsciousness occurs, the accused is not criminally liable because Actus Reus of the crime is not voluntary.
If the intoxication is not rendering alteration in the consciousness but the individual is not having the Mens Rea, he may be acquitted. In case of voluntary intoxications rendering the individual criminal conduct involuntary and unintentional, different approaches are adopted by different jurisdictions.
Insanity defense is the single most controversial legal doctrine relating to the mentally ill. All the formulations of the insanity defense require that the impairment claimed in mental functioning being a result of mental disease or defect. Defect is usually understood to refer to mental retardation. Defining disease is problematic. It is clear that in theory, disease is not limited to psychosis. "A mental disease or defect is an abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls".
Mental disease alone does not absolve a defendant from responsibility for his criminal acts. Something more is evident. The term "Insanity" in the law describes a state of nonresponsibility and is not related to the presence or absence of psychosis.
The insanity defense has a long history and is evolved after many tests that have been tried and tested.
| Wild beast test|| |
It was the first test to check insanity that was laid down in the case of Arnold in 1724. Justice Tracy, a 13 th century Judge in King Edward's court, first formulated the foundation of an insanity defense when he instructed the Jury that it must acquit by reason of insanity if it found the defendant to be a madman which he described as "a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or a wild beast, such a one is never the object of punishment."
| Good and evil test|| |
This test was laid down in the case of R vs Madfield. The test laid down in this case is 'the ability to distinguish between good and evil." In this case, the accused was charged for treason for attempting to kill the king. The defense pleaded that he was not able to distinguish between good and evil and "wild beast test" was unreasonable. He was acquitted.
| Other defenses|| |
- Insanity defense (section 84 IPC) which is adopted from McNaughten Rules
- Durham Rules (diminished responsibility)
- American Law Institute test (ALI) (diminished responsibility).
Daniel McNaughton was the son of a Glasgow wood turner. He was harboring a firm suspicion that there was a conspiracy against him, and he perceived harassment by the spies sent by Catholic priests with the help of Jesuits and Tories.
The following was the revelation by McNaughton during interrogation in Bowstreet police station. "The Tories in my native city have compelled me to do this. They followed me to France, into Scotland, and all over to England. In fact, they follow me wherever I go... They have accused me of crimes of which I am not guilty; they do everything in their power to harass and persecute me. In fact they wish to murder me."
The Commissioner of Police was aware of McNaughton's condition for 18 months before the shooting incident. Two years before the shooting incident, McNaughton asked him to put a full stop to the persecution and later reminded him to apply to the Sheriff. His "suspicions" were directed against the Tories, and he decided to kill the Tory Prime Minister Sir Robert Peel.
On 20 th June 1843, Edward Drummond, the Private Secretary of Sir Robert Peel, was coming out of the Prime Minister's residence and McNaughton mistook him for Peel. He followed him out of Whitehall Garden and in Parliament Street; and in front of numerous spectators, he shot him in the back and Edward Drummond died 5 days later.
McNaughton was arrested by a constable who had witnessed the incident and was taken to Bow Street police station. At the inquest in Bow Street, the verdict was willful murder and McNaughton was indicted.
Dr. Edward Thomas Monro in Bethlem Hospital examined McNaughton for the defense at NewGate prison. Sir Alexander Morrison, Dr. A. J. Sutherland (Physician, Sir Luke's Hospital) and Mr. William McClure (Harley Street Surgeon) were present during the examination of McNaughton. During subsequent examinations by Monro, Dr. Hutcheson (Physician to Royal Asylum) and Dr. Crawford (Glasgow) were present. Mr. Aston Key of Guy's Hospital, and Dr. Philips, Surgeon and Lecturer at the West Minister's Hospital, had examined McNaughton and gave evidence at the trial.
Dr. Forbes Benignus Winslow, an authority in insanity defense, was called (He did not examine McNaughton and remained as a spectator throughout the trial - a controversy - and House of Lords questioned him about this.).
During the trial, Alexander Cockburn (counsel for defense) asked Dr. Monro whether the delusions of McNaughton were real or assumed. Dr. Monro confirmed that the delusions were real and considered that the killing was committed under a delusion and McNaughton carried out of an idea which had haunted him for years. All others who gave evidence confirmed that McNaughton was insane. Alexander Cockburn had made extensive and excessive use of Isaac Ray's Treatise on the Medical Jurisprudence of Insanity. Cockburn quoted extensively from the book, which rejected traditional views of the insanity defense based on the defendant's ability to distinguish right from wrong in favor of causation. When Dr. Forbes Benignus Winslow and Dr. Philips (both appeared for the Crown) concurred with the opinions of other doctors called by defense, the case collapsed. Terms such as homicidal monomania and partial delusion were discussed during the trial, and the foreman jury without the retiring jury returned a verdict of insanity.
McNaughton was acquitted of murder; and considering insanity, he was forcibly institutionalized for the rest of his life under Criminal Lunatics Act 1800. He was first remanded to Bethlem Royal Hospital (stayed there for 20 years); and in 1864 he was transferred to Bradmoor Asylum, and he died on May 3, 1865 at the age of 52. The establishment and the press protested the verdict. Queen Victoria was displeased to a greater extent and wrote to Sir Robert Peel for a wider interpretation of the verdict.
On March 6, 1843, there was a discussion in the House of Lords, and Lord Chancellor put five questions to a panel of His Majesty's judges. The five questions were replied on June 19, 1843, and they were construed as McNaughton's rules. 
The followings are the main points of McNaughton's rules:
- Every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his
crimes, until the contrary be proved
- An insane person is punishable "if he knows" at the
time of crime To establish a defense on insanity, the accused, by
defect of reason or disease
- of mind, is not in a position
to know the nature and consequences The insane person must be considered in the same
situation as to responsibility
- as if the facts with respect
to which the delusion exists were real
- It was the jury's role to decide whether the defendant
McNaughton's rules stressed on "understandability of right and wrong" and "intellectual" rather than a moral or affective definition dominated in its formulation. Lack of control and irresistible drives or impulses were neglected. In essence, it was the "test of knowing" or "test of right and wrong." If McNaughton's rules had been applied to McNaughton at the time of trial, he could not have been found guilty on the grounds of insanity. 
The spellings for his name vary in many instances, but hospital records and court documents support the spelling "McNaughton".
Section 84 IPC embodies McNaughton rules as follows:
"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to the law." 
Only legal insanity (mental illness at the time committing the crime) and not medical insanity falls within the purview of section 84 IPC. Unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused and it is sufficient if this plea is established by preponderance of probabilities and not by proof beyond reasonable doubt. Such a plea can be established from the circumstances which preceded, attended and followed the crime.
A dichotomy of section 84 IPC reveals the following ingredients.
- The accused was insane
- He was insane at the time of the crime and not merely before or after the act and
- As a result of unsoundness of mind, the accused was incapable of knowing the nature of act or he was doing what was really wrong or contrary to law.
Irresistible impulses, mental agitation, annoyance, and fury all merely indicate loss of control and are not indicative of unsoundness of mind. Every mild mental aberration is not insanity and the circumstances indicating mere probability of legal insanity cannot however be sufficient to discharge the onus of the accused to establish the plea of insanity. ,
| Assessment of legal insanity|| |
The criminal law asks different questions with reference to assessment of legal insanity.
"Did the defendant 'know' or 'appreciate' that his conduct at the time?"
"Did the defendant 'premeditate' the crime?"
"Was he aware of risks his conduct posed?"
There are two sources of testimonies.
- Lay testimony from the defendant and
- From the Psychiatrist.
The expert's testimony is based on four influences:
- Particular symptomatology
- Presence of legally relevant impairments (the defendant thought that killing was justified)
- Ultimate legal conclusion (the defendant was insane at the time of offence).
[TAG:2]LEGAL PROCEDURE INVOLVING "INSANITY DEFENCE"[/TAG:2]
Sections 328-339 CrPC deal with the procedures of unsoundness of mind committing an offence. Section 333 is concerned with sound mind at the time of enquiry and unsound mind at the time of committing an offence.
| Irresistable impulse test|| |
This test asks the evaluator to determine if the defendant's mental disorder rendered him or her unable to refrain from his or her behavior, regardless of whether the defendant knew the nature and quality of his or her act or could distinguish right from wrong. A major criticism of this test has been the broadness of its scope. In other words, because a defendant did not refrain from a particular criminal behavior, mental health evaluators could use this as evidence that the defendant could not resist his or her impulse, thereby concluding that all criminal behavior not resisted equals insanity. Despite its current unpopularity as a measure of criminal responsibility, this test survives, in part, because both Virginia and New Mexico combine the irresistible impulse test with the McNaughton test
| Durham Rule (Product Test)|| |
DURHAM V. UNITED STATES[TAG:2] 1954)[/TAG:2]
This insanity test derived from a D.C. Circuit case in which Judge Bazelon allowed a finding of insanity if the defendant's unlawful act was a "product of a mental disease or defect." As with the irresistible impulse test, the product test expanded the category of those who were eligible for a finding of insanity and rapidly fell out of favor. It is currently used in only two jurisdictions in the United States: New Hampshire and the Virgin Islands. 
| American law institute model penal code|| |
This test of insanity was developed in 1955 by the ALI when it was formulating the Model Penal Code. This test is stated as follows:
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law (American Law Institute Model Penal Code 1985, ͷ4.01).
This test involves both a cognitive arm ("appreciates the criminality of his conduct") and a volitional arm (ability to conform behavior).
| Guilty but mentally ill|| |
A defendant who receives a guilty but mentally ill (GBMI) verdict is sentenced in the same way as if he were found guilty. The court then determines whether and to what extent he requires treatment for mental illness. When, and if, the defendant is deemed "cured" of his mental illness, he is required to serve out the rest of his sentence, unlike an insanity-defense acquittee who would be released from psychiatric commitment once he is deemed to be no longer dangerous
Critics, including the American Psychiatric Association, claim that the GBMI verdict takes away the hard choices that juries and judges are supposed to make: "While the 'GBMI' category may seem to make juries' jobs easier, it compromises one of our criminal system's most important functions - deciding, through its deliberations, how society defines responsibility. A 'GBMI' plea absolves the judge or jury of this obligation."
Another practical criticism of the GBMI plea is that given the level of mental health resources in the countries' jails and prisons, it is unlikely that a defendant who receives a GBMI verdict will actually receive meaningful treatment while incarcerated. 
| Diminished capacity evaluations|| |
Insanity defense looks for Criminal Responsibility whereas Diminished capacity defense examines whether the defendant had the capacity to form the requisite intent for the crime.
To illustrate the difference, consider the case of Mr. E, a 50-year-old male with schizophrenia who believes that his next-door neighbor is about to start World War III with nuclear weapons because the neighbor's car license plate tag contains the number three. As a result, Mr. E decides that he must kill the neighbor to save the entire planet. He carefully loads his 357 magnum, waits for his neighbor to return home, calmly walks over to his neighbor's house, rings the doorbell, and shoots the neighbor directly in the heart when the neighbor opens the door.
At trial, Mr. E may be found legally insane under the McNoughton rules, if it is proved that his schizophrenia resulted in the belief that his actions were morally right, thereby rendering him unable to distinguish right from wrong. Mr. E, however, may not meet the standard for diminished capacity, despite his mental illness, if it is proved that he purposefully walked over his neighbor's house with a loaded gun with the specific intent to kill the neighbor.
Diminished capacity defenses are focused on the degree, if any, to which a person's mental disorder influenced his/her ability to form the specific intent to commit a crime.
Different jurisdictions differ in the test that they use to determine whether a defendant is not guilty by reason of insanity (NGRI)
- In the UK, insanity is currently decided based on rationality only (Th McNoughton's Rule), so only defendants with rationality defects are excused and whose defense rests on lack of control are deemed ineligible for NGRI.
- In the US, 21 states use McNaughten's rule (based on rationality), 16 states and the district of Columbia use the Model Penal Code (a test based on rationality and lack of control) 8 states and the Federal system follow an adaptation of the Model Penal Code in which the defense is allowed only for "cognitive dysfunction" when the defendant is unable to understand the criminality of his conduct and 6 states have abolished any form insanity defense  in addition, since 1982, 12 states have adopted the "GBMI verdict.
The person would be evaluated and treated before returning to prison to finish the sentence.
| Issues related to current insanity standards|| |
1. Going by the current understanding of neurological evidence of compulsion and lack of impulse control, rationality tests without the inclusion of lack of control, seem to be outdated 
2. Separate "Control determination" than the "Rationality determination" by the jurors may improve the accuracy of Juror's categorizations
3. Relevance ratio is ideal for "Evidentiary relevance"
In case of assessment of "legal insanity," any description of past mental state is closer to a story than a depiction of an observable event. Conclusion about past mental state with available present mental state findings is criticized by some as interpretation of reality rather than identifying objective reality. The difference of past mental status from assessment of conduct can be explained by "Relevance ratio" (a pioneering work by Thomas D. Lyon and Jonathan J. Koeheler). ,
Relevance ratio is the ratio between the proportion of cases in which a symptom is observed in the population of interest and the proportion of cases in which the same symptom is observed in the rest of the population.
For example, 60% of murderers with Schizophrenia suffer from X, Y, and Z symptoms and 20% of schizophrenics without crime history suffer from X, Y, and Z symptoms, and the relevance ratio in this case is 3:1 (60%:20%) meaning that a schizophrenic has these 3 symptoms and it has significant value in the commission of the crime. If relevance ratio is >1, the evidence has some tendency to prove a fact at issue. Lyon and Koeheler argued that the relevance ratio is the most efficient way to think about evidentiary relevance,
4. The second problem is matching the defendant variable. A person with a persecutory delusion commit more crime than the control group and this information tells us very little about whether the former group experience stronger urges or more cognitive impairment at the time of their offence.
Analog research is the most fruitful line of scientific enquiry into past mental state, but it too has significant problems. This research might investigate the extent to which people with psychosis feel "compelled" or are "confused" about reality in noncriminal situations, compared to a matched control population. Admissibility of clinical testimony requires consideration of four issues: (1) Materiality, (2) probative value, (3) helpfulness, and (4) prejudicial impact. It is better to analyze under 1 st and 4 th components of admissibility analysis, namely, Materiality and Prejudicial impact than as an aspect of Probative value.
Psychiatrist's explications about past mental state should be based on the knowledge on research using controlled populations, adequate samples, and meaningful criterion variables. Psychiatric report should have "criterion validity" (those who receive a particular diagnosis have the same traits) and "construct or discriminant validity" (whether a diagnosis avoids significant overlap with other diagnoses).
In Indian scene, the opinion about mental status from the psychiatrist is sought after a long period after the commission of the crime and in this regard, Prof. O. Somasundaram recommended for a mandatory pretrial observation in suspected offences by the mentally ill. 
Updated analyses by Pal Grondahl of Norwegian report system state that the use of screening reports in forensic psychiatric practices seems to be useful for the prosecution authorities as a time and money saving procedure. In the Norwegian legal milieu, screening reports with three options such as (1) recommended, (2) not recommended, and (3) undecided are obtained, but they are not considered as a valid document in the court. The prosecution may ask for a full report which is a valid legal document. The concordance between screening reports and final full reports was 46% for psychosis, 78% for unconsciousness, and 94% for mental retardation.
The screening reports produced false-positive conclusions but not no false-negative conclusions when using conclusions of full reports as gold standard. This implies that the screening reports fulfilled their task as screening device, whose purpose is to detect possible legal insanity by the defendant and advising prosecution authorities. False-positive conclusions must be considered a far better risk for the defendants than the false negative.
5. Lack of control on type of mental disorders that qualify for Insanity defense
In 1992, Grass brothers, Jacob and Jason saw her mother bleeding from stab wounds in the neck and chest. Their father Lloyd Grass was the accused and he pleaded insanity. He was diagnosed as having "Brief Psychotic Disorder brought on by dehydration, diet and marijuana withdrawal. The prosecutor was unable to contradict him and "insanity plea" was accepted.
The Judge entered the finding of "NGRI" and Lloyd Grass was sent to mental hospital. Two weeks later, the same experts who had testified Grass was insane found that his "disorder" had "cleared" without any treatment. Two years later, Grass simply walked away from the hospital. This is an example of failure of legal system to impose any control on the types of mental disorders that qualify for insanity defense
6. Quality standards on expert testimony with Reliability and validity
On March 30, 1982, John W. Hinckley, Jr shot and wounded Ronald Reagan and several other people. He was acquitted on the grounds of insanity with the diagnosis of "Process Schizophrenia"
This diagnosis was refuted by a witness Jules B Gerald, a Professor of Law stating that the diagnosis of "Process Schizophrenia" did not exist in DSM III. 
Another defense Psychiatrist diagnosed Hinckley as "Simple Schizophrenic" but acknowledged that this diagnosis did not meet the criteria of Simple Schizophrenia.
The Hickley's case highlights the law's failure to impose quality standards on expert testimony and there are reliability and validity issues.
The traditional insanity defense uses the term "mental disease or defect" and this refers to medical rather than legal categories. It is not the business of the law to create illnesses or disorders. The insanity defense looks for "nonresposibility" and it does not follow that the law is required to accept for its purposes everything that the medicine calls a "disorder" for different purposes.
Law is concerned with blameworthiness and medicine is concerned with treatment. They are not identical with each other because their "concerns" are different.
With progress in neuroscience, mapping the brain and measuring its activity, the law may need to abandon or alter some of its current assumptions about the nature of voluntary conduct, which underlies various defenses.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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T V Asokan
Prof of Psychiatry, SRM Medical College & Research Institute, Kattankulathu,Kanchipuram District,Tamilnadu
Source of Support: None, Conflict of Interest: None