Topic 10: The Mentally Disordered Offender Flashcards
What is mental status?
the level of global functioning one is subject to at any given point in time
any Axis I condition can be characterized in terms of disruption to one or more of these areas
What is considered in a mental status examination?
memory
orientation
sensorium: hallucinations
drive
affect
cognition/concentration
delusions
What are two forensic concerns for mental status examination?
fitness to stand trial: the eligibility of an accused to stand trial
criminal responsibility: the culpability of an accused which may be reduced by a mental illness or condition
What is Actus Reus?
Latin for a guilty act
is required for conviction
simply means that the accused did indeed commit the crime
establishing Actus Reus is not the usual domain of psychology
What is Mens Rea?
Latin for a guilty mind
goes to the degree of guilt, and therefore the severity of sanctions, based on level of mindfulness
How does mental fitness relate to actus reus and mens rea?
current mental status is relevant to fitness to stand trial
mental status at the time of offense (MSO) is relevant to mens rea
How is mental status at the time of the offense graded?
purpose: “intended, premeditated”, first degree murder
knowledge: “went on despite…”, second degree murder
recklessness: “ignored”, e.g. high speed driving on bad roads
negligence: “failed to consider…”, e.g. failed due diligence test
What is fitness to stand trial?
one of the most commonly specified question on a forensic OER
not concerned with MSO
lengthy history, but first addressed in British CL in the 17th century
seemed unfair to try someone unable to defend themselves
cases typically involved elective mutism, dissociation, or perhaps psychosis; defendants often refused to enter a plea
What were the three historically accepted explanations for elective mutism or refusing to enter a plea?
“mute by malice” (non-cooperative): tortured until he pleaded
“mute by visitation from God” (genuinely mute due to illness, insanity, etc.): not prosecuted
“mute by visitation from the devil” (tested by water): another form of torture, generally fatal
torture and test by water were intended to separate those who were unwilling to plea from those who were truly unable
In what way are the criteria underlying fitness were similar to those required yo enter into a civil contract?
sufficient age
cognitively adequate
“sane”
What aspects would a mental illness have to impair in a person in order for them to be unfit to stand trial?
understand the role of key courtroom participants: adversarial nature of proceedings
understand that he is charged with a criminal offense: range of outcomes
instruct counsel: participate in a viable defense, challenge a prosecution witness
What conditions are not sufficient enough to limit fitness?
the mere existence of a diagnosis is not sufficient to limit fitness
lack of memory for the events (amnesia) is likewise not enough
there is no requirement that the defendant must act in his own best interest
fitness can change over time: judge can send defendant for treatment to “become fit”
the questions of fitness can be raised at any time in the trial; it doesn’t have to be at the start
there is a presumption of fitness
In what way is the finding of unfitness not made lightly?
a defendant has to be quite impaired to qualify
judges sometimes use the assessment/make fit order as a mechanism to force treatment on person who is clearly in need of services, but not strictly certifiable
since the standard timeframe for a fitness evaluation is 30 days, it makes for a good stall tactic: prosecutors may hope the patient inadvertently confesses
it is relatively rare for a patient to be found unfit
lawyers often confuse fitness questions with MSO and criminal responsibility
lawyers often confuse fitness questions with MSO and criminal responsibility
What happens if a perpetrator is found unfit?
if found unfit, the defendant can be sent to a psychiatric hospital for up to two years
previously indefinite if he didn’t become fit
makes for a lousy defense strategy for minor crimes
Who is the typical unfit patient?
low IQ
no fixed address
lengthy psychiatric history
few supports in the community: glad to be in hospital!
What are areas of law where the competence of an accused may be relevant?
competency to confess
competency to refuse an insanity defense
competency to refuse counsel
fitness to testify
competence to be sentenced and executed (US only)
What is competency to confess?
confessions made by an insane person are admissible unless their mental illness was used by investigators to obtain the confession
What is competency to refuse an insanity defense?
it may be a disadvantage if a findings of guilt carries less onerous consequences
assessment is based on level of insight in the domain
What is competency to refuse counsel?
heavy emphasis on appreciation of the possible legal ramifications
can’t be based on delusional/paranoid beliefs
What is fitness to testify?
understanding of truth versus falsehood
usually about 7 to 10 years of age with children
What is competence to be sentenced and executed?
centered on principle that is wrong to punish a person for reasons he does not comprehend
assumed competent unless shown otherwise: must understand available avenues of appeal
making them competent is an ethical issue
What is MSO and criminal responsibility?
whereas fitness is concerned with present mental state, MSO questions require the psychologist to make inferences about past mental state
MSO impairment is necessary for NCR finding
presumption of sanity
What are the ancient Greek roots of MSO and criminal responsibility?
lunatics and low functioning individuals were not held responsible for their actions if the case could be made that they didn’t know right from wrong
more recently, the goals of deterrence and retribution are seen as inapplicable
What is the public perception of the “insanity” defense?
except in extreme cases, the public is often suspicious of the “insanity” defense
perceived as a legal loophole
the ideas of inapplicable deterrence and retribution are also being questioned
What is the prevalence of the MSO defense?
not widely used, about 1/500 to 1/1000
successful only about 30% of the time
like unfitness, it is not an efficient defense for minor crimes, though it can result in drastically shorter sentences for major crimes, e.g. Dorothy Joudrie
What is the case that led to the creation of the McNaughton rule?
McNaughton wanted to kill PM Robert Peel but shot his secretary Edward Drummond instead, believing him to be Peel
“Tories… have compelled me to do this. They follow me persecute me, wherever I go, and have entirely destroyed my peace of mind.”
no expressions of remorse
notice that the matter of mistaken identity is legally irrelevant here
since self-defense is permissible, and McNaughton believed his life to be in peril, the “wrong” aspect is absent
What is the McNaughton rule?
the defendant knew what he was doing, and knew that it was wrong/potentially harmful
“to establish a defense on the ground of insanity it must be clearly proved, that, at the time of committing the act, the party accused was laboring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong”
seen as overly rigorous; applicable only to extremely impaired individuals
Daniel McNaughton was never tried; McNaughton rules formulated in response to this
What is the Durham rule?
replaced McNaughton rule
the crime was a product of a mental defect or disease
crumbled under interpretation of antisocial personality as a mental disorder
What is the American Law Institute (ALI) test?
defendant failed to appreciate the wrongfulness of the act, or could not conform his behavior to law as a result of a mental illness or defect
specifically excludes APD/psychopathy
substantial but not total impairment needs to be shown
in the US, burden on proof lies with either prosecution or defense, depending on the state
in Alberta, the question can be raised by either side, and expert evidence is called before the Judge makes the finding
What is the Canadian Criminal Code (section 16)?
“No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”
two-part test: mental illness + non-appreciation
requires “expert knowledge” of psychopathology, cognitive issues, malingering, etc.
How does the R. v. Leary (SCC 1978) case relate to intoxication as a defense?
self-induced intoxication is not a defense in matters of general intent
e.g. you meant to punch someone, but not specifically to kill them in so doing
How does the R. v. Daviault (1993) case relate to intoxication as a defense?
if you are so extremely intoxicated, to the point of being like an “automaton”, Leary does not apply
How does the Sec 33.1 CCC relate to intoxication as a defense?
not part of the mental health section
provides that self-induced intoxication is not a viable defense in cases with an element of assault
How does the R. v. Bouchard-Lebrun 2011 SCC case relate to intoxication as a defense?
brutally assaulted two people while in psychotic condition caused by drugs he had taken
on appeal argued that his intoxication should be considered a psychosis under Sec 16
the appeal was denied: “a malfunctioning of mind results exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense
In what way is the voluntariness of crime difficult to assess based on the existing science?
the Ontario Court of Appeal ruled (R. v. Sullivan, 2020) that s. 33.1 was unconstitutional and therefore of no force or effect in that province
that law contravened “virtually all the criminal law principles that the law relies upon to protect the morally innocent, including the venerable presumption of innocence”
What is the Charter basis of legal challenge in Section 33.1 of the criminal code?
prohibits the use of “non-mental disorder automatism” as a defense where the state of automatism is self-induced by voluntary intoxication and the offence charged includes an element of assault or violence
What is the Charter basis of legal challenge in Section 1 of the Charter?
permits limits to be placed on guaranteed rights and freedoms as long as they can be “demonstrably justified in a free and democratic society”
What is the Charter basis of legal challenge in Section 7 of the Charter?
protects an individual’s right to life, liberty, and security of the person and the right not to be deprived thereof “except in accordance with the principles of fundamental justice”
What is the Charter basis of legal challenge in Section 11(d) of the Charter?
enshrines the right to be presumed innocent until proven guilty
in other words, Section 33.1 would place the onus of proof on the accused person, which is unconstitutional
Why is a defense of “temporary insanity” essentially unavailable?
a defense of “temporary insanity” is likewise essentially unavailable because the defense has to show the disorder is of a chronic and persistent nature
automatism defenses are rare exceptions because they neutralize mens rea
unlikely to be successful unless there is evidence the defendant sought treatment for the condition, e.g., post-concussional state, epilepsy, sleepwalking, “battered wife syndrome”, involuntary intoxication
reason: you would be aware of these factors and are responsible to mitigate them
What about other types of automatism?
if successful, an automatism defense is great because you don’t wind up in a psychiatric hospital, and are not found guilty
e.g., certain extreme cases of PTSD
What happens if you’re found not criminally responsible?
come under jurisdiction of Alberta BOR
release tends to be slow and gradual after several hearings where you are retained on full warrants
not a true court, but proceedings are highly similar: judge, lay person(s), psychiatrist(s), Crown, defense, treatment team, patient, forensic director
What use can a lawyer make of mens rea in the absence of insanity?
diminished capacity
relevant to cases where specific intent (versus general intent) is at issue
may result in conviction of a lesser charge, e.g., manslaughter instead of first degree murder
increasingly, some courts are restricting psychologists’ testimony to matter of capacity of the accused to form criminal intent, not the criminal intent itself
reasonable in view of the difficulty of MSO assessments
questions of a defendant’s character may also be raised since even an insane individual may deliberately commit a crime quite apart from his illness
in this case, an NCR defense will not be available
the guilty but mentally ill (GBMI) category exists in the US, but not in Canada
What are other disorders that have attracted NCR defenses?
XYY syndrome (e.g., Richard Speck)
hypoglycemia (the “twinkie defense”)
posthypnotic states
dissociative states: not viable for outgoing, sociable, low-anxiety individuals; better for anxious, neurotic, self-centered, immature types
PTSD
PMS
What is MSO assessment?
there are a few reasonably good tools available, such as the Rodgers Criminal Responsibility Assessment Scale (RCRAS)
typically based on collateral as well as clinical information
best approach is arguably to compare claims of impairment to acts performed, and reported symptoms and signs to known disorders
consistency is difficult to maintain over time in cases of malingering
