American College of Forensic Psychology 30 th Annual Symposium March 27-30, 2014 The Westgate Hotel, San Diego. The Insanity Defense and Beyond

Transcription

1 American College of Forensic Psychology 30 th Annual Symposium March 27-30, 2014 The Westgate Hotel, San Diego The Insanity Defense and Beyond Valerie R. McClain, Psy.D. and Elliot Atkins, Ed.D. The focus of this presentation is to provide guidelines by which to navigate through complex challenges in forensic cases involving the insanity defense. Case examples will be used to highlight strategies to successfully utilize the client s life history in providing mitigation while working towards the determination as to whether NGRI is a viable defense. Special emphasis will be placed on unique aspects of the defendant s history including cultural issues, neurological and developmental disorders (including intellectual disability and head injuries), personality disorders and dual diagnosis. Guidelines will be provided to the forensic psychologist in how to provide assistance to legal counsel in case development and working with clients to optimize legal outcomes. Mitigation in both guilt and sentencing phases will be addressed. Learning objective 1: Identify cases in which the insanity defense is a viable alternative as a legal defense based on the defendant s life history and mental health issues at the time of the criminal charges. Learning objective 2: Identify relevant aspects of the defendant s life history which can be used in providing factual support in an NGRI case. Learning objective 3: Understand how to use the defendant s history in meeting the criteria for the insanity defense. Case examples to illustrate: 1. Cultural factors 2. Neuropsychological impairment 3. Intellectual and developmental issues 4. Personality functioning 5. Dual diagnosis and mental illness 1

2 National Use Supreme Court of the United States upheld defense in Clark v Arizona (2006) o Each jurisdiction can choose its own insanity test As of 2006 (Packer, 2009): o 5 states do not have the insanity defense o 26 states and the federal government utilize M Naghten (or some variation) M Naghten 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 to not know the nature and quality of the act he was doing; or, if he did know it that he did not know he was doing what was wrong... and whether the accused at the time of doing the act knew the difference between right and wrong... in respect to the very act with which he is charged. o 3 states use M Naghten with the addition of an irresistible impulse prong o 17 states base their test on the American Law Institute s (ALI) Moral Penal Code A person is not responsible for his criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise anti- social conduct. o New Hampshire uses the Product Test Facts and Statistics (1) Changes to the insanity test used has little effect on insanity defense outcomes (Borum & Fulero, 1999) (2) The insanity defense is rarely formally asserted. a. 1% of cases in multi- state study b. Successful in approximately 15-25% of cases asserted (Callahan, Steadman, McGreevy, & Robbins, 1991) (3) When a defendant is evaluated: a. When evaluated by a forensic examiner to determine mental state at the time of the offense, about 12% of defendants opined to be legally insane (Warren, Murrie, Chauhan, Dietz & Morris, 2004). b. When evaluators disagree, more likely the defense will be unsuccessful c. Supreme Court of the United States in Clark v Arizona (2006) conceptualized forensic examiner testimony into 3 categories: 2

3 i. Observation evidence (an expert's description of a defendant's speech, thought or behaviors which may lend support to the diagnoses). ii. Mental disease evidence (whether at the time of the crime a defendant suffered from a mental disease or defect). iii. Capacity evidence (whether the disease or defect left the defendant incapable of performing a mental process defined as necessary for sanity, such as appreciating the nature and quality of his act or knowing that it was wrong). d. Must be evaluated for malingering (4) Those acquitted NGRI: a. Are almost always hospitalized in a secure setting for an indeterminate period of time (avg 3 years) and are released only when they appear no longer dangerous (Steadman & Braff, 1983) i. Charge effect: those with more serious charged tend to be hospitalized longer (same phenomenon for those defendants found guilty) (Steadman et al, 1993) ii. Defendant found NGRI may spend MORE time in the hospital than would have spent in prison if found guilty iii. Defense attorneys have asked that judges be required to tell jurors that a not guilty by reason of insanity (NGRI) verdict means the defendant will probably be committed to a psychiatric hospital. 1. The Supreme Court has refused to require this instruction see Shannon v. United States (1994) b. These defendants typically: i. have a record of prior arrests or convictions, although this rate does not exceed that of other felons ii. come from lower socioeconomic backgrounds iii. have a prior history of psychiatric hospitalizations iv. have previously been found to be incompetent to stand trial v. (Boehnert, 1989; Cohen, Spodak, Silver & Williams, 1988; Heilbrun, Heilbrun, & Griffin, 1988; Nicholson, Norwood & Enyart, 1991) (5) There is little difference in recidivism rates between those found NGRI and those found guilty (Cohen et al, 1988; Melton et al., 1997) a. Once released, those acquitted NGRI are rearrested at low rates& more likely rehospitalized Interesting Future Directions: Neuroscience and Neuroimagery There is an increase use in criminal trials overall Research is split as to whether the introduction of neuroimagery will bias or mislead the jurors opinions regarding scientific evidence/research Some findings specific to NGRI include: 3

4 o Mock jurors more likely found defendant NGRI when diagnosis supplemented with anatomical brain images (Gurley & Marcus, 2008) o Jurors may give more weight to neuroscience- based evidence than psychological and anecdotal family history evidence. However, the presence of neuroimagery did NOT affect juror NGRI decisions (While the testimony regarding neuroscience was impactful, adding imagery did not increase its affect on jury decision making) Jurors more likely to find defendant NGRI when expert testimony includes neuroscientific testimony Mock jurors report that neuroimagery specifically would be the most helpful evidence, although their decision- making does not appear to be impacted by such (Schweitzer & Saks, 2011) Note: Commentary on the subject does not support the use of abnormal neuroimaging to provide a direct link to behavior, as researchers are at early stages of understanding the relationship between brain activity and mental states related to criminal responsibility (see Moriarty, Langleben, & Provenzale, 2013). Cases where PET scans used during expert testimony of insanity o People v. Weinstein, 591 N.Y.S.2d 715 (N.Y.S.Ct. 1992) plead out o Nong Le v. Barnes, 2012 WL (C.D. Cal. 2012) jury rejected defense References: Borum R, & Fulero S. (1999). Empirical research on the insanity defense and attempted reforms: evidence toward informed policy. Law and Human Behavior, 23(3), Callahan L, Steadman H, McGreevy M, & Robbins P. (1991). The volume and characteristics of insanity defense pleas: An eight- state study. Bulletin of the American Academy of Psychiatry and the Law, 19(4), Clark v Arizona, 548 US 735 (2006). Cunningham, M.D. & Goldstein, A.M. (2003). Handbook of psychology. In A.M. Goldstein (Volume Ed.), I.B. Weiner (ed). Forensic Psychology (Vol. 11). New York: Wiley. Gurley, J.R. & Marcus, D.K. (2008) The effects of neuroimaging and brain injury on insanity defenses. Behavioral Science and the Law 26, Martin, M. (1993) Defending the mentally ill client in criminal matters: Ethics, advocacy and responsibility. University of Toronto Faculty Law Review, 52,

5 Moriarty, J., Langleben, D. D., & Provenzale, J. M. (2013). Brain Trauma, PET Scans and Forensic Complexity. Behavioral Sciences & The Law, 31(6), doi: /bsl Packer, I. K. (2009). Evaluation of Criminal Responsibility. New York: Oxford University Press. Perlin, M.L. (2002) Mental disability law: Civil and criminal (2 nd ed., Vol. 4) Newark, NJ. Shannon v. United States, 512 US 573 (1994). Schweitzer, N. J., & Saks, M. J. (2011). Neuroimage evidence and the insanity defense. Behavioral Sciences and the Law, 29(4), Warren J, Murrie D, Chauhan P, Dietz P, & Morris J. (2004). Opinion formation in evaluating sanity at the time of the offense: An examination of 5,175 pre- trial evaluations. Behavioral Sciences & the Law, 22(2),