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Law and Psychology
Villanova University School of Law
Pressman, Mark R.

Law and Psychology Outline – Pressman–Spring ‘12

I. Insanity

a. Intro

i. DSM IV TR handbook: psychological document reflecting general consensus on different disorders

1. Most often not consistent w/ legal concepts

2. Clinical diagnosis is usually not sufficient for legal purposes

3. Behavioral science utilizes a relativistic approach to human actions and tends to recognize gradations of conduct

a. Criminal law on other hand must ultimately reduce analysis to black or white, guilty or innocent

ii. Types of delusional disorder:

1. Erotomanic

a. Delusion that another person, usually of higher status, is in love w/ individual

2. Grandiose

a. Delusions of inflated worth, power, knowledge, identity or special relationship to a deity or famous person

3. Jealous

a. Delusions that individuals sexual partner is unfaithful

4. Persecutory

a. Person (or someone person is close to) is being malevolently treated in someway

5. Somatic

a. Delusion that person has some physical defect or general medical condition

iii. Insanity is a legal term, not psychological

1. Special defense in criminal law excusing D from criminal responsibility

2. Two Prongs:

a. Cognitive – do they know right from wrong?

b. Volitional – knows right from wrong but irresistible impulse; can person control himself?

3. Legal concepts

a. Free will & individual responsibility (at conscious level)

b. Intent

c. mental competence – two dimensions: sane or insane

d. Vocab:

i. Insanity

ii. diminished capacity

4. Psychological concepts (extensive vocab; no set term)

a. Assumption of determinism

b. Involves understanding how the brain works

iv. Insanity defense: rarely used

1. Any serious felony can raise insanity defense

2. 4 states do not have an insanity defense

3. Average time is 5 yrs in hospital but no limit to commitment period

v. 19th Century View:

1. “mental disorder” used as concept of consciousness and behavior no longer used b/c clear that all psychiatric disorders originate in some brain malfunction

2. “complete madness” evolved into “Wild Beast” test: insanity defense available if deprived of understanding and memory so as not to know what he was doing, no more than an infant, a brute, or a “wild beast”

3. Edward Oxford: tried to assassinate Queen and Prince Albert. Acquitted by reason of mental illness

a. Public response: disagreed w/ Oxford “getting off” and thought knowledge that men will be protected by acquittal will encourage commitment of desperate acts while certainty that they will not escape punishment will terrify them into a peaceful attitude towards others

b. Tests

i. M’Naughten (1843)

1. D attempted to assassinate President; had long history of erratic behavior but also showed evidence of planning/intent

a. Defense: behavior changed as result of delusions and irresistible impulse focus

2. Acquittal verdict based on volitional prong (knew it was wrong but couldn’t control actions)

3. Reviewed by House of Lord’s who determined volitional prong no longer accepted and changed law to using cognitive prong

4. RULE: every man is presumed sane. Must prove defect, disease prevented him from knowing what he was doing was wrong (PA uses this rule*)

a. Intent was to abolish irresistible impulse defense and limit insanity defense to cognitive insanity à purely cognitive “right or wrong” test

b. Today: nature and quality of the act + disease of the mind

c. Doesn’t have to be mental disorder, can be: epilepsy, concussion, diabetes, hypoglycemia, etc.

5. Criticisms:

a. what constitutes D’s knowledge?

b. Knowledge that criminal acts were wrong and knowledge that laws exist prohibiting them?

c. Concentration on D’s cognitive abilities

ii. Irresistible Impulse

1. Form of insanity defense where D knows that what he is doing is wrong but cannot resist the urge to commit the crime

2. Parsons v. State (1887 AL SCt): alleged crime so connected w/ mental disease as to have been the product of it solely

a. Subject to duress of mental duress that didn’t have power to resist or choose btwn right and wrong

b. Free agency was at the time destroyed

3. Broader concept in response to resulting rule from M’Naughten

a. Expansion intended to bring back volitional prong

4. Criticisms: insanity definition too broad, failing to take into account the impossibility of determining which acts were uncontrollable rather than merely uncontrolled

a. Easier to fake insanity under this

b. Some say too narrow b/c excludes everything other than volitional aspect

iii. “Durham Rule” or Product Test

1. Durham v. US (1954): D is not criminally responsible if unlawful act is product of mental disease or defect (super broad)

2. Seen as simplifying M’Naughten and Irresistible Impulse by making insanity and its relation to the crime a matter of objective diagnosis

3. Criticisms:

a. no real definition of mental disease/defect

b. Psychiatrists permitted to contribute too much to judicial determination

4. Only maintained by NH; explicitly rejected in 22 states


1. Mental disease/defect must be from medical diagnosis

2. 2 prongs: cognitive and volitional (expansion including both; adopted in more than ½ the states and all but one fed circuit)

a. “as a result of mental disease or defect, D lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law”

3. incorporated all 3 predecessors

a. knowledge of right and wrong (M’Naughten)

b. cannot conform conduct (irresistible impulse)

c. as a result of mental disease (Durham)

4. 4 different levels of mental state:

a. subjective – specific intent

i. purpose

ii. knowledge

b. objective/general intent – reasonable person would think

i. recklessness

ii. negligence

c. Application

i. US v. Hinckley (1982): D tried to assassinate Reagan

1. Evidence in favor of insanity:

a. delusions (Jodie Foster/Taxi Driver obsession)

b. couldn’t apply “murder is bad” b/c too worried about impressing Jodie Foster

c. years of disease development culminating in event

d. lost all contact w/ reality

2. Evidence against insanity:

a. Stalking and planning (hallow point bullets); waited for best shot

b. Decision making ability is intact

c. In past, conformed his behavior

d. Concealed weapon (most sophisticated cognitive test*)

3. Held: ALI standard used and acquitted by reason of insanity

4. One of 1st trials where neuro-imaging of brain was admitted as evidence

5. Consequences:

a. 3 state drop insanity defense entirely (now 4: MT, ID, UT, KS)

b. replaced ALI w/ M’Naughten

c. shifts BOP from state to defense to prove mental illness (clear and convincing evid or preponderance)

d. adopts “guilty but mentally ill” defense

e. commitment and release procedures changed

f. federal courts shift from ALI to new law eliminating irresistible impulse test

g. Insanity Defense Reform Act 1984: Intended to abolish irresistible impulse test from fed courts by deleting volitional prong

i. BOP on d

of severe mental defect similar to that required by insanity defenses

5. Experts can describe behavior as abnormal but cannot put diagnosis on that abnormal behavior

6. Symptoms rendering D incapable of standing trial cannot be used as defense in trial

vii. In AZ, only viable plea is guilty but insane which means D still goes to jail but get treatment while there

1. When stop being insane, transferred from psych unit to jail cell

2. Extreme example of limitations on law and insanity defenses

3. Seems like a fake mental health defense b/c nothing is really shortened but it sounds like insanity

4. Demonstrates legislature’s “biblical” response to criminal behavior

d. Affirmative Defenses

i. Used when D admits he did it and knew what he was doing

ii. prosecution is proving case w/ regard to actus and mens but there is some justification or mitigating factor that can result in acquittal or reduction of charges

iii. Examples:

1. Extreme Emotional Distress: don’t rise to level of insanity

2. Provocation: imperfect self-defense; reasonable person standard

a. Look to time gap btwn provocation and act

b. Comes about when serious force agst D, serious assault, mutual combat, discovery of adultery

3. Duress: resulting from unlawful threat causing D to believe violation of criminal law is req’d to avoid death/bodily injury

4. Other MSO: epilepsy, hypoglycemia, dissociative states, PTSD and impulse disorders (pyromania, pathological gambling)

5. Novel MSO: rap lyrics, twinkie defense, TV intoxication, brainwashing (Patty Hearst), battered children, PMS, black rage, coercive hypnosis, raging hormones

a. Mitigating, not exculpatory

III. Civil Commitment/Assessment of Danger

a. Civil commitment = state sanctioned and involuntary hospitalization, usually due to self-harming or dangerous tendencies

i. Loss of choice of where you want to be for purposes of treatment, not punishment

b. Criteria for commitment

i. Every state has statute on involuntary commitment

1. Common element’s of state statutes:

a. mental illness/disease

i. dementia/addiction doesn’t usually count

b. dangerousness either to self/others/property

c. inability to care for oneself

d. need for treatment

e. least restrictive alternative – outpatient commitment

2. AZ: persistently and acutely mentally disabled

3. HI: “obviously mentally ill”

4. PA: disorders listed in DSM provided however that mental retardation, alcoholism, drug dependence and senility do not in and of themselves constitute mental illness (presence does not preclude mental illness)

a. PA 5100.84 F. Persons who may be subject to involuntary emergency examination and treatment

ii. DE: all 1 hearing/proceeding to determine if involuntarily medicating is appropriate

iii. NY: 2 separate hearings. Can be civilly committed to hospital but is able to refuse medication