Topic 10: The Mentally Disordered Offender

Question 1

What is mental status?

Answer 1

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

Question 2

What is considered in a mental status examination?

Answer 2

memory
orientation
sensorium: hallucinations
drive
affect
cognition/concentration
delusions

Question 3

What are two forensic concerns for mental status examination?

Answer 3

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

Question 4

What is Actus Reus?

Answer 4

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

Question 5

What is Mens Rea?

Answer 5

Latin for a guilty mind

goes to the degree of guilt, and therefore the severity of sanctions, based on level of mindfulness

Question 6

How does mental fitness relate to actus reus and mens rea?

Answer 6

current mental status is relevant to fitness to stand trial

mental status at the time of offense (MSO) is relevant to mens rea

Question 7

How is mental status at the time of the offense graded?

Answer 7

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

Question 8

What is fitness to stand trial?

Answer 8

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

Question 9

What were the three historically accepted explanations for elective mutism or refusing to enter a plea?

Answer 9

“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

Question 10

In what way are the criteria underlying fitness were similar to those required yo enter into a civil contract?

Answer 10

sufficient age
cognitively adequate
“sane”

Question 11

What aspects would a mental illness have to impair in a person in order for them to be unfit to stand trial?

Answer 11

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

Question 12

What conditions are not sufficient enough to limit fitness?

Answer 12

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

Question 13

In what way is the finding of unfitness not made lightly?

Answer 13

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

Question 14

What happens if a perpetrator is found unfit?

Answer 14

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

Question 15

Who is the typical unfit patient?

Answer 15

low IQ

no fixed address

lengthy psychiatric history

few supports in the community: glad to be in hospital!

Question 16

What are areas of law where the competence of an accused may be relevant?

Answer 16

competency to confess

competency to refuse an insanity defense

competency to refuse counsel

fitness to testify

competence to be sentenced and executed (US only)

Question 17

What is competency to confess?

Answer 17

confessions made by an insane person are admissible unless their mental illness was used by investigators to obtain the confession

Question 18

What is competency to refuse an insanity defense?

Answer 18

it may be a disadvantage if a findings of guilt carries less onerous consequences

assessment is based on level of insight in the domain

Question 19

What is competency to refuse counsel?

Answer 19

heavy emphasis on appreciation of the possible legal ramifications

can’t be based on delusional/paranoid beliefs

Question 20

What is fitness to testify?

Answer 20

understanding of truth versus falsehood

usually about 7 to 10 years of age with children

Question 21

What is competence to be sentenced and executed?

Answer 21

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

Question 22

What is MSO and criminal responsibility?

Answer 22

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

Question 23

What are the ancient Greek roots of MSO and criminal responsibility?

Answer 23

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

Question 24

What is the public perception of the “insanity” defense?

Answer 24

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

Question 25

What is the prevalence of the MSO defense?

Answer 25

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

Question 26

What is the case that led to the creation of the McNaughton rule?

Answer 26

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

Question 27

What is the McNaughton rule?

Answer 27

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

Question 28

What is the Durham rule?

Answer 28

replaced McNaughton rule the crime was a product of a mental defect or disease crumbled under interpretation of antisocial personality as a mental disorder

Question 29

What is the American Law Institute (ALI) test?

Answer 29

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

Question 30

What is the Canadian Criminal Code (section 16)?

Answer 30

"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.

Question 31

How does the R. v. Leary (SCC 1978) case relate to intoxication as a defense?

Answer 31

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

Question 32

How does the R. v. Daviault (1993) case relate to intoxication as a defense?

Answer 32

if you are so extremely intoxicated, to the point of being like an "automaton", Leary does not apply

Question 33

How does the Sec 33.1 CCC relate to intoxication as a defense?

Answer 33

not part of the mental health section provides that self-induced intoxication is not a viable defense in cases with an element of assault

Question 34

How does the R. v. Bouchard-Lebrun 2011 SCC case relate to intoxication as a defense?

Answer 34

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

Question 35

In what way is the voluntariness of crime difficult to assess based on the existing science?

Answer 35

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"

Question 36

What is the Charter basis of legal challenge in Section 33.1 of the criminal code?

Answer 36

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

Question 37

What is the Charter basis of legal challenge in Section 1 of the Charter?

Answer 37

permits limits to be placed on guaranteed rights and freedoms as long as they can be "demonstrably justified in a free and democratic society"

Question 38

What is the Charter basis of legal challenge in Section 7 of the Charter?

Answer 38

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"

Question 39

What is the Charter basis of legal challenge in Section 11(d) of the Charter?

Answer 39

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

Question 40

Why is a defense of "temporary insanity" essentially unavailable?

Answer 40

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

Question 41

What about other types of automatism?

Answer 41

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

Question 42

What happens if you're found not criminally responsible?

Answer 42

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

Question 43

What use can a lawyer make of mens rea in the absence of insanity?

Answer 43

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

Question 44

What are other disorders that have attracted NCR defenses?

Answer 44

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

Question 45

What is MSO assessment?

Answer 45

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