Week 11 - Mental illness + Juries

Question 1

Mental disorders associated with criminal conduct

Answer 1

• Schizophrenic disorders
• Paranoid or delusional disorders
• Mood disorders (major depression)
• Antisocial personality disorder

Correlation is stronger, but does not make them prone to committing crime

Question 2

Elements of criminal guilt

Answer 2

Actus Reus: A wrongful deed
- Objective component
- Based on evidence

Mens Rea: Criminal intent
- Subjective component

Question 3

Beyond a reasonable doubt

Answer 3

• Standard of proof required in all criminal proceedings
• It is proof that is just short of absolute certainty
• In evidence, it means fully satisfied, entirely convinced, satisfied to a moral certainty

Question 4

Preponderance of the evidence

Answer 4

• Standard of proof for civil suits, fitness to stand trial, insanity defence
• Proof that one side has more evidence in its favour than the other

Question 5

unfit to stand trial (UST)

Answer 5

Unable, on account of mental disorder, to conduce a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so

Usually on account of mental disorder to…
- Understand the nature or object of the proceedings;
- Understand the possible consequences of the proceedings; or
- Communicate with counsel

Question 6

R. v. Demers and Bill C-10

Answer 6

If an accused is unlikely to ever become fit to stand trial, does not pose a significant threat to the safety of the public, and a stay of proceedings is in the interests of the proper administration of justice, a court now has the authority to order an absolute discharge

Question 7

How is UST assessed?

Answer 7

• Medical practitioners or other professionals designated by the Attorney General
• Fitness Interview Test Revised (FIT-R)
• Develop to meet the fitness criteria outlined in the Canadian Criminal Code
• Semi-structured interview
• Several other fitness instruments, such as the Competency screening test (CST), MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA)

Question 8

Unfit defendants are more likely to have/be

Answer 8

• Psychotic disorders
• Unemployment
• Previous hospitalizations

Question 9

What happens after a finding of unfitness?

Answer 9

• Proceedings are halted until competency is restored
• Detained in a hospital or conditionally discharged
• Reassessment within 45 days

If fit: proceedings resume
If unfit: after 90 days, refer to a review board for assessment and disposition; then re-assessed on a yearly basis; Crown must make a prima facie case every two years or at the request of the defendant

Question 10

Prima facie case

Answer 10

• The crown must prove that there is enough evidence to continue the trial if the suspect is found fit
• If sufficient evidence is no longer available, the case is dropped and the defendant is found not guilty

Question 11

To find a person NCRMD (the McNaughton standard)…

Answer 11

• The defendant must suffer from a mental disorder
• The defendant must fail to appreciate the nature or quality of their act (or omission)
• The person may understand what they are doing but might not believe it to be wrong

Question 12

Issue of insanity

Answer 12

• Few defendant use this defence
• Success rate is around 25%
• By default, unless the defence raises the issue of insanity, a defendant is considered not to suffer from a mental disorder
• The Crown may raise the issue only under 2 situations: following a guilty verdict or if stated by the defence that the defendant has a mental illness
• Must be proven beyond a balance of the probabilities by the party that raised it

Question 13

Possible dispositions following a finding of NCRMD

Answer 13

• Absolute discharge – released without any restrictions
• Conditional discharge – released with conditions
• Sent to psychiatric facility

Question 14

Possible conditions with conditional discharge

Answer 14

• Abstain from using specific drugs
• Must follow treatment plan
• Most follow up with a person

Question 15

Rogers Criminal Responsibility Assessment Scales (R-CRAS)

Answer 15

Scales guide them to assess insanity

• Patient reliability – meant to detect malingering
• Organicity – meant to assess possible organic conditions (e.g., impaired brain functions, mental retardation, etc)
• Psychopathology – meant to assess symptoms of functional disturbance (e.g., anxiety, psychiatric disorder, etc.)
• Cognitive control – presence of hallucinations, delusions, ability to comprehend the criminality of their behaviour
• Behavioural control – assess whether the person lacked behavioural control, was unable to change, monitor their behaviour

Question 16

Automatism

Answer 16

Unconscious, involuntary behaviour such that the person committing the act is not aware of what he or she is doing

R v. Stone (1999): Distinction between non insane and insane automatism
- Non insane: most prove automatism
- Insane: must use the NCRMD defense

Question 17

Intoxication

Answer 17

• Voluntary intoxication is not recognized as a defence for violent crimes (Bill C-72, 1995)
• Often used to mitigate criminal responsibility

Question 18

Sexsomnia

Answer 18

A form of parasomnia defined as engaging in sexual acts while asleep
- More common in men than women
- Family history of parasomnia
- Varied sexual behaviour while sleeping

Question 19

Summary offenses

Answer 19

• tried by judge alone
• Minor offenses (shoplifting): usually won’t be sentenced to more than 6 months or fined more than 2500$

Question 19

Amnesia (or limited ammesia)

Answer 19

• Worries that the individual may be malingering
• Exception when a clear connection can be made between a brain injury and memory loss

Question 19

Misconceptions surrounding the NCRMD defence (Latimer & Lawrence, 2006)

Answer 19

• It is commonly used – in Canada, 2 cases per - 1000 adult criminal cases
• It is usually successful
• Most acquittees commit murder
• It is a loophole
• Defendants are not confined very long
• Defendants are dangerous

Question 20

Indictable offenses

Answer 20

• Less serious indictable offenses, such as theft, fraud, failure to comply with a probation order – tried by judge alone
• Highly serious indictable offenses, such as treason, murder, and piracy – must be tried by judge and jury
• Other indictable offenses (other than those found under the two previous categories), such as robbery, arson, sexual assault with a weapon – the accused can chose to be tried by judge and jury or by judge alone (with or without a preliminary inquiry)

Question 21

Hybrid offenses

Answer 21

• They are a cross between indictable offences and summary offenses (e.g., sexual assault)
• The Crown attorney decides whether to proceed with the case as an indictable offense or a summary offense

Question 22

Jury summons

Answer 22

• A court order that stated a time and place to go for jury duty – does not guarantee you will be selected as a juror
• Jury summons are randomly sent to individuals randomly from a voter’s list
  Ignoring a jury summons = possible legal penalty (fine or jail time)
• Selection of 12 jurors
• The Crown and defence are allowed peremptory challenges (20 for murder trials and 12 for most other crimes) and challenges for cause (need to provide a reason for rejecting a prospective juror)

Question 23

Scientific jury selection

Answer 23

Rejecting prospective jurors who would be unsympathetic to one’s case and accepting those who would be sympathetic based on predetermined characteristics

• Broad-based approach: traits or attitudes
• Case-specific approach: issues and facts of the case

Question 24

Two fundamental characteristics of juries [R v. Sherrat, 1991]

Answer 24

Representativeness: A jury composition that represents the community where the crime occurred

Impartiality: A characteristic of jurors who are unbiased

Question 25

Impartiality

Answer 25

• Must judge the case based solely on the admissible evidence (must set aside any pre-existing biases, prejudices or attitudes)
• Must ignore any information that is not part of the admissible evidence
• Must not have any connection to the defendant

Question 26

Threats to impartiality

Answer 26

• Negative pretrial publicity related to an increase number of guilty verdicts
• Positive pre-trial publicity can bias jurors in favour of a defendant

Question 27

How to keep potential jurors impartial?

Answer 27

Change of venue
- Moving a trial to a community other than the one in which the crime occurred

Adjournment
- Delaying the trial

Challenge for cause
- An option to reject biased jurors

Question 28

Jury Functions

Answer 28

Apply the law, as provided by the judge, to the admissible evidence in the case and render a verdict of guilt or innocence

Others:
- To use the wisdom of 12 to reach a verdict
- To act as the conscience of the community
- To protect against out-of-date laws
- To increase knowledge about the justice system

Question 29

Jury nullification

Answer 29

When the jury ignores the law and bases their verdict on external factors – when the punishment is too harsh, or the law makes no sense

• Dr. Henry Morgentaler: repeatedly acquitted for performing abortions
• Robert Latimer: jury made sentencing appeal to be allowed parole after a year (instead of 10)

Question 30

Juror Behaviour Research

Answer 30

To predict a verdict and identify which variables may affect the verdict

• Post-trial interviews: asking the jurors why they reached the verdict they did (note: not allowed in Canada)
• Archives: reviewing records of trials and police interviews of witnesses
• Simulations: simulating a trial to study the effect of independent variables
• Field studies: using actual jurors while they are serving on jury duty (note: not allowed in Canada)

Question 31

Factors that may influence the ability to disregard inadmissible evidence

Answer 31

Strength of the evidence
- When the evidence weaker, more circumstantial, they are more likely to use it – won’t make the conscious effort to disregard

Reason provided by the judge
- Those who were told to disregard it because it was obtained illegally: more likely to consider the audio than group 2
- Those who were told to disregard it because of poor quality, hard to comprehend: more likely to ignore than group 1

Question 32

Variables to predicting verdicts

Answer 32

• Demographic variables (gender, race, education, Black sheep effect)
• Personality traits (Authoritarianism and dogmatism = pro prosecution)
• Attitudes (pro capital punishment = pro prosecution)
• Defendant characteristics (attractiveness)
• Victim characteristics (when sexual history is introduced, it biases the verdict in sexual assault trials)
• Expert testimony (race/gender, complexity of case, credentials, battered women syndrome)

Question 33

Attractiveness and jury verdicts

Answer 33

Sigall & Ostrove
When crime was unrelated to attractiveness (burglary) = more lenient verdict
When attractiveness was related (charming/manipulation/scamming) = more punishing

Patry
Decide on your own = more likely to punish the plain one
Discuss with jury = more likely to punish attractive one

Question 34

Black Sheep Effect

Answer 34

Racial biases in jury decision making – treating an ingroup member differently than outgroup member

Effect can be moderated by strength of evidence: when evidence of strong, more likely to find ingroup member guilty (to distance themselves from defendant)