After his recent effort on the criminal mind Minds on Trial: Great Cases in Law and Psychology (co-authored with Joseph T. McCann), Charles Patrick Ewing is at it again with "Insanity: Murder, Madness, and the Law." Ewing is a fantastic writer with an energetic and agile mind and I highly recommend his latest work.In Ewing's latest work, he uses 10 case studies in which the insanity defense was litigated.



The insanity defense has had a long and varied history during its development in the common law. Common to all crimes is the element of intent. A necessary component to intent is volition. And necessary to volition is mens rea. The Latin phrase Mens rea literally translates as "evil mind" but it has also been interpreted as a guilty mind, evil intent or criminal intent. The development of the mens rea concept can be traced back to medieval jurists: without criminal intent, there can be no moral blameworthiness, crime, or punishment.



Though evidence of mental illness was allowed as evidence to demonstrate that the accused was incapable of forming criminal intent, it was not until M'Naughton in the 19th Century that insanity was first recognized as an affirmative defense. The M'Naughten rule stated:

To establish a defense on the ground of insanity, it must be clearly proven that, at the time of the committing of the act, the party accused was labouring under such a defective 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 what he was doing was wrong.



Another test, the "irresistible impulse" test broadened the scope of the M'Naughton "right or wrong," test. The "irresistible impulse" test includes those who knew their actions were wrong, but who, as a result of a "disease of the mind" were unable to exercise control over their actions.



The American Law Institute's Model Penal Code test for insanity is found in Section 4.01, Mental Disease or Defect Excluding Responsibility:

(1) A person is not responsible for criminal conduct of at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to coform his conduct to the requirements of law.

(2) The terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial behavior.



The ALI test represents a combination of the M'Naughton test and the "irresistible impulse test:"

3. The draft accepts the view that any effort to exclude the nondeterrables from strictly penal sanctions must take into account of the impairment of volitional capacity no less than of impairment of cognition; and that this result should be achieved directly in formulation of the test, rather than left to mitigation in the application of the M'Naughton. It also accepts the criticism of the "irresistible impulse" formulation as inept in so far as it may be impliedly restricted to sudden, spontaneous acts as distinguished from insane propulsions that are accompanied by brooding or reflection.



Both the main formulation and alternative (a) deem the proper question on this branch of the inquiry to be whether the defendant is without capacity to conform his conduct to the requirements of law...



Additionally, the M'Naughton test and the "irresistible impulse" test required complete impairment, i.e. "the actor must not know." The ALI test rejects complete cognitive impairment and, instead, favors a "substantial" impairment. "Substantial" is an ill-defined term and some states that employ the ALI test have dropped the word substantial.



Embedded in this nation's jurisprudence is the fundamental principle that one who lacks the requisite criminal state of mind may not be convicted or punished. Since this principle is fundamental, it would violate the Due Process clause of the Fourteenth Amendment (Fifth Amendment for Federal cases) to convict an individual who did not have the requisite criminal state of mind. With that said, however, the Supreme Court has repeatedly refused to endorse one particular test for insanity. See Leland v. Oregon, 343 U.S. 790. With that said, some states adhere to M'Naughton, some to the "irresistible impulse" test, some to the ALI formulation, New Hampshire follows the Durham rule and explicitly rejected by the ALI and three states, Utah, Montana, and Idaho have statutorily abolished insanity as an affirmative defense.



The three states that have abolished the insanity defense still allow the admission of evidence to demonstrate that the accused was incapable of forming the requisite criminal intent on the theory that, at all times, the prosecution bears the burden of proving all elements of the crime and to prove them beyond a reasonable doubt. If the accused creates reasonable doubt by introducing evidence to show that he was unable to form intent, then one element of the crime, namely intent, is not proven.



The question on whether the Constitution mandates a full-blown insanity defense or whether it merely mandates that one who cannot form the requisite criminal intent cannot be punished. The Supreme Court's decision in Leland not to mandate one constitutional test for insanity bears some analysis. If the Court refuses to formulate some test for insanity, it is something left to the Several States. However, the adoption of different tests by the states means that a criminal defendant pleading the insanity defense in one state may achieve a different result than the criminal defendant pleading the insanity defense in another state than the criminal defendant who cannot plead insanity as a affirmative defense in Utah, Idaho, or Montana. If the Court's ruling permits different results on insanity, then, one would intuit that the insanity defense is not mandated by the Constitution and instead, the test adopted by a state must ensure that a criminal defendant who cannot form the requisite criminal intent is not convicted.



Ewing's selection of cases demonstrate that the use of the insanity defense is rare in criminal trials and rarely successful when used. In one particular case, that of Eric Smith (the 13 year old boy who murdered a 4 year old boy), Ewing relishes the irony of the prosecutor's insistence on prosecuting Smith as an adult for murder rather (in which Smith received a sentence of 9 years to life and presently eligible for parole) rather than concede the Defense contention that he was insane (and thus subject to a likely lifetime confinement in a hospital).



A few of Ewing's biases come out in the text, including:

1) Adversarial science - Ewing eschews the scientific expert (psychological included) only testifies for one side because it betrays a lack of objectivity



2.) "Mumbo-jumbo" - Ewing also eschews expert testimony which is not easily consumed by the jury. After all, what is the point of expert testimony (the purpose of which is to AID the trier of fact) if the trier of fact (i.e. the jury) does not understand it. Ewing uses the Jack Ruby case as a great example.



3.) Scientific over (and under) reaching - Finally, Ewing has a a bias against the over (and under) reaching expert witness. Ewing thinks the under reaching expert is worse than a throw-away witness and demonstrates how the Andrea Yates trial serves as a cautionary tale in expert over reaching.