Meeting the Insanity Defense Thomas A

Journal of Criminal Law and Criminology Volume 51 Article 2 Issue 3 September-October Fall 1960 Meeting the Insanity Defense Thomas A. Flannery Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Thomas A. Flannery, Meeting the Insanity Defense, 51 J. Crim. L. Criminology & Police Sci. 309 (1960-1961) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. MEETING THE INSANITY DEFENSE THOMAS A. FLANNERY* The author has been an Assistant United States Attorney for the District of Columbia since 1950. During that time, he has prosecuted over 300 jury cases including many notable homicides involving the defense of insanity. Insanity is frequently a defense in the trial of crimes carrying severe penalties. In this article, Mr. Flannery contends that although this defense is often meritorious, it is also sometimes abused. The author then directs his attention to the problems which arise in the prosecution of those cases where there is genuine disagreement as to the defendant's mental condition or where the defense of insanity actually appears to be spurious. In that connection, he offers a number of suggestions with respect to the timing and thoroughness of the psychiatric examination of the defendant, the problem of recognizing and meeting a case of "prison psychosis," the use of lay witnesses, and the proper formulation and utilization of hypothetical questions. Mr Flannery also sets forth a series of specific questions which he has found to be effective in the cross examination of psychiatrists testifying for the defense. This article is substantially based upon lectures on the insanity defense delivered by the author at the 1959 and 1960 Northwestern University Short Courses for Prosecuting Attorneys.-EDITOR. Insanity as a defense in criminal cases is fre- or another in its history has employed practically quently used and sometimes abused. The fre- all of these different tests, I will advert briefly to quency of its use as a defense in criminal cases the history of the insanity law in the District of seems to rise almost in direct proportion to the Columbia for the purpose of explaining the differ- severity of the punishment; it is seldom used in ences in the several tests currently being used. the less serious felony or misdemeanor cases where Until July 1, 1954, the test of legal insanity in there is no possibility of the imposition of the the District of Columbia had been the right and death penalty or a long term of imprisonment. wrong test supplemented by the irresistible im- Although the sole purpose of this article is to pulse test. The rationality test, or right and suggest certain procedures which the prosecutor wrong test, may be traced back to the Roman may follow to counteract this defense when it is Law, where it was believed that the insane lacked interposed in a criminal case, it seems appropriate free will, and ultimately to the Greek philosophers at the outset to refer to the various definitions of Plato and Aristotle. In the middle of the 19th insanity used throughout the United States under Century the House of Lords in the famous Mc- which one may be excused from criminal responsi- Naghten2 case restated this test in a form which bility?1 Since the District of Columbia at one time since has been followed not only in England but * The views and opinions expressed herein are solely also in most American jurisdictions. In the Mc- the writer's based on his personal experience in handling Naghten case it was stated that: criminal prosecutions. I See A.L.I. MODEL PENAL CODE, Appendix A § 4.01, "The jurors ought to be told in all cases that at 161 (Tent. Draft No. 4, 1955). every man is presumed to be sane and to possess a Right-wrong test. 31 States, and probably one additional state. sufficient degree of reason to be responsible for Arizona, California, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Minne- sas, Colorado, Connecticut, Delaware, Indiana, Ken- sota, Mississippi, Missouri, Nebraska, Nevada, New tucky, Massachusetts, Michigan, New Mexico, Utah, Jersey, New York, North Carolina, North Dakota, Vermont, Virginia, and Wyoming; Georgia (delusional Ohio, Oklahoma, Oregon, Pennsylvania, South Caro- impulse). lina, South Dakota, Tennessee, Texas, Washington, Prodwt of mental disease or defect test. West Virginia, Wisconsin, and probably Rhode Island. 1 State (New Hampshire) and the District of Co- In Maine and West Virginia the test apparently is in- lumbia. terpreted to require a certain capacity for control as Test not dear. well as cognition. 1 State (Montana). Failure to meet requirements of Right-wrong, irresistibleimpulse test. the right-wrong, irresistible impulse test seems ground 14 States, the federal jurisdiction, U.S. Army, and 1 for acquittal, and probably persons incapable of form- State with delusional impulse test. ing a criminal intent are also excused. Federal jurisdiction, U.S. Army, Alabama, Arkan- 28 Eng. Rep. 718 (1843). THOMAS A. FLANNERY [Vol. 51 his crimes until the contrary be proved to their caused by mental disease or defect.- The terms satisfaction; and that to establish a defense on the mental disease and defect encompass a variety of grounds of insanity it must be clearly proved that mental conditions.' at the time of the committing of the act the party In certain cases it is now possible for even the accused was laboring under such a defect of reason psychopath or sociopath to win an acquittal by from disease of the mind as not to know the nature reason of insanity since many psychiatrists believe and quality of what he was doing or if he did know that such an individual suffers from a mental it that he did not know he was doing what was disease.7 In the District of Columbia once a de- wrong." fendant has introduced some evidence of insanity In 1929, in the Smith' case, the irresistible im- which is sufficient to overcome the presumption of pulse test was added as a supplementary test for sanity, the Government must then prove sanity at determining criminal responsibility in the District the time of the crime beyond a reasonable doubt. of Columbia. In Smith it was held that the mere Moreover it has been held that where the evidence ability to distinguish between right and wrong of insanity is convincing and the Government has was no longer the correct test where the defense been unable to produce substantial evidence of the of insanity was interposed. In this case the court defendant's sanity at the time of the crime, the said: court must take the case away from the jury and ".... the accused must be capable not only of direct a verdict of not guilty by reason of insanity.8 distinguishing between right and wrong but that Although its adherents have vigorously sought he was not impelled to do the act by an irresistible to have the Durham Rule adopted in other juris- impulse which means before it will justify a verdict dictions they have been singularly unsuccessful; of acquittal that his reasoning powers were so far the overwhelming majority of jurisdictions appear dethroned by his diseased mental condition as to to take the view, at this time, that those who have deprive him of the will power to resist the insane cognition of the nature.and quality of a deliberate impulse to perpetrate the deed, though knowing criminal act should be held accountable and it to be wrong." responsible in the eyes of the law.9 The Durham 4 In July, 1954, in the now renowned Durham 5' When a defendant has been found not guilty by case, the United States Court of Appeals for the reason of insanity, the District of Columbia Code pro- vides that he shall remain in a mental institution until District of Columbia handed down a new rule on the Superintendent certifies that he has recovered his insanity which in effect superseded the right and sanity and is no longer dangerous. D. C. CODE, tit. 24, wrong and irresistible impulse tests. Simply stated §301. 6In defining disease and defect in the Durham case, this new test held that "an accused is not crim- the court said: "We use 'disease' in the sense of a condi- inally responsible if his unlawful act was the prod- tion which is considered capable of either improving or deteriorating. We use 'defect' in the sense of a condition uct of mental disease or defect." Actually the which is not considered capable of either improving or so called Durham rule is merely a restatement of deteriorating and which may be either congenital, or 5 the result of injury, or the residual effect of a physical the definition of insanity laid down in the Pike or mental disease." case decided in New Hampshire in 1869. Under 7Blocker v. United States - F.2d -, decided by United States Court of Appeals for District of this rule it is now possible for a defendant suffering Columbia on June 25, 1959, No. 14274; Overholser v. from a mental disease or defect to win an acquittal Leach, 257 F.2d 667 (D. C. Cir. 1958). 8 Douglas by reason of insanity despite the fact that he knew v. United States, 239 F.2d 52 (D.C. Cir. 1956); Wright v. United States, 250 F.2d 4 (D.C.

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