Kentucky Law Journal Volume 40 | Issue 3 Article 4 1952 Insanity as a Defense in Criminal Law Robert Hall Smith University of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Criminal Law Commons, and the Criminal Procedure Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Smith, Robert Hall (1952) "Insanity as a Defense in Criminal Law," Kentucky Law Journal: Vol. 40 : Iss. 3 , Article 4. Available at: https://uknowledge.uky.edu/klj/vol40/iss3/4 This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Notes and Comments INSANITY AS A DEFENSE IN CRIMINAL LAW As modem research in the fields of psychology and psychiatry continues to broaden the understanding of mental disorders it becomes increasingly apparent that the law is lagging far behind in its under- standing of and tests for msanity as a defense in criminal law The early development of the law relating to insanity shows a tendency to confuse sub-standard intelligence or feeble mindedness' with msanity, an oversimplification from which the law has not yet been able to extricate itself. Today learned members of the psychia- tric fields are expected to aid in the determination of insanity when the legal tests are so immature and misleading as to defy the applica- tion of modem principles. Before the reign of Edward I (1272-1307), the kings pardon was necessary to excuse a madman from criminal responsibility 2 Both be- fore and after that time the various definitions of a madman termed hm- a brute or wild beast,3 a child less than 14,4 or one unable to number twenty pence.5 All of these tests indicate immaturity or feebleness of mind as much as or more than insanity as it is scientifi- cally understood." 'See VAUCHN, GENERAL PSYCHOLOGY 570-573 (11th Rev. Ed. 1939), for a description, origins, and types. 3 HOLDSWORTH, HISroRY OF ENGLISH LAW 372 (1923); 2 POLLOCK AND MAITLAND 478 (1911); 2 STEPHEN, HIsToRY OF Tim CmnmNAL LAw OF ENGLAND 151 (1883). "About five hundred years ago it was not uncommon for a 'lunatic to be considered as possessed of evil spirits and therefore ipso facto cnminal. They were frequently incarcerated in ill kept prisons where the so-called super- vision was notonously cruel, and it was only in the most extreme cases that a defense of insanity could hope to succeed." MEaurrE, INsANrrY AS A CimHNAL DEFENSE 7 (1931). "A madman is one who does not kmow what he is doing, who lacks in mind and reason and who is not far removed from the brutes." This was an early definition by Bracton as quoted by GLuEcE, MENTAL DIsoRDa AND THE CrmnmN LAw 126 (1925). See the discussion of the "wild beast" test in Ar- nold's Case, 16 How. St. Fr. 695, 764 (1724), reprinted, SAYRE, CASES ON CRIuI- INAL LA-,w 483 (1927). See also MEREDITH, op. cit. supra note 2, at 7. 'If "such a person laboring under melancholy distempers bath yet ordinarily as great understanding, as ordinarily a child of 14 hath," he may be guilty of treason or felony. HALE, PLEAS OF THE CROWN 30 (Ed. of 1778). Early m the sixteenth century, Fitzherbert would excuse "a person who can- not account or number twenty pence, nor can tell who was his mother or father, nor how old he is, etc., so as it may well appear he bath no understanding or reason what shall be for his profit, or what for his loss." Cited In 1 HAwKjNs, PLEAS OF THE CRowN 2 (8th ed. 1824). "Today m courts of cnmmal jurisdiction, the defense of insanity is so fre- quent, and of such wide range, as to include, the raving mamac, the epileptic, tHe man whose act is committed under what is called an 'irresistible impulse, and KENTUCKY LAW JouRNAL Of course, neither a child who is beneath the age of understanding nor a feeble-minded adult should be held accountable for a crime. Such persons are irresponsible and should be excused.7 However, insanity is an infinitely broader field s and deserves a test far superior to that laid down in McNaughton s Case," the legal test of insanity in the majority of jurisdictions today 10 The McNaughton rules state that one is excused who does not know the nature and quality of the crimmal act or, if he does, he does not know that it is wrong. This theory stems from the early tests of insanity concerning those "not far removed from the brutes." Glueck points out that the first half of the McNaughton test is based on the theory that a madman or brute "does not know what he is doing.""i The second half of the test, that of right and wrong, also shows its origin to be interrelated with the comprehension of children and 2 13 idiots 1 of the abstract terms of good and evil. Although the term "good and evil" came to be used synonymously with the phrase "right and wrong" in several early 19th Century cases, it was not until the opinion m McNaughtons Case that "knowledge of right and wrong as to the particular act was substituted as a criterion for the knowledge 4 of right and wrong or good and evil m the abstract."1 The rules laid down m 1843 by the justices in McNaughton s Case even a condition which I have seen vaguely, if not elegantly, described as a 'brainstorm " MEREDrrH, op. cit. supra note 2 at v. (Greenshields forward). "Unsoundness of mind is no longer regarded as in essence a disorder of the in- tellectual or cognitive faculties. The modem view is that it is something much more profoundly related to the whole orgamnsm-a morbid change in the emotional and instinctive activities with or without intellectual derangement" Id. at 113. "'The feeble-minded constitute a grave social problem, since they turn so readily to crime if the proper safeguards are not taken in their training. Since hereditary types of the feeble-minded tend to propogate their own land, and since they tend to multiply rapidly, eugeincists have suggested segregation, coloinzation, and sterilization as remedial measures." VAUCHAN, op. cit. supra note 1, at 572. 8 MERnFiTH, op. cit. supra note 2, at ix (preface). "It has been said that one in every three hundred persons is 'insane in one way or another and that the civilized world is full of men and women who are warped' and in whom a varying degree of mental unsoundness exists." 010 Clark and F 200, 8 Eng. Rep. 718 (1848). 101 BuoicK, LAw OF Cnrms 277 (1946); GLUECK, op. cit. supra note 3, at 214. See SAYRE, CASES ON CmiinNAL LAW 487 n. 1 (1927). " Op. cit. supra note 3, at 127. 2An idiot belongs to the lowest class of feeble-mindedness. See VAUGHAN, op. cit. supra note 1, at 572. [ " those who are under a natural disability of distinguishing between good and evil, as infants under the age of discretion, idiots, and lunatics, are not puishable by any criminal prosecution " HAWKINS, Op. cit. supra note 5, at 1-2. "IWEmOFEN, INsANiTY AS A DEFENSE IN CRuINAL LA, 20 (1938). See GLUECK S excellent case study of American jurisdictions employing the Right and Wrong test, op. cit. supra note 8, at 227 et seq. See also MEREDITH, Op. cit. supra note 2, at 24. NOTES AND Commx iNTS have been the subject of numerous and varied criticisms. First of all it is pointed out that the rules were laid down extra-judicially, i.e., they were simply the replies of judges to certain questions put to them not during but after McNaughton s Case.15 They were not based on any one case and the judges were obliged to lay down the law without hearing evidence or argument of counsel. It was on this point that Justice Maule, the lone dissenter among the 15 judges, took issue with his colleagues.", This objection seems valid when it is considered that the judges had to draw only from contemporary theories and past precedents which were tainted with the barbarism of the wild beast test and the naive 14-year-old test.17 One group of authorities points out that the opinion of the judges was indefinite because after setting forth the questions that should be submitted to a jury they added that the questions should be "accompanied with such observations and explanations as the circumstances of each par- ticular case may require." This, it is claimed, "left the door open for modification" and showed that the judges had but "halting faith in the efficacy, clearness and all-mclusiveness of their own tests."is Of course, a clear and simple test must be put to a jury composed of laymen who know nothing of the scientific tests of insanity, in order that they may use their own knowledge and the facts of the case to frame a yes or no answer. This limitation in our present sys- tem of determining insanity forces the use of an oversimplified test. Dr. William White recommended that the jury s function should be confined merely to deciding whether or not the crime charged had been committed. If it had, then the prisoner should be turned over to the state authorities who would determine the question of insanity by employing medical experts; the jury would have nothing to do with deciding whether the prisoner was insane.10 Other medical authorities maintain that the determination of sanity should rest with the jury but that the panel, instead of consisting of laymen, should be ' MEREDrrH, op.