AAPL Practice Guideline for Forensic Psychiatric Evaluation of Defendants Raising the Insanity Defense*,† Statement of Intent judgment determine how to proceed in any individ- This guideline is intended as a review of legal and ual forensic evaluation. psychiatric factors to give practical guidance and as- Adherence to the approaches and methods set sistance in the performance of insanity defense eval- forth in this document will not ensure an accurate uations. It was developed through the participation assessment of a defendant’s mental state at the time of forensic psychiatrists who routinely conduct eval- of the instant offense. These parameters are not in- uations of competence to stand trial and have exper- tended to represent all acceptable, current, or future tise in this area. Some contributors are actively in- methods of evaluating defendants for and drawing volved in related academic endeavors. The process of conclusions about the insanity defense. The fact sit- developing the guideline incorporated a thorough uation, relevant law, and the judgment of the foren- review that integrated feedback and revisions into the sic psychiatrist determine the ultimate conduct of final draft. This guideline was reviewed and ap- each insanity defense evaluation. proved by the Council of the American Academy of The guideline is directed toward psychiatrists and Psychiatry and the Law (AAPL) on May 19, 2013. other clinicians who are working in a forensic role in Thus, it reflects a consensus among members and conducting evaluations and providing opinions re- experts about the principles and practice applicable lated to the insanity defense. It is expected that any clinician who agrees to perform forensic evaluations to the conduct of insanity defense evaluations. This in this domain has appropriate qualifications. practice guideline should not be construed as dictat- ing the standard for this type of evaluation. Rather, it is intended to inform practice in this area. This Overview guideline does not present all acceptable current ways of performing these forensic evaluations, and follow- The insanity defense is a legal construct that, un- ing it does not lead to a guaranteed outcome. Differ- der some circumstances, excuses defendants with ing fact patterns, clinical factors, relevant statutes, mental illness from legal responsibility for criminal administrative and case law, and the psychiatrist’s behavior. The ability to evaluate whether defendants meet a jurisdiction’s test for a finding of not crimi- *The AAPL Task Force to revise the Guideline on Forensic Psychiatric nally responsible is a core skill in forensic psychiatry. Evaluation of Defendants Raising The Insanity Defense consisted of: This document is intended as a practical guide to Jeffrey S. Janofsky, MD, Chair and Medical Director; Anne Hanson, insanity defense evaluations of adult defendants. MD; Philip J. Candilis, MD; Wade C. Myers, MD; and Howard Zonana, MD. Brooke Irving, JD, consulted in the preparation of (While the guideline does not specifically address Tables 1–6. special issues that arise with youth, the principles †The original guideline was published as: Giorgi-Guarnieri D, Janof- sky J, Keram E, Lawsky S, Merideth P, Mossman D, Schwartz-Watts related to the insanity defense are largely the same, D, Scott C, Thompson J Jr, Zonana H; American Academy of Psychi- although a clinical analysis from a developmental atry and the Law. AAPL practice guideline for forensic evaluation of defendants raising the insanity defense. J Am Acad Psychiatry Law perspective will also be integrated into the assess- 30(2 Suppl):S3–S40, 2002. PMID:12099305 ment.) The language used throughout the document Acknowledgments: The members of the Task Force wish to thank the following AAPL members who provided written comments on various is intended to address the insanity defense only, and drafts of this document: Joanna Brandt, David Rosmarin, Richard does not address other issues regarding criminal re- Frierson, Richard Scarnati, Thomas A. Grieger, Steven K. Hoge, Jon- sponsibility, such as diminished capacity or mitigat- athan L. Weker, Laura L. Post, Peter Ash, Douglas Mossman, Jeffrey Metzner, John Scialli, George Parker, Alan Newman, Hannah Ong, ing mental conditions affecting sentencing. Debra A. Pinals, Kahlid El-Sayed. The report acknowledges differences between eth- Disclosures of financial or other potential conflicts of interest: None. ics guidelines and legal jurisdictional requirements. Volume 42, Number 4, 2014 Supplement S3 Practice Guideline: Evaluation of Defendants for the Insanity Defense Jurisdictional rules of discovery or hearsay, among A. Pre-M’Naughten History others, may compel the forensic psychiatrist to con- Commentary on Hebrew Scriptures as early as the form to different practices in different locations. 6th century B.C.E. distinguished between offenses Definitions for the purpose of this practice guide- where fault could be imposed and those that occur line include the following: without fault. Examples of the latter were those com- Forensic psychiatrist: a psychiatrist with forensic mitted by children, who were seen as incapable of training or a psychiatrist who conducts an insanity weighing the moral implications of personal behav- defense evaluation. ior, even when willful, and by the intellectually dis- Mental disease or defect: a legal or statutory defi- abled and insane persons who were likened to nitional requisite criterion for the insanity defense. children.4 Mental disorder: a disorder described in the Amer- In the 12th century, issues of moral wrongfulness ican Psychiatric Association’s Diagnostic and Statis- began to develop in pre-English law that raised the tical Manual of Mental Disorders (DSM) or the In- concept of “madness” as it relates to culpability. ternational Classification of Diseases (ICD). Lords of state began granting pardons to individuals Insanity defense: a special defense in the criminal who were convicted of a crime and obviously mad.5 law excusing a defendant from criminal responsibil- These pardons usually ordered the accused to com- ity. A defendant whose insanity defense is successful mitment and treatment in a mental institution in- is adjudicated either not guilty by reason of insanity stead of a prison. Unfortunately, the mental institu- (NGRI or NGI) or guilty but not criminally respon- tions and prisons lacked both adequate facilities and sible (NCR), depending on the jurisdiction. treatment for the seriously mentally ill. Granting par- dons, however, preserved the dignity of the legal I. Introduction and History of the Insanity process. Defense In the 13th century, the moral wrongfulness re- For centuries Anglo-American law has maintained quirement of Christian law was merged into English the principle that a person can be found not crimi- common law, to require both the presence of a crim- nally responsible for an offense if at the time of the inal act (actus reus) and the presence of a guilty mind offense he was insane.1 Judge David Bazelon suc- (mens rea). Henry Bracton, who wrote the first study cinctly summarized the moral basis of the insanity of English law, noted that because children and the defense: “Our collective conscience does not allow insane were incapable of forming both intent and punishment where it cannot impose blame.”2 Insan- will to do harm, they therefore did not have the ca- ity defense rules have always been controversial. At- pacity to form a guilty intent.6 tempts upon the lives of kings, presidents, and gov- With reference to children, the common law set- ernment officials have often led to review and tled into its present form between the 5th century modification of legal standards. The most recent and the time of Lord Coke in the 17th century: The such national review occurred in the aftermath of the doli incapax doctrine found in common law con- attempted assassination of President Ronald Reagan sisted of an irrebuttable presumption that children by John W. Hinckley in 1981. under age seven were incapable of committing a The case history prior to John Hinckley can be crime. Between the ages of 7 and 13 (inclusive), how- divided into three categories that center on one sig- ever, incapacity was presumed but was open to chal- nificant legal event—the trial of M’Naughten. (The lenge. This rebuttable presumption could be over- spelling of M’Naughten is quite controversial. There come by the prosecution producing evidence that is evidence, based on his signature, that it should be showed the child was intelligent enough to distin- M’Naughten. The name has been spelled at least guish between right and wrong (or good and evil) nine other ways in the medical and legal literature. and, therefore, aware of the wrongful nature of the We have elected to use the spelling most often found act in question.7 The “knowledge of right and in the legal literature.)3 The legal cases prior to wrong” language denotes a general capacity or status M’Naughten, the M’Naughten case itself, and the le- that young children are thought to lack. gal cases after M’Naughten define the three historic Prior to the M’Naughten case, English jurists made periods that shape our present-day understanding of several attempts to find the appropriate test for in- the insanity defense. sanity. The “wild beast test” of Justice Tracy in the S4 The Journal of the American Academy of Psychiatry and the Law Practice Guideline: Evaluation of Defendants for the Insanity Defense 1723 Arnold case held that a man must be “. to- M’Naughten was legally insane, the public was out- tally deprived [emphasis added] of his understanding raged at the jury’s verdict supporting the plea. Queen and memory, and doth not know what he is doing, Victoria, who was also concerned about the verdict, no more than an infant, ...a brute, or a wild summoned the 15 Law Lords in the House of Lords beast...”before being found insane.8 Other English and asked them five questions concerning the insan- tests included the offspring of a delusion test champi- ity defense.