Marvin W. Acklin, PhD, ABPP Board-certified Clinical, Assessment, & Forensic Psychologist

1. Mental State at the Time of Offense Assessments and the Insanity Defense---Hawaii State Hospital July 7, 2010 Marvin W. Acklin, PhD, ABPP Board-certified Clinical, Assessment, & Forensic Psychologist Honolulu, Hawaii

2. Mental State at the Time of Offense Assessmentsand the Insanity Defense • The insanity defense: • Background • Misconceptions about abuse : the 1% rule (Hawaii 2-3%?) • Elements of a crime (actus rea) • The issue of moral responsibility (mens rea)

3. Mental State at the Time of Offense Assessmentsand the Insanity Defense Hawaii law: • §704-400 Physical or mental disease, disorder, or defect excluding penal responsibility. (1) A person is not responsible, under this Code, for conduct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law. (2) As used in this chapter, the terms "physical or mental disease, disorder, or defect" do not include an abnormality manifested only by repeated penal or otherwise anti-social conduct.

4. Mental State at the Time of Offense Assessmentsand the Insanity Defense • §704-401 Evidence of physical or mental disease, disorder, or defect admissible when relevant to state of mind. Evidence that the defendant was affected by a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is required to establish an element of the offense.

5. Mental State at the Time of Offense Assessmentsand the Insanity Defense Origin of Hawaii law-- • The American Law Institute (ALI) designed a new test for its Model Penal Code in 1962. Under this test, "a person is not responsible for criminal conduct if 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 conform his conduct to the requirements of the law."

6. Mental State at the Time of Offense Assessmentsand the Insanity Defense • Wild Beast test--If a defendant was so bereft of sanity that he understood the ramifications of his behavior "no more than in an infant, a brute, or a wild beast," he would not be held responsible for his crimes.

7. Mental State at the Time of Offense Assessmentsand the Insanity Defense • 1843--Under the M'Naghten rule, a criminal defendant is not guilty by reason of insanity if, at the time of the alleged criminal act, the defendant was so deranged that she did not know the nature or quality of her actions or, if she knew the nature and quality of her actions, she was so deranged that she did not know that what she was doing was wrong.

8. Mental State at the Time of Offense Assessmentsand the Insanity Defense • Insanity Defense Reform Act of 1984— Public outrage at the attempted assassination of President Reagan prompted Congress to change the Federal statutes—subsequently followed by many states including Hawaii.

9. Mental State at the Time of Offense Assessmentsand the Insanity Defense • 18 USC 17 Federal standard (a) Affirmative Defense— It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. (b) Burden of Proof.— The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

10. Mental State at the Time of Offense Assessmentsand the Insanity Defense • Guilty but mentally ill • Burden of proof: pre-and post Hinckley, • shifted the burden of proof from state to defendant by • preponderance or clear and convincing evidence • Insanity and Substance-Induced Psychosis • Voluntary intoxication vs. “settled” insanity • Mental state at the time of the offense assessments--establishing substantial impairment

11. Mental State at the Time of Offense Assessmentsand the Insanity Defense • Review of information sources • Prior to • at time of, and • after the criminal offense • Clinical examination of defendant • Creating the clinical picture--the importance of concrete observations in police and witness reports, behavior in court

12. Mental State at the Time of Offense Assessmentsand the Insanity Defense • Clinical examination of defendant--the patient’s current clinical condition and tracking clinical response to treatment--the importance of good documentation in the chart (initial psychiatric evaluation, periodic updates, MRP, and progress notes). • Testing for Malingering--the importance of psychological evaluation in suspected malingering cases • The Rogers Criminal Responsibility Assessment Scale (RCRAS)

13. Mental State at the Time of Offense Assessmentsand the Insanity Defense • The psychotic-unfit patient @ HSH: restoration issues

14. Mental State at the Time of Offense Assessmentsand the Insanity Defense • Discussion