GUILTYBUTNOTRESPONSIBLEFORTHECRIME:AN INVESTIGATION OF THE APPLICATION OF

LEGALINSANITYRULESINTHESTATEoFCALIFoRNIABETWEEN THE YEARS OF 1977 AND 1987

ThisdissertationbyAstridEiland,directedandapproved by tne-canaidati's committee, has been acceptedandapprovedbythefacultyoftheCenterforPsychologicalstudies in puilirr fulfillment of the requirements for thedegree of

DOCTOR OF PHILOSOPHY

/t.t;-BiWia Sussman, Pn.n

/)nn . ^+ nl-,/.'Pl-, O

Da te '. -/

Di sse r ta t ion Commi ttee :

ussman,

rgaret

1I

GUILTY BUT I{OT RESPONSIBLE FOR THE CRIME:

A}I INVESTIGATION OF THE APPLICATION OF

LEGAL INSANITY RULES IN THE STATE OF CALIFORNIA

BETWEEN THE YEARS OF 1977 A}ID L987

by

Astrid Eiland

B.A. (Sacramento State University) L977

M.A. (Hayward State University) L982

A Dissertation

Submitted in Partial Satisfaction of the Requirements of the

Degree of

Doctor of Philosophy

inClinical Psychology

at the

CENIER FOR PSYCHOTOGICAL STUDIES

ABSTRACT

onehundredandthirty-sixNotGuiltybyReasonof

Insanityreports(twoforeachof69defendants)fromfour

Forensic l"1enta1 Health Examiners for a california county

SuperiorCourtwereexaminedforcontentandagreement.

The time per iod covered was January 1 ' 1978 through

December 3Ir 1987, a 1O-year period in which the first

halfinvolvedaPplicationoftheAmericanLawlnstituteTestforLegalinsanity,whileEhesecondhalf}'laSbased

uPontheMtNaughtonRule.Thefourexaminersv,erealso

interviewed in an effort to identify factors associated

with NGI recommendations during both time periods'

rt lsas found that there was a high degree of agreement

between examiners and with the final decisions of the

court. There vJas a stight reduction in cases examined as

wellasadjudicatedduringthesecondtimeperiod,butthe

examiners emphasized other factors in addition to the

changeinlegalsanitytest.ProfilesofdefendantsaSwell as factors associated with NGI recommendations

appeared to have undegone some changes between the time

per iods.

Copyr ight

by Astr id

A11 rights

(c) 1989

Eiland

reserved.

lr1

ACKNOWLEDGIqENTS

IwouldliketoexPressmygratitudetothepeople

who have given of their time and energy in supPorting my

efforts with this project. special appreciation is owed to

Dr. sylvia sussman, who chaired the dissertation committee

and contributed countless valuable suggestions for making

it a more tightly reasoned endeavor. I would also like to

thankDr.MichaelDavidravaluablememberofthe

dissertation committee, for his numerous suggestions and

extreme}yvaluablehelpintheinterpretationofthe

results. I also would like to exPress special thanks to

Dr.llargaretAlafiforhersupportandencouragement.Even though names cannot be mentioned ' I want to

exPressmyaPpreciationtothefourforensicexaminersfor

contributingtheirtimeandsharingtheirexperienceswithme.

1V

TABLE OF CONTENTS

Acknowledgments . . . . . . . . . . 'lvI. INTRODUCTION . .

Statement of the Problem

St udy

NGI Defensety

11

t213

15

161920202L2t2223

25

.66

.70

.70

.75

.76

.76

.77

.78

. .80

. .80among. .81. .88

. .98

. 100

The Research QuestionsThe Significance of the

The Durham Test . .

l,lode1 Penal Code (American Law Institute) Test. .California L977 to 1987Issues of the Eighties

Section II: IssueF Related to theConceptuallzation of "Insanity"

Section III: A Comparative Description ofthe Various "Tests" for Insanity in theState of California .34Difficulties with the Application of the

ALITest...... - -4LSection IV: Related Empirical Studies . . . . .'43

Factors Associated with Successful NGI Pl.eas. . .49Section V: Literature on the Practice and

Quality of Forensic Evaluations, Existing lvlodels,and Assessment of the Current Situation .55Differences in Assessment Approaches between

Psychiatrists and Psychologists . .56

III. METHODS AND PROCEDURES.Forensic Assessments

SamPl eAnaIYsis

Interviews with Forensic Examiners. .

Subjects . .The Interview....AnalYsis

II. REVIEW OF THE LITERATURESection I: An Historical Review of the

and of Various "Tests" of Legal InsaniThe I"l rNaughton RuleThe Irresistible ImPulse TestThe New HamPshire Test . .

RecommendationsPart II: Interviews with Forensic

Wi tnesses

IV. FINDINGS. .Part I: Letters of Forensic Examiners

Section I: Comparison of NGI RecommendationsExaminers and between Examiners and Court

Section II: Profiles of Defendants' 'Section III: Factors Associated with NGI

Exper ta

v

l,lethod and Factors Used by the Examiner toEvaluate Whether the Defendant is NGI

Effects of Change in Legal Tests from1978 -1987 .

Relation of Legal ConcePtsPs ychoPa tho 1 ogY

Di fficulties Encountered in

DISCUSSION 107Section I: NGI Pl-eas, NGI Recommendations and

Adjudication . . ' o ' I09Re6uction in NGI Pleas . 109Changes in Recommendations by Examiners ' 111NGr iajuaication. ' 113Agreement among Examiners . 114Aireement among Examiners and Court ' 115

Section II: Profit"s of Defendants ' ' 116Self-Reports 116Clinical observations ' I20

Section III: Factors Associated with NGIRecommendations L23Demographic Information based on Self-Report' ' I?1F=v"fiiatric symPtoms. . r24seif-Reports. . 124Differences in Factors Associated with the ALI

and lvlrNaughton Insani'ty Tests ' L26Section 4: pr5blems Encountered When l"laking

Translation between Legal and PsychiatricConcepts of rnsanitY. : . " " 128

L32

r01

103to ConcePts of

in" r*u^in-.i"t:: i33

V.

REFERENCES

APPEND I C ESAppendix A:

Appendix B:

Append ix C:

APPendix D:

Appendix E:Appendix F:

Appendix G:

' oia"r' ro r' E*".i;.;io.,'prr=run; ;"' pt'''ur' 14 0

Code Section l-026 141Criminal Law & 207 Trial Proceedings on

Issues of InsanitY 144&]026 Plea of Insanity; Appointment and

Semistructured Interview Guide forForensic Plental Health Examiners ' 11+'

SampIe Letters by Forensic lviental HealthExaminers . ' L71

v1

LIST OF TABLES

1. Disposi tion of Cases by Ivlental Health Examiners

2. DisPosition of Cases bY Court

3. Agreement among Examiners ' '

4. Agreement among Examiners and Court

5. Demographic Information Based on Self-Report'

6. SeIf-Report on Psychiatric History' PreviousArrests and Convictions ' '

7. Self-Report of Psychiatric State at Time ofOf f ense

S.UseofPsychotropicl'lecicationsAroundTimeofEvaluation Based on Self-Report ' ' ' '

g. ClinicaI Observation by Mental Health Examiners

Io.DefendantlsPsychiatricDiagnosisReportedtoCourt bY Examiner

11. Factors Associated with Insanity Tests for whichThereisaDifferenceofAtLeastl5PercentagePoints Between NGI and Non-NGI'

82

84

85

85

89

. 91

.92

93

95

.97

v11

CHAPTER I.

INTRODUCTION

Statement of the Problem

The interaction between psychology, psychiatry, and

the 1ega1 system around the question of sanity at the

time of a criminal offense, and the appropriate

disposition of such cases, has been a subject of

controversy for decades. The complexity of this

int,eraction was noted by Judge Bazel-on in his opinion on

Durham v. United States (1954), in which he stated that

,our collective conscience does not al1ow punishment where

it cannot imPose b1ame."

The problem of achieving fair trials and verdicts for

mentally i11 offenders has not been solved during the 34

years since Judge Bazelon's remark, despite many

subsequent revisions and changes in the aPplicability of

the ]aw and its interpretations by legal as well as mental

health profeSSionalS. The current study focuses uPon

forensic psychological/psychiatric evaluations, as they are

used in the assessment of defendants attempting a "Not

Guitty by Reason of Insanity" defense (also known as NGI)

in the State of Ca1 i fornia.

An NGI verdict is important in determining what

happens to the defendant after he has already been tried

for a criminal offense and found to be guilty of a crlme'

AnNGlfindingdoesnotmeanthedefendantgoesfree.

BeingfoundNGlmeanshewillreceivepsychiatric

treatment for his mentat disorder rather than incarceration

inprison.Thistreatmentalmostalwaysoccurswithinthe

statementalhospitalsysteminCalifornia,andtreatment

continuesuntilthestaffatthetreatinghospitalreportsto the court that the defendant has recovered his sanity or

hasreachedmaximumbenefitfromtreatment.Atthattimethe defendant is returned to the original committing court

foradecisionaStowhetherhewillbereleasedintothe

community, under the Penal Code (P'C') of the State of

California, Sec. LO26'2, (1985) ' or if an additional Prison

SentenceorfurtherPsychiatricrehabilitationis

indicated -

however r has no means of evaluating

the accused at the time of his

it has turned toward mental health

professionalssuchaSpsychiatristsandpsychologistsfor

expertopinionsonthesematters.Theseexpertopinions

are not binding uPon the court but are introduced into

evidence to be taken into consideration by the judge and

jury.Aidedbythetestimonyofoneormorepsychiatrists

and/or psychologists, the defense and prosecution submit

The court itself ,

the state of mind of

offense. ConsequentIY,

the case to the judge and/or jury for a verdict regarding

sanity at the time of the crime'

Itmustberememberedthatthesanityoftheaccused

may not be the same at the time of the psychiatric

examination as at the time of the crime' and it is

possible to have been totally insane at the time of the

cr ime, whi 1e presenting no symptomatology dur ing the

examination or vice versa '

Thebranchofpsychiatricandpsychologicalpractice

deal ing wi th court-related matters is referred to as

forensic psychiatry and forensic psychology' and this field

has developed into an area of sPecialization for both

discip}ines.ThetermforensicisderivedfromtheLatinforensis, which referred to the Roman Forum and to

functionsofthecourtsuchaSdiscussio',=,debates,

argumentation, and rhetoric' Forensic psychiatry therefore

pertainstotheuseofpsychiatricknowledgeandtechniques

inquestionsoflaw,suchaSindetermininglegalsanity.Forensic psychology pertains to the same investigation of

mentar states and processes and application of concepts of

psychopathology to the interPretation of the 1aw' The

forensicmentalhealthexpertisthereforeaprofessionalholdingadegreeofDoctorofl'ledicineorDoctorof

Philosophy and is Iicensed to practice psychiatry or

psychology. (Di fferent courts may have additional

requi rements ' )

SincetheinceptionoftheNGldefenseltherehave

beenproblemsarounditsinterpretationandapPlicationby

boththecourtsandforensicmentalhealthprofessionals.Furthermore, the concept of insanity appears to be so

loosely defined by the courts as to create substantial

misunderstandingbetweenlegalandmentalhealthexperts.There does not seem to be a direct relationship between

what is viewed as 1ega1 insanity and that which is

understoodtorePreSentinsanityinthementalhealthfieldr dS shown below'

As a registered psychiatric nurse' this researcher

has been involved in the care and treatment of Persons

found to be NGI in the state of california' Even though

allthesePatientswereassignedtoamaximumsecurity

unitatastatehospital,theypresentedavarietyofsymPtomsandweretreatedwithvariousmodalities,including chemotherapy, grouP theraPY' individual theraPY'

oCcuPational therapy, and electroconvulsive therapy. Some

patients were obviously psychotic' while others did not

aPPeartohaveSeverepsychiatricdisorders.Somewereinvolved with elaborate deiusional systems' while others

activelyhatlucinated.Manypatientsshowedlittle

symPtomatology, howeverr and seemed to have intact reality

testing. What all these Patients had in common was

their having committed a serious offense at a time when

they lrere determined by the court to have been 1ega1Iy

insane. Instead of receiving a prison sentence, they were

being treated in a mental institution'

Dealing with this diverse range of cases brought

the researcher to the realization that the concePt of

insanity, as interpreted by the courts, did not encomPass

anySPecificsinglemedicalsyndromeorpsychopathologicalconcept. clearly the term insanity had been used to apPly

to a wide variety of psychiatric conditions. Ultimately it

became clear to this researcher that the term "insane" was

not being used by the courts in a psychiatric sense at all'

In the lega1 context the term is being used with a

substantially different meaning from the one it carries in

the mental health field. The observation that courts and

mentalhealthprofessionalsusetheterminsanityindifferent ways has also been made by 1ega1 scholars

(Biggs, 1955; Weihofenr 1955), as well as psychiatric

professionals (Glueck , 1925i Hal1eck, 1971), and those

educated in both the 1ega1 and psychiatric fields

(Robitscher, 1956). It aPPears that "1e9a1 insanity" is a

labelwithsPecificmeaningtothecourtsystem,whichdoes not coincide wi th any recogn ized psychiatric or

psychological concept. "Legal insanity"' then' is defined

by ,'tests', formulated by the 1ega1 system (Daniel

MrNaughten caser 1843; PeoPle v. Coffman, L864; PeoPle v'

Wo1ff, 1964; People v. Drewr I97Bi Penal Code 25(b), 1982;

However, these 1egal tests are applied by psychiatric

and psychological forensic professionals, who approach the

task with a different perspective from that of the test

des igners (Robitscher, 1966; I"lcDonald v- United States,

1957. Ivloreover, the tests themselves may vary in dif f erent

states, Since neither the Uni ted StateS Constitution nor

Supreme Court mandates the use of any particuLar test.

There is no universal or even nationwide criminal insanity

1aw. Instead there are a multitude of separate faws upon

which each state and the Federal Government differ, not

only in the interpretation and aPplication of the NGI

defense, but also in the rehabilitation or punishment of

those found to be NGI.

The result has been that states and federal circuit

courts have been free to adopt tests of thei. "noosing

(shaw, L986), and these tests have varied from one time

period to another. There has also been a great deal of

controversy among the different professional organLzations

representing the 1egaI, psychiatric, and psychological

practitioners involved in NGI cases. The American Bar

Association, American Psychological Association, and the

American Psychiatric Association have at1 taken differing

positions on the major issues'

The vocabulary used to refer to the offender with

mental problems has also varied, which leads to some

confusion in the literature. Terms such as "menta1ly

abnormal offend€E r " "criminally insane offender, " "and

insane criminal,, have been used at various times by

different professionals, but the meanings of such terms

are vague and often subj ect to a var iety of

interpretations. This inconsistency of terms may have Ied

to miscommunications between te9al and mental health

professionals(Ha11eck,}97I;Robitscher,1965).Alsothe

changing meaning of insanity" apPears to have created a

conceptual problem between var ious professionals (Dix I

t98I; Hoffman, 1981; Shah, !969, 1974, L977 ' 1978) '

CIear cr i ter ia which would yield a universal

interpretation of the term insanity seem to be lacking'

The concept of insanity is appl ied in a var iety of

different ways by different professionals under different

1ega1 j ur isdictions.

ThepreSentresearchexploresapplicationofthe

legaI concept of insani ty through an empi r ical

investigation of the process by which 6B defendants' who

attemptedtousetheNGldefenseinacountyintheStateof cal ifornia, were evaluated by two forensic experts

during a 10-year period from 1978 through 1987' This

period is of special significance because during this time

the tests for 1e9a1 insanity used in the Superior courts of

California have changed twice.' From I978 until 1982 the

Drew Test of Insanity was in Place. This test is also known

aS the f irst part of the American Law Institute t s l'lodel

Pena1 Code or ALI test. However, in 1982, the voters rn

the state of California passed an initiative Proposition

(PropositionB)reStoringtheM'NaughtonRule,alSoknown

astheThePeoplev.CoffmanTest(1864),whichhadbeen

used in california from.1864 until 1964. It was felt that

comparison of forensic determinations made at various

points during this period would alIow conclusions to be

d rawn as to how the particular tests influenced the

ultimate finding of 1ega1 sanity or insanity'

Itwashopedthatsuchastudywouldalsorevealthe

degreetowhichNGlevaluationsarenotrelatedtoconcepts of insanity as used in t'he mental health

professions, rather to concepts specified by the courts '

and are subject to change in their application'

Changes of aPPl ication in the 1ega1 concept of

insanityhavenotneceSsarilybeenfollowedorbeenaffectedbyanytheoreticalshiftorempiricalfindingsinthe mental health fields. Various studies have suggested

that there are both cognitive and volitional components

present in the commission of a crime (Keilitz a Foultonr

1984; Rogers, 1985; Rogers & CIark' 1985; Silver a Spodak'

1983; Stone, L984; Wettstein, Rogers' & t'lulvey' 1986)'

However, in spite of such findings, insanity tests have

often been prescribed by the courts without including both

components. Mental health professionals, psychiatrists and

psychologistsr dE€ thus asked to make determinations based

on a more restrictive test than research from their

respective fields suggests is necessary for an accurate

assessment (Rogers, 1986) '

Assessmentbyforensicmentalhealthexpertsof

defendantsaEtemptinganNGldefenseinacourtoflawis

thus complex. A major difficulty lies in application of

the term ''inSanity," a loosely defined, unstable, and

impreciseconcePt,withmeaningsthatdifferamongpsychiatric and legat professionals (Bi99s ' 1955; Dix '

1981; Ha1leck, :.97L; Hoffman, t98t; Robitscher, 1955; Shah;

L974, 1977, 1978. )

From a IegaI standPoint, John Biggs, Jr. (I955),

chief Judge, Third Judicial circuit of the united states'

observed that the divergence between 1aw and psychiatry may

find its cause in the '1ega1 fiction" represented by the

wordsinsanityorinsane,whichhecalls'.akindof

Iawyer,s catchall that has no clinical meaning" (p' 117)'

The persistence of this problem is demonstrated by the

history of the NGI defense, with its many changes in rules

and tests applied by various courts' From a medical or

t0

psychiatric PersPective, Glueck (L925), a noted

researcher and writer on the subject, points out that the

term ,,insanity" was formerly used medicatly to describe

thepresenceofmentalillness.HeSuggeststhatthe

confusion around its meaning arose when it came to be used

in the context of "1ega1 insanityr" which is more limited

in scope and refers only to a sPecific time and

circumstance(pp.20_2L).Monahan(1983)makesitclearas

towhatsatisfiesthePrescribedcriteriainanNGl

defense in his statement, "The ultimate decision should be

balanced on scales of justice by people who $rear black

robes rather than people who wear white coats" (P' 14)'

Nevertheless, forensic psychologists and

psychiatrists accePt the task of forming an opinion about

thedefendant'sstateofmindatthetimeofthecrime,baseduponinterPretationofalegalconceptratherthan

any definition of psychopathology. Furthermore, this 1e9a1

definitionhasrequiredadjustmentsbytheforensic

witnesses to the changing interpretation of insanity by the

courts. (Informal discussion with psychiatric and

psycholog ical expert witnesses other than those

participating in this study, 1987)' It is hoped that this

research will inform us of this situation'

ChiefJusticeShawwasawareofthesedifficulties

more than lOO years ago and expressed his opinion in regard

11

to this issue in the following manner:

The fund amenta 1 d i fficul ty in making such

determinations is intrinsic to the very nature of the

task which requi res the making of dichotomous

distinctions with regaro to characteristics that 1ie

around the " invisible 1ine" separaEing criminal

culpability from exculpation. This difficult task is

fur the r compl icated by the vex i ng mora1,

philosophical, and ideological issues involved, the

basic ambiguity of the relevant 1e9aI concepts and

doctrines, and the additional problems of relating

various types of psychiatr ic and psychological

evidence regarding the defendant's impairment to the

specific legaI issues and the aSsociated sociomoral

judgments (Commonwealth v. Rogers, L844) '

At the present time there is no required 'format or

standard as to how to perform forensic psychological

assessments, but some models exist which recommend areas

to be investigated and make suggestions around decision

making. (B]au , L984; Curran, IvlcGartY, & Shah' 1985i

Grisso, L986; tvleIton, Petrila, Pyothress' a Slobogin'

1987 ) .

L2

The Research Questions

The fact that the concept of insanity is both unstable

and has not been translated into a current concept of

psychopathology leads to the following three research

questions for the Present studY:

1. What percentage of NGI recommendations by

forensic mental health examiners result in an NGI verdict

by the court, and is there a difference in the percentage

of recommendations and verdicts depending on the

application of the different 1ega1 insanity tests?

a) To what degree do the recommendations of the

forensic mental health examiners agree wi th each

othe r ?

b) What is the profile of those defendants whose NGI

pleas have been successful and those whose NGI pleas

have not been successful?

2. What factors are associated with the forensic

mental health examiner's recommendations of NGI and not NGI

to the court?

(a) Is there a difference in the factors

discussed in the reports by examining forensic

psychiatrists and psychologists in regard to their

recommendations of NGI pleas dependent uPon whether

the tvlrNaughton Test or the American Law Institute Test

is used?

13

3. What kinds

psychi a tr i c/PsYcholog ical

making the translation

psychological concePts of

do theY base their evaluat

a) In what ways do

betweenen the use

of problems are forensig

exper't witnesses faced t"/ith when

between lega1 and PsYchiaLric/

insanitY; and uPon what factors

i ons?

examining considerations differ

of the MrNaughton Test or ALI

Test?

Thefirsttwoquestions$,ereaddressedbytheanalysis

of a sample of forensic mental health assessments' The

third question was explored with forensic mental health

experts as informants.

ThedatawaSderivedfroml3Sforensicevaluationsperformed by four different mental health experts in a

CaliforniaCountySuperiorCourtbetweentheyearsofl9TS

and tg87. In addition, semistructured interviews were

conducted with the same four mental health forensic

experts.

The Significance of the StudY

The Present research seeks to contribute to the

existingbodyofresearchinthisfieldandtoexploreissueswhichcouldraisequestionsforfurtherresearch.Thisresearchvrasdesignedtocontributetothe

understanding of the conceptu alLzation of legaI insanity

t4

and how it does or does not affect the forensic Process'

Furthermore, this study was designed to add an

empirical framework to approaches to the subject, with its

focus on the importance of concePtualizations of insanity'

It also hopes to assist in the clarification of how the

forensic process is conceptualized by the exPerts, who

must translate back and forth from popular and legaI

concepts to their own professional theories of mental

i 1 lness .

15

CHAPTER II.

REVIEW OF THE LITERATURE

The literature review as a whole will act to set an

historical context, provide evidence of the ambiguous and

shifting lega1 conceptualization of insanity and provide

evidence which suggests the fo11owin9: (A) There is some

problem in aligning the 1e9a1 conceptualization and the

mental health conceptualization of insanity. (B) Forensic

experts are faced with a task which may be unclear, lacks

standardized procedures, and shifts not onty with changing

rules and "tests" for IegaI insanity ' but also with

changing social and political opinions. These shifts,

however, may not be in mutual directions' (C) There is a

need for empi r ical research invest igating the actual

process of forensic menEal health examinations and the

position of the forensic mental health expert vis-a-vis

this Process.

This review of literature wilI be organized in various

sectionsr ds follows: section I: An historical review of

the NGI defense and the various "tests" fot 1ega1 insanity'

section II: A review of the historical literature, which

revealstheshiftsrchanges,andambiguitiesintheconceptualization of ,'insanity" aS a 1e9a1 concept and as a

conceptofpsychopathology.ThisSectionwillalsorelate

I6

literature on the conceptua:-ization of insanity to the

presentNGIproceSS.SectionIII:Acomparative

description of the various "tests" of insanity, along with

the problems and controversies surrounding them. section

lV: Studies comparing and evaluating forensic evaluations'

Section V: Literature on the practice and qual ity of

forensic evaluations; existing models' and assessment of

the current situation.

Section I:

An Historical Review of the NGI Defense

and of Various 'Tests' of Lega1 Insanity

Theissueandimportanceofknowingrightfromwrong

is found in Genesis in the story of Adam and Eve, and has

been a subject of human interest throughout history' How

people are held responsible for their actions, however, is

often subject to revision, depending uPon the social and

political climate of the time. The tests by which a Person

is determined to be IegaIly sane or insane are usually

established bY a court of law'

Levitt(Ig22)PointsoutthattherootsofAnglo_

American criminal law are to be found in Roman 1aw, salic

1aw, Irish 1aw, Ang1o-Saxon 1aw' Hebrew law' and

Christian theology; but there seems to have been no

unified law in England prior to the Norman conquest in

t7

1066. Legal systems, such as they were at that time' were

aSsociatedwithpoliticaldivisionsofthecountry.Those

in existence included ecclesiastic and private courts owned

by landowners, aS well aS Some national courts in major

administrative divisions (Holdsworth' 1966)'

AsearJ'yasthesixthcentury'theteachingsof

Augustine and Pope Gregory came to England with the

missionary Austin, stimulating the development of concepts

of moral resPonsibility (Levitt, L922) '

BythetenthcenturythelawsofAethelredinEngland

started to focus uPon a consideration as to whether the

injurious act had been done intentionally or voluntarily

(Wa1ker,1968).DuringthereignofHenrylll'1216-1272'pardons were recorded for Persons of unsound rnind' and

insanity was considered good grounds for mitigation of

punishment by the reign of Edward I' 1272-1307'

Documentation of ncomplete madness" was a defense to

criminal charge during the reign of Edward III, L326_1327

(Eliasberg , Lg52t p. 319; Glueck ' Ig25' P' I25) ' During

thel6thcenturybyEnglishCanon,',madmen,'''.natural

foolsr""lunaticsr"andchildrenwerenotheldresPonsiblefor criminal offenses such as murders; it was assumed they

wereunabletoknowrightfromwrong(Lambard,1581).EarlyEnglishcommonlawincludedthe'.wildbeast.'

conceptrwhichexcusedtheinsanefottheiractions'bY

18

assuming.theywerepossessedandunabletocontrolthemseLves. As early as the seventeenth century' English

jurists such as coke and Hale proposed that mental illness

couldtotallyorPartiallyPrecludethePosgibilityofan

individual having felonious intent' These jurists argued

that if a person commits an act because of motivaEions that

are not under his control or awareness' he should not be

held fu1ly responsible for his actions. I'Ienta1 illness at

that time had no particular definition and was applied as a

loosenotiontothoseafflictedwithinappropriateand

unexplained behavior (Biggs, L955, chap' 4) '

From 1843 orrr and for over a century' the most

commonlyusedinsanitytestinmanycountriesandinnearlyall states of the united states of America was ba'sed on the

so-called I"l,Naughton Ru1e. In this case a def endant t4'as

tried in an English court f or the wil1f uI murder of a l'1r '

Drummond. During the commission of the cr ime ' the

defendant berieved that he was being persecuted by various

peoplerincludingthePopeandtheBritishPrimelqinister'

It lras his intention to ki11 the Prime l"linister, but

insteadheshotandkilledtheSecretarytoSirRobertPeel. He was acquitted, and his acguittal was based on

thefacthewasdelusionalandparanoidatthetimeoftheThe public I s resPonse to this decision was

crlme.

extremely negative. However, the House of Lords submitted

19

this verdict to a panel of judges, who agreed with it.

Since then this has been referred to as the MrNaughton

rule, named for the defendant (Biggs (1955), chap' 4) '

Records of the Central Criminal Court show that the man

himself signed his name t4'Naghten (Law Quarterly, 1958);

however, a variety of different spellings of this name can

be found in different books and journals (The WeekIy Law

Reports, Izll22, 1957).

The l'ltNaughton Rule

The lil'Naughton Rule states that f or a def endant to

be found not guilty by reason of insanity, it must be

clearly proved that at the time of the offense the party

accused was laboring under such a defect of reason from

disease of the mind So as not to 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 (Daniel

14'Naughton case, 1843).

courts have varied in their interpretations of the

MrNaughton Rule, sometimes referred to as the "ri9ht and

wrong test. ,, some courts have appl ied the rule r i9 id1y,

while others have interPreted it liberally in order to

avoid miscarriage of. )ustice. As early as 1844 Chief

Justice shaw of the u. s. supreme court expressed his

dissatisf action with the I,lrNaughton Rule, bY suggesting

that it was concerned with a purely intellectual

20

responsibilityandignoredtheimportanceofemotionalfactors and instinctual drives' He gave specific

instructions to the jury also to consider irresistible and

uncontrollabte impulse in the commission of the crime

(commonwealth v. Rogers, 1844). This inclusion became more

comnon in later cases and came to be referred to as the

'Irresistible ImPulse Test.''

The Irresistible ImPuIse Test

ThereisnouniformlyforrnulatedteStofirresistible

impulse. Howeverr Vdrious court decisions have agreed upon

the basic principle that a defendant is not criminally

responsible if his reasoning poveers were so far "dethroned"

byhisdiseasedmentalconditionastodeprivehimofthewillpowertoresisttheinsaneimpulsetoPerPetratethe

deedreventhoughheknewitwaswrong(Rubin'1965)'The New HamPshire Test

Not satisfied with the apPlication of the l'lrNaughton

test,thestateofNewHampshirerejecteditinlsTlinthe

CaSeofStatev.Jones(197I),andadoptedthetestof',not

guiltY bY reason of insanitY, i f the crime was an

offspring or product of mental disease'" This test was

broad enough to incorporate a defect in either cognition or

volition. other than this challenge in New Hampshire '

however, the Iv1'Naughton Rule was used almost universally'

though there were modifications at various times'

27

The Durham Test

Inlg54rdsaresultofdissatisfactionwiththe

1,1'Naughton RuIe, the U.S' Court of Appeats for the

District of columbia rejected both the I"lrNaughton and

Irresistible Impulse Test and adopted a test modeled after

the 1871 New Hampshire ruling, which, from this point oIIr

became known as the Durham Test (overholser, 1954 ) '

Nevertheless, by 1956, 29 states still used the l'lrNaughton

Rule in varying forms, while the remaining states, except

New Hampshire, the District of Columbia' and American

}lilitarylaw,usedthe,'IrreSistiblelmpulsentest(Weihofen, 1956).

TheAmericanLawlnstituteexpressedthatbasinga

verdict on the combination of volitional and cognitive

comPonents is preferable to the aPProach of the

MrNaughton Rule, considering that the seParation into

cognitive and volitionat asPects is a hi9hly technical

undertaking. This concept was developed in the 1950s and

ledtothedraftingofthel'lodelPenalCodeinLg62andtheAmericanLawlnstitute(ALI)testin:-964.Section4.0lof

Articte 4 of this test states:

APerSonisnotresponsibleforcriminalconduct

if at t'he time of such a conduct as a result of

mental disease or defect he lacks substantial

ModeI Penal Code (American Law Institute) Test

22

caPac i ty

(wrongfulness )

conduct to the

This new NGI rule aPPeared to encomPass both the areas

ofvolitionandofcognition.ThenewruledidnotapPlyonly to the nraving madn and "psychotic'" It was

stretched to encomPass acts committed under certain

uncontrollable impulses (Walker' 1968) '

Since the United States Supreme CourE does not

requireaSpecifictestEobeusedfortheNGldefense,

differentcourtsareatlibertytouseanyoft'heexist,ingtests. However, a survey published by Favole in I983

indicated that 39 jurisdictions, including all r1 federar

circuitsrwereusingtheALltestinsomerecognizable

form (Monahan a Steadmanr 1983) 'California 1977 Eo I987

InLgs2thevotersintheStateofCaliforniadecreed

thatthethencurrenttestoflegalinsanity,theALltest,putinplacebytheCaliforniaStateSupremeCourtinL9TS'

would be abolished. This change came about through the

barrot initiative known as proposition 8. The new test

dictatedthatforapersontobefound'.NotGuiltybyReaSonoflnsanity,.thedefensemustshowthedefendantwasincapableofunderstandingthenatureandqualityofhisactandthat,hewasunabletodistinguishrightfrom

to aPPrec iate the

of his conduct or to

requirements of the 1aw'

criminalitYconfo rm hi s

23

wrong (California Penal Code 25, 1982) '

Thus the tlrNaughten Rule, having been rePlaced by the

ALI test in 1978 after 100 years of use in the state of

California, became the insanity test again fot this state.

Issues of the Eighties

Even though the state of california seems to have

settled back into use of the l'1r Naughton test ' and

forensic mental health professionals are readjusting their

evaluations to its rules, the debates around what

directions should be taken in matters related to the NGI

defense continue. As recently as 1984 the insanity

defense suggested by the American Psychological Association

ran counter to Ehe sentiments and proPosals for change

advocated by the psychiatric and le9aI communities.

TheAmericant,ledicalAssociationwaSthefirstprofessional organization which publicly opposed the NGI

defense and advocated its abolishment altogether. The

American Psychiatric Association and the American Bar

Association were in favor of more stringent standards for

theaPPlicationoftheNGldefense,whiletheAmericanPsychologicalAssociationtookanempiricistpositiononthe matEer, suggesting changes should be based on

scientific findings, not on mounting political and social

pressures which fo11ow the emotional aftermaths of well

known and publicized cases (American Bar Association'

24

1984; American Journal of Psychiatry, 1983;

I{arch r 1984; Psychiatric News, 1985 ) '

As the confl ict between these various professional

organizalions escalated, the American Psychiatr ic

Association created the Insanity Work Group in 1983'

Various positions were advocated by the various groups '

including the psychiatric community (stone, 1984) and the

American t',ledicat Association (Keiletz & Fulton, 1984), and

some concfuded that perhaps the standards of what was

necessary for a psychiatric defense needed total re-

examination (Rogers, 1985)'

The Insanity work Group concluded that the volitional

prongoft,heexistingAmericanLawlnstitutestandard

should be completely re-examined. They suggested that the

clause sPecifying that the Person committing the

criminal act must be "unable to conform his conduct to the

requirements of the law' to qualify for an NGI defense

maybesubjecttoabuse,duetothevariousPossibleinterpretations of vol i tional acts and motivations

(AmericanPsychiatricAssociationrlgs3)'TheAmericanBar

Association, following the recommendations of the American

psychiatric Association, closely examined the NGI process.

The resul-t was passage by congress of the Insanity Reform

Act of 1984 codifying the ABA cognitive-on1y proposal for

APA l'lon i to r ,

all federal jurisdictions' This instructed all federal

25

courtsEoabandontheALAlnsanityTestandreturntothe

o1d MrNaughton Insanity Test' It was assumed that the

cognitivepronghadastrongerScientificbasisandwould

therefore be measurable, encouraging scientific research

around its application (RogersI 1987) '

Interpretations around the questions relating to

lega1 insanitY have been attemPted bY medical

Ehe legaI

system, and the public. With each nev' steP toward more

tolerance for the mentally i11 in the community we are

continuing to re-examine the issue of lega1 responsibility'

In many ways the judicial systemr ds well as the public'

havelookedtopsychiatristsandpsychologistsfor

professionals, psychiatrists, psychologists'

guidelines on these issues,

received sat'isf Ying answers,

remains unstable.

but theY have not a1waYs

as the concePt of insanitY

Section II:

Issues Related to the conceptualization of 'Insanity'

Thevaguemeaningoftheterm.,insanity.'has

comPlicatedtheuseofthat,termforthoseseekinganNGlverdict by the courts. weihofen (r956), a noted legaI

scholar, made the following observation:

Eorabranchof'learningwhichconsistslargelyof

definition,thelawisstrangelylaxinEheu,seoftheword

26

n insanity. " Unfortunately, the word has no technical

meaning either in Iaw or in medicine, and it is used by

courts and legislat,ures indiscriminately to convey either

of two meanings: 1) any type or degree of mental defect or

disease, or 2) such a degree of impairment to require

commitment to a mental institution, or the aPPointment of a

guardian, or Eo avoid a contract or relief from

responsibil itY for crime (P. 26) .

Professionals in the 1eqa1 and the mental health fields

are not only faced with changing tests for what constitutes

legal insanity, but they must also adjust to the changing

meanings and applications of the word insanity itself. The

psychologists and psychiatrists who assess legaI insanity

not only have to deal wi t.h these vague concePts of

insanity but also must aPPly them retrosPectively to the

defendantrs state of mind at the time of the commission of

the crime. Difficulties in these areas which reach beyond

clinical expertise of psychopathological concepts have been

pointed out and discussed by Gutheil and Appelbaum (1982),

Grisso(1986);Hal1eck(1986);andRogers(1986)'From a psychiatric diagnostic standpoint' the term

insanity is no longer in use, and it is not listed in the

current Diaqnostic and Statisticat Manual (DSM III-R 1987)'

From a lega1 standpoint Bouvier's Law Dictionary states:

"The 1ega1 and medical ideas of insanity are essentially

27

different and the difference is one of substance" (Biggs,

1955r P. 117). These varying points of view have been at

therootoftheconcePtualdifferencesbetweenthepro fess i ona 1 s concerned wi th the NGr Process.

The appraisal of psychiatric contributions to the legal

process is viewed in a variety of ways by different

professionals. slovenko (1978), a 1egal scholar, suggests

that: ,,Psychiatric contributions may be more prized for

their entertainment value than probative worth (P' 22O) '

and psychiatric intervention like a diaper change may not

solveanyproblems,butitdoesmakelifemorecomfortablefor a while" (P. 22L).

Chief Judge Biggs (1955) observed that many judges

are even inclined to regard psychiatric testimony as some

form of disreputable black art. Nevertheless, he believes

thattheintelligentapPlicationofpsychiatrytotheproblems of the mentally deficient criminal defendant can

beofverysubstantialuseinenlighteningbothcourtandjury as to criminat resPonsibilit.y (Foreword p. x) '

However, h€ speaks to the difficulties of combining

psychiatrictestimonywiththeaPPlicationofjudicial

standards in NGf cases as follows:

A very large part of the confusion which

invariablyresultsinthetrialofthecriminal

defendantallegedtobeinsane,liesinthefactthat

28

the psychiatrists deal with mental states and

cond i tions which do not exist save as legal

concePtions. (P. 32)

Glueck(1g25),amedical,zpsychiatricscholar,points

outthattheterminsanit'ywasformerlyinCommonusebymedical and psychiatric professionals, but the confusion aS

to its meaning between medical and 1ega1 professionals

arose when lega1 experts adopted it into their specialized

vernacular. There it became more limited in scoPe and came

torefertoaSPecifictimeandcircumstancerEsinits

application to the changing legal insanity tests (Pp' 2L-

22).

In addition to its having become a 1egal concePtr the

term insanity has also stayed in the popular vernacular

withvariedmeanings.Referencestotheterminsanity

beforelslSrelaEetotheconceptofmentalillnessasadisorderofthemindtotmadnessandunsoundnessofthe

1901). In 1818 the term first appeared in a legal

decisionrwhenitwasnotedthata"manmightbeinsaneatatimewhentwoofthewitnessesattest'andisinsanewhen three attest. " There is no mention as to the

qualificationsofthewitnesses(CruiseDigest,18l8).

Afterthisintroductionthetermseemstohavebeenusedbothmedicallyandlegally.Inthebeginningoft,he

29

nineteenth century the term ninsanity" expanded in meaning'

InLs42thereisaliteraryreferencetoan"insaneattempt r' and in 1869 another reference to an n insane

passion for athletic' (New English Dictionary on

Historicar principles, 190r). This suggests the word was

evolving from the medical description and legal apPlication

toward a more popular and general usage ' indicating

something that $ras ,strange, unusual, or inappropriate'n

In 1894 the New York Daily News rePorted the

involvement of what was described as an "insanity expeftrn

whodeclaredt'hatthedefendantwas"PerfectlySane.,This

wasfollowedwithaStorybytheWesternGazette,which

reported,.nerveandinsanitySpecialistsgivingevidenceina court 1aw" (New English Dictionary, 1901) '

the early part of the 20th century' owing to

careless use of the 1anguage, insanity became synonymous

with criminal irresponsibility (Glueck, 1925). GIueck

SPeculatesthattheterminsanitywasintroducedintothelegalsystembymentalhealthprofessionals;andthereafter

inthelaw,itsupersededsuchlegaltermsaS''madness,and,lunacy.,TheconfusionofapPlicationsoftheterm

insanitybetweenlegalandmedicalprofessionalshasalsobeendiscussedbyl'lorse,L978iShaw'Lg6g'L974'1977'

1978; Dix,198I; and Hoffman' 1981'

DictionarydefinitionsinlgsSandLgTgmakereference

Dur iof

ng

30

to lega1 meanings of the term n insani

referring to it as a descriPtion of

condition. The Random House Dictionary

insani ty as:

O ...such unsoundness of mind or lack of

understanding as to prevent one from having the mental

capacity required by 1aw to enter into a particular

relationship, state or transaction or aS excuses one

from civil or criminal resPonsibility.... Lunacy is

more commonly used in law than in medicine and applies

to mental disorders of such severity aS to render the'

person unfit to manage his own affairs or to enjoy

his liberty because of the unpredictability of his

behavior, which makes him a danger to himself or

others.

Webster,s Unabridged Dictionary (1979) states that:

. . . insanity is the unsoundness, unhealthiness, the

state of being insane, mental illness or derangement,

usually excluding amentia: and madness ' (Not a

scientific term. )

It goes on to Say that in lega1 terms it refers to:

ty" rather than

a psychiatr ic

(1968) defines

person from

incapabl e

will , ot

impl ies a

. .. such menEal unsoundness as to free a

criminal responsibility or renders a person

of making a val id 'contract, conveyance ' or

of conducting his own affairs. It usually

31

need for hospitalization.

0ther synonyms listed for insanity are lunacyl madness,

derangement, dlienation, aberration, mania, delirium,

frenzy, monomania, dementia , or parano ia. It further

states:

... insanity is the g.eneric term for mental disease in

one who formerly had mental health. Lunacy is

specifically used to denote periodic insanity.

Delirium and mania also denote excited states of the

disease. Dementia denotes t.he loss of mental

stability. Monomania is insanity uPon a singIe

subject, and paranoia is dementia with delusions.

Such definitions are confusing, vague, imprecise, and

highly dependent upon context. tleaning and usage of such

terms have changed in connotation over the last century.

Furthermore, it is clear that ninsanityr" "lunacyr" and

aSsociated terms have no sPecific relationship to standards

of psychopathologY.

Other professionals agree with the nonsPecific meaning

of the term " insanity. " Hal1eck, the noted psychiatrist

and author of Psychiatry and the Dilemma of Crime (1970),

states that terms such aS " insanityr " "mental ilIness r "

t'psychosis r " and "neurosisn may be used for Purposes of

personal communication, but they can never be applied as

absolute categories.

32

Robitscher t authot of Psychiatry and the Law (1966),

who holds both 1,1.D. and J.D. degrees, is a member of the

District of Columbia Barr and also Serves on the staff of

the Pennsylvania SchooI of I'led ic ine, goes so f at as to say

that:Insanity is not a medical or psychiatric term; it

is entirely a lega1 term' The patient may be

psychotie,butthelawactsuPontheassumPtionthat

he is not insane until there is a judicial

determination that he is insane. A hospital inmate

whoisnotpsychoticrbut:hohasbeenjudicially

declared insane, is insane so 1on9 as there has been

nolegalProceedingthatchangeSthisdetermination.(p. 54)

Biggs (1955) points out that, in attemPting to define

insanityintermsofsymPtoms,thecourtshaveassumedanimpossible role for which they have no special competence

p. 152). He also feels it is dangerous to abstract

particular mental faculties in an atternpt to arrive at a

fairverdict(p.153).HethengoesontoSay:''Inthisfield of law as in others, the fact finder should be free

to consider aIl information advanced by relevant scientific

disciplines, (p.vii). From a mental health point of

view,difficuttiesarisebecause''thelawisnotinharmony with psychiatric knowledge" (l'lacDonaId, 1958) ' and

33

the NGI tr iaI may turn into a nbattle of experts'

(slovenko, 1973). Robitscher (1966) states: "There is a

realm of law, where t,he emphasis is on 1ogic, and there is

a domain of psychiatry, where feeling holds s$ray. At

their border 1ie uncertainties and confusionn (P. 15).

Sanford (1963), who holds degrees in both medicine and law,

points out: "It is the function of medical scientists to

search for truth and the obligation of the cour'ts to

del ineate j ustice.' "However, i t is when these t$ro

disciplines meetr w€ may exPect to find confusion,

complexity, and mutual dissatisfaction' (Robitscher, 1966,

P. L2) -

Halleck (1987 ) and Goldstein (L967 ) speak to the

di fficulty of making psychiatric assessments and the

forensic determination of the presence of insanity at the

time of the alleged crime. In their oPinion it is

problematic to determine whether the mental condition of

the accused was the same at the time of the alleged offense

as it was at the time of the forensic mental health

assessment; and whether it was present to such a degree as

to sat,isfy either the l,{tNaughton or ALI test as prescribed

by the courts. They also suggest the examiners' own moral

views cannot help but play a Part in such assessments.

34

Section III:

A Comparative Description of the various 'Testsr

for Insanity in the State of California

Assessments of defendants seeking NGI defenses are not

only compl icated by the loose definition of the term

insanity, but by the shifting and unclear rules dictated

by the courts to be used by forensic ment,al health

evaluators in making their recommendations- This basic

point was made more than two decades ago by the US Court of

Appeals for the District of columbia when it noted that:

,,what psychiatrists may consider a rmental disease or

defect, for clinical PurPoses, where their concern is

treatment, may or may not be the same as mental disease or

defect for the jury's purpose in determining criminal

responsibilityn (McDonald v. united states, L962).

I'laking psychiatr ic assessments based on these rules is

therefore intrinsic to the very nature of the task, which

requires the making of dichotomous distinctions regarding

the characteristics of mental impairment. It is difficult

to relate various types of psychiatric and psychological

evidence to a specific tegal issue. This difficulty is

further complicated by the changing criteria for the

establishment of an NGI defense'

DuringthedecadeofL}TTtoLgsT,theStateofcalifornia has used a variety of additions and

35

modifications to its insanity tests. These revisions arose

out of the need to do justice in specific cases, in which

it appeared that the defendant would not receive a fair

verdict under the then existing Law.

The People v. Wolff Test of Insanity (L964) added an

alternative test to the l'ltNaughton criteria by asking the

question: "Did the defendant suffer from an inability to

appreciate the wrongfulness of the act?" This addition

remained part of the California insanity case Iaw until

1978, when the Drew Test of Insanity was added. The Drew

Test of Insanity rePlaced the MrNaughton,/ WoIf f Test with

the first part of the American Law Instituters t'lodel Pena1

Code.Test, hereafter to be referred to aS the ALI Test. It

poses the question, "Did the defendant suffer from an

inability to aPPreciate the $rrongfulness of his conduct or

(to) conform his conduct to the requirements of the law?"

This test became case law from 1978 unti! L982' when it

was followed by the return to the I"ltNaughton Test as the

result of the voters passing an initiative MeaSure,

Proposition 8 on the ballot in the L982 elections in the

State of California. This measure, PenaI Code Section

25(b), states that: 'The insanity defense shaIl be found by

the trier of fact only when the accused proves by a

preponderance of the evidence that he or she was incapable

of knowing or understanding the nature and quality of his

36

or her act and of distinguishing right from wrong at the

commission of the offensen (The PeoPle v. Wolff, 1954; The

People v. Drewt L978i The PeoPle v. Skinner, 1985).

The word ing of the l'lrNaughton Test as spelled out in

Proposition 8, with the conjunction "and7" had apparently

created a ne$/ two-prong test out of the former !lrNaughton

test" It appeared to require different assessment and

interpretation. Previously, there had been an nand,/or."

Not until 1985, in the case of PeoPle v. Skinner, 1985,

was the law clarified by the courts with the following

exPlanation:

The electorate in California did not believe that the

staters then prevail ing insanity tests needed such

clarification that it knowingly passed an initiative

wherein a man, though he could not distinguish right

from wrong at the time of an act, could nevertheless

be regarded as sane. This test read that the accused

was laboring under such defect of reason, from disease

of the mindr dS not to know the nature and quality of

the act he was doing; and that he did not know that

what he was doing was wrong. Therefore the

conjunctive "and" should be read to mean "orr" thus

permitting such a person to prevail in an insanity

defense if sufficient proofs are offered that he could

not distinguish right from wrong at the time of the

37

act- (85 DaiIy Journal D'A'R" September 15' 1985)

Thel.lINaughton/WolffTest,theDrew(ALI)Test,anda

reSurrectedl'1'NaughtonTesthavethusbeentheguidelines

forpsychiatricforensicassessmentsintheStateof

California for a decade' It is instructive to note the

wording of these tests and the changes from .,appreciatiDg,'

as in the wolff rest, to ,appreciating and conformingr in

theDrewtest,andfinallythereturntothelvlINaughtonTest which reads r" "that the accused was laboring under

such defect of reason, from disease of the mindr 3s not to

know the nature and quality of the act he was doingi or

thathedidnotknowthatwhathewasdoingwaswrong.'

.Even though these tests aIl primarily involve cognitive

aSPectsofmentatfunctioning,theterm''aPPreciate"intheWolff and Drew Tests seemed to have made minor allowances

for volitional impairment as well'

RegardingthedefinitionsofthewordS.'toknow"and,,to appreciater,, the term "know" refers to the ability to

have a clear and certain perception' to be able to

underst,and clearly, to be sure or well informed about' and

tobeawareandcognizantofiwhiletheterm''aPPreciate.,referstotheabilitytobeconsciousofthesignificance,desirability or worth of or to be able to estimate justly

(Webster's New 2Oth Century Unabridged Dictionary' L979) '

The changes of the last d'ecade reflect conflict

38

between opposing viewpoints that go back a great deal

further. Indeed r oPPosition and objections to the

r,r rNaughton Rule were raised as early as r844 by chief

Justice Shaw in Commonwealth v' Rogers on the grounds that

theso-calledninSaneperSon,"whoisabletodistinguishbetween right and wrongr mdY not always be able to control

his actions. The same objection was applied to Parsons v'

StaterlsS6rdSwellasnumerousothercasesthereafter

State v. Jones, Lg'lL'

t4audsley(1864)rthenotedpsychiatristandfounderof

Maudsley Hospital in England ' suggested that the

fundamentalteStofreSPonsibilityisfoundeduPontheconsciousnessoftheindividual.However,mosttheoristsbelieveanimportantPartofourmentaloperationstakesplaceunconSciously.Thisassumptionintroducedthenotion

that even if a person is abre to distinguish right from

wrong, he may not be able to choose what is right'

This same concept was applied to the Currans case

Chief Judge Biggs of the Third Circuit Court of

the united states, where he wrote that the jury

mustbesatisfiedthatatthetimeofcommittingtheprohibitedact,thedefendant]ackedsubstantialcapaclty,

asaresultofamentaldiseaseordefect,toconformhisbehavior' to the requirements of the law (Rubin' 1965) '

Apparently it seemed obvious Eo many' and has seemed for

(1864),

Appeal s

by

of

39

overacentury,thatdeterminationsbasedonthecognitivearea alone were inadequate'

l,lacDonaId (1958) addresses this Perceived inadequacy

by presenting an example of a man who knew that murder was

wrongrbutwhochokedhiswifetodeath'believinghewas

rea1Iy squeezing an orange' The reason given why he should

befoundNGlwasthattheaccusedwaslaboringundersuch

defectofreasonfromdiseaseofthemindasnottoknowthe nature and quality of the act he performed ot t if he

did, that he did not know it was wrong (p' 26)'

CasesbasedonthisSameprinciplebegintoaPPearin

theliteraturerincludingcasesdiscussedbyGoodwin'Alderson, and Rosenthal (1971) ' The effect of impaired

thinking on volition was described as a major issue that

needed to be addressed' Judge Bazelon suggested that by

itsmisleadingemphasisonthecognitiveelementsltherightandwrongtestrequirescourtsandjuriestorelyupon what is, scientifically sPeaking' inadequate and often

invarid and irrerevant testimony in determining criminal

resPonsibilitY. He went on to say: "The 1aw' when it

requires a psychiatrist to state in his opinion if the

accusediscapableofknowingrightfromwronglcompelsthepsychiatristtotestguiltorinnocencebyaconceptthat

has almost no recognizable reality" (Bi99s 1 1955t P' I52)'

Sobeloff (I955), former Solicitor General of the United

40

Statesladds:,Judgingtheissueofinsanityaccordingto

therightandwrongtestexclusivelyislikesayingaSa

matter of law that the only acceptable symPtom in defininq

appendicitis is a pain in the abdomen and that no other

diagnostic sign is validn (P' 793) '

From a psychological standpoint ' Rogers (I987 )

arguedthattheCompartmentalizationofcognitiveandvolitionalelemenEsintheinterpretationoftheselawsistoosimplisticandthatineverycaseboEhcomPonentsmust

be considered. He expressed the opinion that every

criminalactrequiresbothcognitionandvolition(P.842).Halleck(1971)agreeingwiththispositionobservesthat

wehavedevisednomeansofmeasuringthedegreetowhichaperson is aware of his own motivations' and that every act

carries with it a mixture of conscious and unconscious

elements (P. 210). I'1orse (I985) suggests that forensic

examinersmaylackthecomPetencetoassessvolitionalimpairmentlParticular}yiftheexaminationisdoneweeks

or even months after the commission of the act' which is

usuallY the case (P' 78I)'

CIearly the I'ltNaughton Test has been unsatisfactory

both from the standpoint of clarity and because it seems to

focus prlmarily uPon the cognitive rather than the

volitional element. Essentially' it ignores the importance

of emotional and instinct'ua1 drives '

41

cameintowidespreadUs€;therewaSanexPectationamongbothlegalandpsychiatricprofessionalsthatambiguitieswould be eradicated' The use of the ALI Test encompassed

both volitional and cognit'ive aspects' which had obviously

been a problem in the Past (Wa1ker' 1958)'

after a short period of use' dissatisfaction arose from

another area. The Hinckley case aroused a great deal of

public Prot,est, which was reftected in the literature

(Keilitz & Fultonl 1984; Stone' 1984) ' Since John Hinckley

wasacquittedundertheALlinsanitytestafterattemptingtokillthePresidentoftheUnitedStates,Rogers(1985)suggested that,, "lf the verdict was wrong' the standard was

wrongu (P. 5).

Thelawwhichhadmadeallowancesfortheinctusionof

volitionalaSPeCtsofhumanbehaviorincriminaloffensesbegan to aPPear too Ienient ' bY allowing some of these

well-publicizedoffenderstoavoidprisonSentencesthroughNGI verdicts. Even though the assumption was that the

HinckleyverdlctwasbasedonthemoreliberalALlTestlwhich included the volitional prong, later research showed

that the verdict was not based on the volitional aspect of

the law, but on the beliefs of the jurors that Hinckley

showed a defect in his PercePtions t ot the cognitive Prong

However,

Drfficurties with the Apprication of the ALr Test

When, after a 10-year research period' the ALI Test

42

(Stone, 1984). Ivlorse (1985) argued for elimination of

thevolitionalProngaSsuPerfluousbecausemostdefendantswhoarevolitionallyimpairedarealsocognitivelyimpaired(p. 780 ) .

Clearly,thewidespreadimplementationoftheALl

Test did not reduce controversy around the NGr defense' and

inCaliforniaanewdissatisfactionwiththeALltestarose. This had early focused on the Dan White case' and

thisbecameoneofthefactorsleadingtothePassageofPropositionSinlgs2,whichreturnedtheStatetotheMrNaughton RuIe, applying the cognitive prong only'

ThusrafterlOOyearsv'eavecomefullcirclebackto

arulewhichwaSconsideredunsatisfactoryshortlyafter

it was formulated in 1843' There is stil1 no clear

definitionoftermsrDordothelegalandpsychiatsricprofessionals seem to have a common ground for

understanding. There continues to be a general tendency to

permitmedicalrpsychiatric'orpsychologicaltermsand

definitionstobethoroughlyconfoundedwithlegalterms(Dix, 198I; Hoffman, 198I; Shah ' 1974' L977 ' 1978) '

Weihofen (1956), the noted legal scholar' made the

following observation :

No, there is no doubt thaE a clear and simple rule

wourd be a good thing. clarity and simplicity are

always desirable, and in law' they are rare and

43

precious jewels

produced bY the

Section lV:

Related EnPirical Studies

Inthemid.lg80sstudiesbegantoaPPearwhich

investigatedtheassessmentofcognitiveand/orvolitionalfactors of defendants seeking NGr verdicts. These studies

measured the significance of the aPPlication of the

volitional versus the cognitive Prongs in insanity

evaluations, as they appl ied to the standards of the

MrNaughton and ALI Test criteria' Rogers (1986) Proposed

criteria for assessment of volitional capacity' These

criteriarevolvedaroundbehaviorswhichwouldindicatethePresenceorabsenceofpremeditation.ononehandthis

would involve behaviors such as pr ior preParation and

attemPtstoavoidprosecution'oDtheotherhandbehaviors

which would indicate the inability to make choices '

incapacity for delay and disregard fot apprehension'

Rogers (1987) explains that both components'

volitionalandCognitive,requireacarefulintegrationofobservation and inferential data in the retrospective

assessment of rargely intrapersonal phenomena ' The

verif iab.ility of the def endantrs perceptions, cognitions '

judgementsrvolitionandemotionscanontybeinferredfrom

among the heaPs of

legal mind at work'

scor iaceous d ross

(p. 34 )

44

self rePorted data and behavloral observations'

I,lorse (1985) suggested that clinicians may not be able

toaSsessdifferencesbetweencognitiveandvolitionalaSPeCtsofcriminalbehaviorbecausetheseaspectsarenot

consistentlyrelatedtotheactingoutofeitherdelusions

orhallucinations.Thisdifficultycanalsobeobservedina study of diagnosed schizophrenics'

observationsofll6hallucinatorypatientsdiagnosedas

schi zoPhrenic, with cIearlY recognLzed cognitive

impairmenE, revealed that they may or may not be able to

resist the commands of their hallucination' If unable to

ignorecertaincommandsforviolence,theypresent

volitional as well as cognitive impairment' (Goodwin'

Anderson, & Rosenthal, 1971)' The conclusions of this

study were that the acting out of delusional or

hallucinatory directions is not consistent' with the

diagnosis of cognitive impairment and that' in the

cognitivelyimpairedrvolitionalimpairmentmaybepresentat times and absent at other times' The difficutty in

attemPting to separate the two prongs of the insanity tests

canalsobeobservedintheconflictingoutcomesofthefollowing studies.

A search of the literature prior to I983 failed to

reveal any studies pertaining to the seParation of the two

prongs, even though that was the time period in which

45

Californiavotersdecidedt'oreturnt'oEheone-Prongtestthrough ProPosition 8 ' and othe r )urisdictions were

considering the proposed truncation of the ALI test by

Iimit,ing the volitional cLause'

A study by Silver and Spodak (I983) focused on cases

reported NGI between JuIY' 1, 1981 and June 30' L982'

ThisstudywaSdoneatthel'larylandevaluationcenterforserious offenders' The object was to discover whether the

proposed truncation of the ALI test would indeed yield the

results anticipated by its proPonents who exPected that the

cognitive-only test aPPl ication would screen out less

seriouslY iIl offenders' promote more consistent

psychiatr ic oPin ion, and diminish the frequencY of

courtroom "battles of the experts" The study involved nine

examiners, all of whom were exPerienced forensic

psychiatrists, who reviewed 39

been evaluated as insane '

charts of defendants who had

In each case the chart was

assessed by three reviewing psychiatristsr olr€ of whom had

been PresenE at the original assessment period' In most

cases the examj.nees quarified as being insane by meeting

both prongs of the ALI standardr cognitive as well as

volitional. Examination of the Pattern of opinions showed

the disagreements among these experts in regard to which

Prong of the NGI test.was used in the evaluation if only

one Prong was met'

46

ExaminerL.cases:I2vo1itional:0cognitive:0both:I2Examiner 2. cases:14 vo1 itional:1 cognitive:0 both:13

Examiner 3" cases:12 volitional:1 cognitive:0 both:11

Examiner 4. cases:I3 volitional:4 cognitive:0 both:9

Examiner 5. cases:14 volitionat:6 cognitive:0 both:8

Examiner 6- cases:15 volitional:0 cognitive: I both: I4

ExaminerT.cases:I3vo1itional:0cognitive:3both:I0Examiner 8. cases: 12 vo1 itional: O cognitive: 5 both:7

Examiner g. cases:12 volitional:3 cognitive:1 both:8

(P. 387 )

It, can be seen from this chart' that exPerienced

forensic mental health experts differ in their opinions as

towhatisclassifiedaSvolitionalorcognitivemotivationand which asPect of a two pronged or sin91e pronged

insanity test. was met' It also points out that there would

be no reduction in "the battle of exPerts' as to their

opinionsrenderedintheaSsessmentofcognitiveor

volitional motivation; and that the seParation of the two

prongs in an insanity test is purely artificial'

Opinions rendered 1N=1I9) found no significant

differencebetweenthecognitiveandvolitionalprongsinthefrequencyofinsanityrecommendations'andg5tofthe

reports were in the same direction as the original

findings.Similar results were obtained from a study published

47

inlgS4byRogersrBloom'andl'lanson'inwhichtheauthorsexamined the case files of 60 Persons found to be NGI in

the oregon insanity defense system from January 1982

through Octobet L982'

I,lost frequent'Iy the court found the persons to be NGI

withoutspecifyingwhetheritwasbecausethepersonlackedsubstantial capacity to apPreciate the criminality of

conduct (volitional impairment) I or because the person

lackedSubstantialcapacitytoconformhisconducttotherequirements of the 1aw or both' In no case did t'he court

find only lack of capacity to aPPreciate criminality' even

thoughinSomecasesthejudgemadeSPecificfindingsthatthe defendant lacked substantial capacity to aPPreciate and

toconform,whileinothercaseshefoundonlylackofcapacitY to conform'

ThereSearchersfeltthatthesefindingscontradict

theprincipalargumenEforthedeletionofthevolitionalprong of the ALI Test, as well as the application of the

tlrNaughton Test without the irresistible impulse clause'

:rfthecognitiveprongwereindeedmorescientificone

would assume that its apprication could be sePerated from

the volitional prong and that skilled evaluators could

agreeaStowhatconstitutesitspresence.Theresearchersalso indicated their data suggests that rather than

limitingpsychiatrictestimonyandensuringthatonlythe

48

sickest Patients are exculpated' the truncation of the ALI

Test may have paradoxical conseguences through more

frequent battles of the experts based on less rigorous

scienceandmorevariedopinionsduetothecomplicated

attempt to sePerate the two prongs of insanity tests'

Another study investigating the application of the

cognitive and volitional prongs of insanity tests came to

different conclusions' In this study Rogers and Clark

(1985)c}assifiedNGldefendantsbythevolitionalPron9

and the cognitive Prong' Contraty to the Previous study'

theyfoundtherewere23.5tfewerNGlrecommendationswhenthevolitionalprongwasusedthantherewerewhenitscogni tive counterPart was used ' It is not clear what

accounts for this diEference' it may be that the exarniners

inthisStudyhadabetterguidelineforwhatwastobeinterpretedtobevolitionalandwhatwastobeinterpreted

as cognitive through the apPlication of the R-CRAS

decision mode1.

Di fferent results yet were obtained from a study

conducted by Wettste in, Rogers ' and I'lu1vey ( 1986 ) ' This

studyinvolvedfourforensicpsychiatriSts,whowereaskedto aPPly individually the cognitive and volitional

prongs to 205 cases in which the defendants had been

clinically evaluated to be NGI' The investigators found

that2S.LtofthecasesinvolvedthevolitionalProngonlyl

49

and only 1.5t involved the cognitive prong only'

It is obvious from these conflicting study results

that more extensive research is needed before any

meaningfulrecommendationscanbemadebymentalhealthpro fess ionals to the courts ' In spi te o f extens ive

training and practice in the field of forensic psychiatry

and psychology, there does not seem to be a clear

understandingamongprofessionalsaStowhatsymptomatology

relatestowhichareaofimpairment.l,l0reoverritmaynotbe in the realm of possibilities to separate cognition from

volition in criteria for NGI recommendations' and t'he

revisions of NGr standards through the addition or deletion

ofvolitionalaspectsofhumanfunctioningmaybeerroneousand unProduct,ive.

Factors Associated with Successful NGI Pleas

Theissuesofcourtadjudicationandrecommendation

of NGI by mental health examiners have been investigated by

a number of researchers in the last decade'

Studies ComParing NGI Recommendations

with NGI Adjudications

Studies suggest there is a high correlation between

psychiatric recommendations and court adjudication of NGI

verdicts. These findings were confirmed by Fukunaga

Pasewark, Hawkins, and Gudeman (1981); Steadman' Keitner

Braff, and Arvanites (1983); Silver and Spodak (I983)

,

,

,

50

RogersrsemanrandStampley(I984);Daniel'Beck'Herath'Schmitzlandl"lenninger(I985);PasewarklJeffEe}rand

Bieber (I987); and Boehnert (1987) ' Agreement ranged

between6gtint'heSilverandSpodakStudyinlgS3andSSt

in the pasewark et aI. study in 19g7. The increase in

agreementmayreflecttheProgressinthefieldofforensicmentalhealthassessmentsbetweentheyearslgs3andLgET,whichmayhaveledtoamoresophisticatedunderstanding

oftheaPPlicationoflegalinsanitycriteriatothementalStatusevaluations.Thisresearchwillinvestigat'ethe

agreementbetweenNGlrecommendationandcourtadjudication

in the state of californiar ds none of the other studies

invoLved statistics from this state'

Factors Associated with Successful NGI Pleas

Researchers have shown certain variables to be

associated with successful NGI pleas' Some of these factors

appear to be more consist'en-tIy associated with the NGI

defense than oEhers'

The most consistent factor appears to be the presence

of schi zophrenia or psychosis; and this was noted in

studiesbyJeffrey,RogerS,andBloom(I982);Steadman,

Keitner,Braff,andArvanites(1983),Rogers,B1oom,andltanson (I984); Rogers, Seman' and Stampley (1984); DanieI'

BeckrHerathrSchmitz'andMenninger(1985);Pasewark'Jefff€Y,andBieber(1987);andBoehnert(1987).These

52

hospital, f orensic unit in the state of I'lissouri ' These

defendantsunderwentextensiveexaminationsaroundthequestionsoft'heircomPetencytostandtrialandcriminal

resPonsibility.Seventyvariableswereabstractedfroma

simplechecklist.Theresearchersfoundthataccuratepredictionscouldbemadeinregardtopsychiatric

recommendations with resPect to comPetency as well as

criminal resPonsibil ity ' However ' the most influential

categoryinanNGlrecommendationandadjudicationispresence of a PsYchotic disorder'

Boehnert (1987) compared 45 men who were evaluated for

PossibleNGlrecommendationswiththreeothergrouPsofmen.The45menhadbeenaccusedofmurder'raPe'armedrobbery,oraggravatedassaultandbatteryinFlorida.

GrouplwasmadeuPof30successfulNGlts;Groupzconsistedofthe45menevaluatedforNGl;Group3were

the psychiatric patients' and Group 4 were 30 men serving

t.ime in jai1. The results were as foLlows:

1) A11 groups resembled each other in regard to d9er

education, and occupation' AI1 tended to be laborers who

never finished high school, and most had prior arrests'

2) Group 3, the psychiatric Patients had a lower

number of previous arrests r higher educational leve1

(mean=first year of col1e9e) ' and were predominantly

unemployed and living on public assistance'

53

3) Group 1, those found to be NGI had a low average

IQ (mean=91) when compared to the psychiatric patients

(mean=107 ) .

4) Average tvltvlPl profiles across grouPs vJere

remarkably similar, with group 1, the NGr's and grouP 3,

thepsychiatricpatientgrouphavingelevationsonscales4and8(*PsychopathicDeviatenandnschizophrenia"),andgroup 4, the jail grouP only having an elevation on scale 4

("PsYchoPathic Deviate" )'

5) Persons in grouP 2' the evaluation group resembled

grouP 3, psychiatric patients and grouP 1' NGIrs in their

tv*,rprrs according to the Gordberg rures, which labeled

profiles in all of these three groups as being

,psychiatric,, rather than "Psychopathic" patterns'

6) Group 1, NGI's and group 3' psychiatric patients

did not differ in terms of having histories of violence and

histories of Previous hospitalizaLions'

7) Group I, NGI's tended to have more previous

arrests than grouP 3, psychiatric patients' and group I'

NGIrs were charged with more serious crimes'

8)GrouplrNGlrscarriedpredominantlyschizophrenic

diagnoses (83t), while grouP 4' those in jail carried 17t'

It is interesting to note that the evaluations on the

grouP 2 men were done by a court apPointed team of experts

in Florida for a larger study on the insanity defense'

54

PsychlatrictestimonywasusedaSmitigationinthetrials,but alr of the 45 men opted not to rery on their mental

state as a defense. About half pled with the agreement

thatthedeathpenaltynotbeconsidered;theotherhalf

\^,ere sentenced to nonreduced charges '

Pasewark, JeffteYt and Bieber (I987) studied 133 male

defendants who employed the insanity plea from 1980 to I883

intheStateofColorado.ofthese,36wereadjudicatedas

insane, while g7 were found to be 9ui1ty' Considering all

defendants, they were found to be primarily sin9le'

Caucasianrsomewhatolderandbettereducatedthanthe

usual defendant group' unemPloyed at the time of the

offense, and with a history of chronic unemploymentr PEior

psychiatric treatment; drug abuse ' alcohol abuse' and

previous arrests.

NGlacquitteesdifferedsignificantlyfromthe

convicted defendants in the study by being older and better

educated. They were also more like1y to have been

diagnosed as schizophrenic and less likeIy to have had a

historY of drug abuse'

No difference was found between the groups with

resPect to all other variables examined' such as severity

of offense, ethnicity, and number of prior arrests '

55

Section V:

Llterature on the Practice and Quality

of Forensic Evaluations' Existing tttodels'

and Assessment of the Current Situation

In the 19?0s several books and monographs addressing

issuesfacingtheforensicexaminerwerepublished.Manyof these books conta ined suggestions relating to

assessment and testimony, including works by Blau 11984);

Curran, l4eGa rt! t and shah (1986); Elwork (1984); Ewing

(1985);Grisso11986);t'la1oney(1985);t'lelton'PetriIla'

PoythressrandSloboginllg8T);Shapiro(1984);Weinerand

Hess (1987). Basically' they emphasized Ehe need for a

thorough menEal status examination and a formulation as to

how the findinqs relate to the Iegal questions asked of the

examiners. They also suggested that the examiner's

understanding of t'he sPecific lega1 questions being asked

must be made clear in the rePort' which should include a

discussionofthementalabnormalitiesfoundandtheir

relationship to the 1ega1 questions'

No sPecifics as to how these assessments are made

could be located, other than the mention of "adequate

training and exPer ience" in the field of forensic

assessments (Rogers, 1984r P' 57)' Even the clinical

usefulnessofprojectivetechniquesdiscriminatingbetween

sane and insane remains unclear (Rogers & Seman' I983) '

56

Differenceq in Assessment APproaches between

Psychiatrists and PsYchologists

Psychologists and psychiatrists may differ in the

tyPes of examinations they perform in order to arrive at

their professional opinions' However' the court may use

theopinionofeitheri.ntheaSseSsmentofdefendants

anticiPating an NGI defense'

Kingsbury(1987)discussedthedifferencesinapproach

to mentar phenomena between psychologists and psychiatrists

andpointedoutthatthereareoftensubtlelunrecognLzed

differencesinintellectualviewPointsbetweenthetwoprofessionsrdsthetl'/odonotsharethesameeducation

shaping exPer iences ' He points out that PsYchiatrists

typically know more abouE the interface of endocrinology

and psychopathol ogYt whereas psychologists typically know

moreabouttheinterfacebetweenlearningtheoriesandpsychopathology. He suggests that psychiatrists take the

informaEion available to them more as a matter of fact'

while psychologists, Perhaps ' respond more tentativelyr

taking matters more as theory' He exPresses the opinion

that the medicat model of the psychiatrist often encourages

himtothinkmoreintermsofdiagnosis,whilethepsychologist often maintains a more open stance'

Rogers and Cavanaugh (1983 ) documented that

evaluations carried out by psychiatrists did not rely

57

heavily uPon Projective techniques'

In sPite of this, the conclusions

disciplines are often essentially the

Assessment IfEtruments

There have been sParse ernPirical advances ln

standardizingtheaSsessmentofcriminalresPonSibility.

InIgT4SloboginrMelton'andShowalterdevelopedtheMental State at the Time of the Offense Screening

Evaluation (t'lSE). This was followed in 1984 by the Rogers

Criminal Responsibility Assessment ScaIe (R-CRAS).

According to Rogers, this is the only measure that

addresses the validity of insanity evaluations from an

emPirical Perspective; and the PurPose of this test is to

provide a systematically based approach to evaluations of

criminat resPonsibilitY'

The R-CRAS has developed from a simple Likert-type

ratingscaleintoacomPrehensiveassessmentapproachtocriminal resPonsibilitY' The test consists of 30

individual assessment criteria' each with quantified

gradations of increasing severity' Responses to the

criteriaareintegratedthroughtheuseofthreedecision-making rnodel's. These models perta in to the ALI standard '

t.he l,l tNaughton standard, and the Guilty but lvlentally IlI

standard.

as do PsYchologists'

reached bY the two

same.

ValiditY research on the R-CRAS has demonstrated

58

adequatereliabilityoftheindividualassessmentcrit,eriawith a mean product moment correlation of 0' 58'

Reliability coefficients for the decision variables

resurtedinevenhigherreliabilitycoefficients'suchasmean kappa coefficients of O' 81' Independent clinicians

utirizing the R-6RAS showed nearly perfect agreement with a

g7*concordanceandakappacoefficientofo.94.Thetwo

primarysamplesemployedinthevalidationoftheR-CRAS

protocol were the Isaac Ray Center in Chicago and the Court

Diagnpstic Treatment Center in Toledo' Ohio' Consecutive

samplingofinsanityevaluationsweredoneatbothsitesfromJunelgg0t,oJunergg3rwherer5Tprotocorstrere

examinedbyeightforensicpsychologistsandeightforensicpsychiatristsundertheSuPervisionofR.Rogers,Ph.D.(Rogers, 1984, P' 13)'

Rogers(1984)PointedoutthelimitationsoftheR-

CRAS,statingthatindividualswithorganicimpairment

should not be assessed with this test'' He added that in

addition to counseling experience, the forensic mentar

health professional employing this test must have had

extensive experience with forensic evaluations as well as

suPervision from a qualified professional (p' 2)'

StatisLicsontheuseoftheR.CRASintheassessment

ofNGl.clientsarenotavailable,butitaPPearSthatcohesive expert suPervision for varied court apPointed

59

forensic mental health

practical. The Present

the tYPe of tools used i

Examination Procedure

TheliteratureofferslittleinformationaStohowa

psychiatristorpsychologistproceedsintheevaluationof

a client. However the process was described during informal

discussions between January and June L987 ' with two

forensic examiners from a county other than the one

investigated in this study'

The decision to appoint psychiatric examiners is made

bythejudgeinopencourtwetlbeforethepsychiatristknows of the case' The defense counsef in consultat'ion

withhisclient,hasreachedadecisionthatapleaofNot

Guilty by Reason of Insanity should be entered' This may

bedoneatthetimeoftheinitialarraignrnentoratanypreliminaryhearing.Attimesaninitialpleaismodified

to include the insanity defense even during the guirt phase

of the trial '

TheclerkofthecourtPreparestheorderandforwards

it to the county clerk' The county clerk makes a copy to

send to the examiners named by the judge' Placing a seal

attheEoPindicatingthatitisa,correctcoPy',ofthe

original, which the county clerk keeps on file'

When the examiner receives the letter ' he is informed

exPerts may not be available or

research, however, will investigate

n the decision-making Process'

60

t,hatitisacommunicationfromtheSuperiorCourtofCalifornia,withthecountyanddepartmentidentified.

Included with the defendantts name is a case number and a

dateatwhichtherePortistobereviewedinoPencourt,

alongwiththeinformationthatitreferstoPenalCodeSection1026.Thecurrentformletterusedwithlittle

variationfromonecountytothenextinformstheexaminersthat each is aPPointed:

to examine said defendant and rePort to this

court in wri ting under the statutes and with

reference to the question below:

... was the offense using the test established

.California Penal Code Section 26(b) effective June

L982, to wit:, (b) In any criminal Proceedingsr including any

juvenile court procedure' in which a plea of not

guilty by reason of insanity is entered' this defense

shall be found by the trier of fact only when the

accused person proves by a prePonderance of evidence

.. ,- -- ^x^ ,r.. in.-aoable Of knowing of

understanding the nature and quality of his or her act

and of distinguishing right from wrong at the time of

the commission of the offense.''

(Pleasenote:InlightofPeoplevs'Weber(1985)170C4

3d, L3g, the two elements of this test are to be considered

by

o

61

in the disjunctive ('or') rather than the conjunctive

(nand") Pursuant to the historic |4'Naughton standard of

insanitY. ) (See APPendix' )

(During the period in which the ALI standard was used'

the letter reflected a different test for insanity')

Whentheexaminerreceivesthisletter,heknowsthat

he has a certain time to comprete his examination and

return a report to the court' Usually this ranges from 2

to4weeks.AttimestheorderwillofferSomeinformationaStowhetherthedefendantisatlibertyorwherethe

defendant is housed' If this information is insufficient

(and often a defendant may be moved from one jail to

anotherormaybeotherwisedifficulttolocate)'acallto

theCourt,thepublicDefender!soffice,ortheprivate

attorney will Provide an address'

Whenatliberty,thedefendantusuallycomestothe

examiner's office. In the large number of cases in which

the defendant is in jail or a mental hospital, the examiner

must 90 to see the patient' The court order provides

authority for the examiner being allowed into the jail or

thehospitat.UsuallytheexaminerisgiventheSame

accommodationsasavisitingattorney'withaprivate

examining room' There are times ' however ' when the

condition of the defendant does not permit a standard

interview format. A violent' aetively assaultive defendant

62

in prlson, f or example I InaY be examined while in shackles

with a guard standing by' Examiners te11 of some

interviews conducted through the food slot of the thick

metal doors in high security areas of prisons'

Intheorderfortheexamination'thecourt'makesno

specifications as to just how the examination wilI be

conducted,SolongaSthebasicquestionsareanswered.Examinersspokeoflettersrangingfromasingletypedpage to reports of more than 1O pages' Some provide

detailed psychiatric histories' while others concentrate

uPonthereasonsbackinguPtheirconclusions.Altbegin

with identifying data, including d9€, marital status'

educational background, and occupation' There is a

descriptionofthecurrentoffense'usuallyarecordofprevious arrests, and always an account of Previous

psychiatric treatment, if any' The mental status

examination is detailed, particurarry when pathology is

noted. The absence of certain signs and symptoms is also

noted,suchashallucinationsordelusions.|'1ood,

orientation, and reality testing are assessed ' both in

regard to t.he present and in reference to the time of the

offense.upr in which

A PsYchiatricnothing in the

FinallY the

reasons fot his

diagnosis maY or

examiner Provides a summlng

conclusion are sPelled out'

may not be given, although

63

court

tha tthat

order asks for one' Several examiners clearly stated

the court was not particularly interested in a concePt'

had nothing to do with the legal sanity question'

The reports are typed and submitted in triplicate to

thethe court, with one copy for the judge' one for

District Attorney, and one for the defense attorney'

I'lost examinations do not result in court testimony by

the examiners. Often both the defense and Prosecution wilI

stiPulatetothecontentsoftheletters'allowingthecourt' to accePt them at face value without cross

examination. This will often be the case when both

examiners agree that the def endant $'as sane ' and t'he

defense decides to try it on t.he issue of guilt or

innocence. Here forensic testimony would serve no Purpose'

At times the Prosecution wiIl also accept the reports

without testimony if the defendant is thought to have been

Iega1ly insane at the time of his offense' This would

usually occur in a minor offense or in one involving such

obvious mentsa1 disorder that the prosecution has no

interest in challenging it'

When the two examiners disagre€r there is stiIl not

alwaysneedfortestimony.Ivlostoftenathirdexaminerwill be named, and the case will be decided on the basis of

his agreement or disagreement with one of the other

examiners.

64

Whenbothexaminersfindthedefendantsane,andthe

defense still wishes to proceed with an NGI plea' the

defensecounselmakesamotionfortheaPPointmentoftwomore examiners, often supplying names of his own choosing'

Inthisv,aytestimonyfromoutsideexaminers,notonthe

court list, will be allowed' There are some examiners who'

as a matter of personar policy, wilr only testify fcir the

defense in such circumstances' Testimony of the additional

experts is accepted on the same basis as that of the

original court-aPPointed examiners'

when court testimony is required, the examiners are

asked to aPPear during a second phase of the trial

described as the 'sanity phase ' " as distinct from the

,,guiIt phase." Either court examiner may be subpoenaed by

either the defense or prosecution, and examiners with whom

IhavediscussedthesubjecthJereconsistentinemphasizingthat they must not become so drawn into the case as to have

a significant emotional investment in its outcome' As paid

agents of the court' they are expected to remain as

objective as possible and to answer questions fully'

withouEregardforwhetherthemaEerialintroducedintoevidence helps or damages one side or the other'

Since most expert testimony is given sometime toward

themiddleofatrial,theexaminersareoftennotpresentatitsconclusionandattimesneverevenhearaverdict.

65

Theblllfortheirtestimonyissubmittedtothecourt

rather than t'o either the defense or Prosecution'

Assessment Di f f iculties

A number of expert' observers have pointed out that

evenunderthebestcireumstances,thereareproblemsinherentintheProcessbywhichaProsPect.iveNGlclient

is evaluated. Gutheil and Appelbaum (1982) and Rogers

(1986) suggest that the entire process of NGI assessment

remainslargelyidiosyncraticandinvalidatedandthatthere is 1ittIe syst,ematic study as to what procedures are

usedandhowclinicaljudgmentsaremadebyforensicmental

health professionals' Grisso (1986) Point'ed out that

mentalstatuSexaminationsareoftendoneweeksrlllolrthSrand sometimes even years after the offense has been

committed, and he exPresses the opinion that' such

procedures extend far beyond the usuat clinical role of

psychotogists and psychiatrists' Halleck (1986) also

observed that, even if their memories and thought processes

are relatively intact, defendants are seldom accurate

rePorters of Past behavior' Often their wish to influence

the forensic examiner will result in distortions'

66

CHAPTER 11I.

METHODS AND PROCEDURES

This study focuses on the interaction between

psychology, psychiatry, and the 1egal system from January'

1g781 through December, Lg87' The period is of special

significance because it contains two 5-year intervals in

which two different tests of legal sanity were used as the

basis of NGI verdicts in the State of California' From

LgTsthroughlgszaformoftheAmericanLawlnstitute

standard was used, which contained both a volitional and

a cognitive component for the aPPraisal of mental

dysfunctionr leading to an NGI verdict by the court'

HoweverrinLgs2thistestwasabridgedtocontainonlythe cognitive component as an NGI criterion fot the court'

Thistruncationoftheinsanitytestwaspassedbythecalifornia voters in tg82 as ba110t initiative Proposition

8, which returned the staters insanity test to a form of

the old M'Naughton Rule. The purPose for this action was

theopinionbytheproPonentsthataninsanitytestwhichrecognized both volitional and cognitive mental impairment

aSNGlcriteriawastooliberal,resultingintheabuseofNGI verdicts. The lvl'Naughton RuIe had been in place in the

StateofCatiforniainvariousformsfromls6guntill9TT,at which time it was abandoned in favor of the ALI Rule

67

after much deliberation by the courts'

This study was designed to investigate the application

ofthesetwolegalinsanitytestsandtheirtelationshiptoforensicaSseSsmentsofPerSonsanticipatinganNGl

defenseintheStateofCaliforniabetweenlgTSandl9ST.TheCountyinvolvedinthisstudyhasapopulationof303r50O.Itconsistsofsevensmalltomedium-sizedcities and large areas of rural communities'

The first queStion asks: What percentage of NGI

reCommendationsbyforensicmentalhealthexaminersresultinanNGlverdictbythecourtandisthereadifferenceinthePercenEageofrecommendationsandverdictsdependingon

theapPlicationofdifferentinsanityteStS?Inaddition,were reports of the two examiners for each case

ordinarily in agreement with each other? And what could a

profile of NGI defendants look like?

The second research question asks: What factors

does the forensic examiner consider in forming his opinion

astowhetheradefendantisNGl?Thesubquestionfocused

uPonwhetherdifferentfactorswereaSsoCiatedwithNGl

recommendations depending uPon the test used'

Thethirdquestionasks:Whatkindsofproblemsare

forensicexpertwitnessesfacedwithwhenmakingthe

translation between Iegal and psychiatr ic,/psycholog ical

concePts of insanitY, and what do theY base their

68

evaluationsupon?Thesubquestionconcernstheways

whichexaminingconsiderationsdifferedbetweent1"1!Naughton and ALI tests '

This research employed both quantitative and

qualitativeprocedures.Dat,awaSderivedfromtwoSources:

r) document aEY, in the form of completed forensic

evaluations performed by four forensic mental health

evaluatorsrand2)se1f-report'intheformofinterviews

withtheseSamefourforensicmentalhealthexPerts.onehundred and thirty-six forensic mental assessments

submit.ted to the county Superior Court t"ere analyzed

quantitatively,andtwointerviewswitheachofthefour

forensic exPerts were analyzed qualitatively'

observationswerealsocollectedrelatingtofactors

PertainingtotherelationshiPbetweenNGlrecommendationsand successful NGI pleas ' and a comparison was made

betweencriteriausedintheassessmentspriortoandaftertheabridgmentofthe}egalNGltestthroughremovalofthevolitional Prong.

The quantitative approach when applied to the forensic

assessments enabled this researcher to pinpoint most

frequently identified factors which were extracted from the

forensicmentalhealthaSsessmentletterstothecourt.Some of these factors appeared to have been relied uPon by

theevaluatorsinthedecisionmakingProcess'leadingto

in

he

69

theformulationoftheirNGlrecommendationstothecourt.ComparisonsweremadebetweenthefourevaluatorsaSwell

as between their tecommendations and court decisions'

The qual itative aPProach was used wi th the

interviews, which were studied in order Eo identify

CommonEhemesamongtheforensicexPertsrelatedtotheir

difficulties in adjusting concePts of psychopathology to

changingNGlrulesdictatedbythecourts.Byinterviewing

each forensic mentat health exPert' the researcher was able

toelicitandcomParemainthemesrelatingtoaspectsof

assessment and cri ter ia of relationships between

psychopathology and law' In this part of the study the

researcheremployedaqualitativemethod'because'aswasobservedbyRogersthenotedresearcherinforensicpsychology' "Little is known about the actual clinical

process of assessing insanity' and there has been litt1e

systematic study of what procedures are used and how

clinical judgments are made in NGI recommendations., (L987,

p. 844).

This aPProach enabled the forensic

exPerts Eo speak of their exPeriences without

themintoamodelcreatedbytheresearcher.A pilot project vias conducted in which 20 randomly

selectedsampleforensicaSsessmentswerereviewedfromthe

filesoffourcountyforensicmentalhealthevaluators'

mental health

having to fit

70

and initial categories for the analysis of forensrc

assessments were taken frorn this pilot' It turned out

that these categories were also very closely matched with

the criteria which already existed in the theoretical

models which have been discussed in the 1i E'erature review'

Howeverlitmustbenotedagainthatthereisnoliterature

revealing whether forensic mental health examiners pay heed

in any significant "vay to these models' or whether these

models are in fact descriPtions'

tnformal interviews were also conducted with two

forensicexpertsfromacountyotherthanthatwhichis

rePresentedinthisstudy.Theseinterviewsaidedinthedevelopmentofthesemistructuredinterviewstobeusedinthis studY.

Forensic Assessments

SamPle

Dataforthispartofthestudywastakenfrom136

forensic assessments of 68 NGI defendants (each assessed

by two expert's) submitted in the form of letters to the

countycourtbyfourcourt-aPPointedforensicexperts

between the time period of January L, Lg78 and December

3},}gET.ThecourtcustomarilyaPPointstwoexaminersPercasefromalistofthosefoundtobequalifiedbythecourt. These examiners perform the assessments and send

7L

thei r tecommendations to the court in the form of

unstructured letters. The four examiners Participating in

thisstudyhadbeeninvolvedwithforensicassessmentsfor this court for a period of more than to years and have

performedmentalstatusevaluationsundertheALlaSwell

thel.llNaughtonTests.TheyalsoaretheonlyexaninerswhohavebeenconSistentlyinvolvedwithassessmentsforthe

county court during the ten year period used in this study;

consequently,theyarefamiliarwiththechanginglegalNGI criteria and its aPPlication to psychopathological

concePts.

There was no issue of confidentiality around the use of

thesedocumentsrassuchevaluationsareconsideredtobea

matter of public record, and this researcher was able to

examine arl records in the county courthouse. At times

extracts of these reports are even published in

newspapers. The examiners, however' were aPproached by

this researcher, in order to obtain their permission for

interviewsinanattemPttoclarifytheaSseSsmentprocesSand its difficulties'

InallcasesthedefendantswereexaminedPursuantto

ordersfromtheCountySuperiorCourt,whichalsopaidfor

these evaluations, thereby making this tyPe of defense

availab}etoallsocioeconomicclassesandtoboththedefense and Prosecution' Examinations solicited and Paid

72

forbyeitherthedefenseorprosecution--whichoccurredin

only a few of the cases surveyed--were not used in this

study. Such reports might be seen as biased because the

examiners \dere hired by one side and used for testimony

only Lf they seemed to be helpful t'o the side requesting

the examination.

This researcher corlected copies of all letters to

the court written by the four forensic experts for the

SPecifiedtimeperiod.Everyassessmentforthistimeperiod Pertaining to Section 1026 of the Penal Code of the

StateofCalifornia(casesinvolvingthequestionofNGl)

was taken. When all NGI assessment letters from the four

foreqsic examiners were gathered' names of evaluatees were

matcheduntiltworeportsperevaluateehadbeenlocated.A11 examiners and evaluatees were then assigned a number

for identification' Such cases where the second examiner

was noE one of the four examiners in this study t'ere

excluded. During the tO-year period of the study there

wereanumberofotherexaminerswhoworkedonlybriefly

for the court. rt was supposed that they may have lacked

familiaritywiththecourtIsexpectationsandinstructionsto interpret mental health assessments in relation to

changing IegaI NGI criteria' The four forensic mental

health experts in this study were the only ones who

performedassessmentsfortheentirelO-yearperiod.

73

Preliminary studies indicated that

rePorts meeting the criteria outli

all of these rePorts v'ere used '

The information relevant to this study and available in

the forensic reports was placed into four major

categories. A11 of these categories were recorded on

individuar coding sheets (see appendix E). These

cat.egoriesaredemographicinformation,self-rePortby

crients in regard to history, self-report by clients in

regardtoeventsatthetimeoftheoffense,andclinical

observaEionsbytheforensicmentalhealthexaminerS.These categories were further divided into sub-categories'

Prel iminary data extracted from the pilot study

indicated that in most cases examiners spoke to these

categories in their reports to the court'

The demographic subcategories are sex' a9€'

educationallevel,andemploymenthistory.The self-report by clients category in regard to

historywassubdividedintohistoryofdrugabuse,historyof alcohol abuse, history of psychiatric treatment'

previous arrests, and Previous convictions'

Theself-reportbyclientinregardtothe..timeofthe

offenser! category was divided into the following sub-

categories:drugusepriortocriminaleVent,alcoholusepriortocriminalevent,ha].lucinationsduringorpriorto

t.here were 68 Pa irs of

ned for this studY, and

74

criminal event, d€lusions during or prior to the criminal

event, subjective view of sanity at the time of Ehe

offense,andrecollectionofoffense.Theterm"priorto" in this category pertains to a time period of not

more than 48 hours.

SeIf-rePort relating to

medications around the time

no ted .

The clinical observation category was subdivided as

follows: Ievel of COOperation t otientation as to Person'

place or time, Presence of depression' Presence of

anxiety, Presence of paranoia ' Presence of memory

impairment, and presence of impaired affect'

The DSl,l III-R diagnosis was recorded when noted on the

report.PreliminarystudiesbythisreSearcherindicatedthatsincethecourEdoesnotsPecificallyrequestanofficial PsYchiatr ic diagnosis, some forensic mental

health reports do not sPeak to this category'

AnattemptwaSmadetorecordanddifferentiate

between the severity of crimes between NGIrs ans non-NGIts'

aswasdonebyBoehnert(1987),whoreportedthatNGllswerefoundtohavecommittedmoreseriouscrimesthannon-NGIrs. This categor!r however, had to be abandoned, since

not aIt rePorts contained the necessary information'

ThedataabstractedfromforensicreportswaShand-

the use of PsYchotroPic

of the evaluation was also

75

recordedontotheprecodedchecklistdevelopedbythis

researcher (see Appendix E) ' When the forensic examiner

omittedanyprecodediteminhislettertothecourt,au0,was assigned to that sPace'

Ana lYs i s

Findings in each of the categories discussed above

were recorded and presented in percentiles as they rerate

to recommendations to the court of NGI and not NGI'

This information spoke to the research question of what

factorswereassociatedwiththeforensicmentalhealth

examiner t s recommendations'

VerdictswereobtainedfromtheCountySuperiorCourt

and vrere added to the check list' The percentage of

agreementbetweenforensicmentalhealthexPertsandjudicial decision was comPuted'

Furtheranalysiswasbasedondifferentiatingbetween

these outscomes for the time period covered by the ALr test

(I978-1982)andthelvtlNaughtontest(1982-I987).Levelsof

agreement between various examiners, such as psychologist

verSuspsychiatristandpsychiatristVerSuSpsychiatrist,vrere also tabulated in percentiles' Results obtained

fromthesedatashowedwhethertherehadbeenadecrease

in NGI adjudication since the passage of Proposition 8 in

the Sta'te of Californiar ds was the intention of the

voters.

76

Interviers rith Forensic Examiners

Subj ects

Thisresearcherconductedtwoone-hourinterviews

with each one of the four forensic mental health

evaluators,whohadagreedtoparticipateinthisStudy.

Thesefourexperts$,ereselectedbecausetheyweretheonlyoneswhohadbeeninvolvedwiththeCountySuperiorCourtfortheentireperiodcoveredbythisStudyandbecause

theitassessmentsweretobeusedinthisstudy.Theyhad all been involved wi th assessments and NGI

reconmendations based on both the ALI and ttl rNaughton

standards. Three of these exPerts are board-certified

psychiatrists,andoneisalicensedclinicalpsychologist.

Alloftheseexpertswererecruitedthroughpersonal

conEact and informed that the purpose of this study was to

contribute to the growing body of knowledge regarding the

application of concepts of psychopathology to changing

legalaspectsofNGlcriteriaandtheensuingdifficulties.Theyweretoldthattherewouldbetwointerviewsofone

houreachandthattheinterviewswouldfocusontheir

exPerienceandopinionsinrelationtothedifficultiesin translating concePts of psychopathology into the

changing 1egal insanitY tests'

77

The Interview

Permissionhadbeengrantedfortheinterviewstobe

recorded on audiotape' They took Place in the offices of

each forensic exPert and were not longer than one hour in

duration.The interv iews were conducted in a semistructured

formaE (see APPendix F) ' The major question concerned

how psychopathology is translated into 1ega1 tests of

insanity. Four major topics' derived from the research

questionsrwerecoveredintheinterviews:1)themethod

andfactorsusedbytheexaminertoevaluatewhetherthedefendantisNGI,2)effectsofthechangeinlegaltestsfrom,Lg78to1987,3)therelationshipbetweenlegalandpsychoPatholog ical concePts, and 4) difficulties

encountered in the examination'

Theresearcherbegantheinterviewwiththerequest

that the mental health exp-ert sPeak to the factors he

considersinformingopinionsinregardtothementalstateof the accused, how he translates his knowledge of

psychopathology in order to aPPly it to the legat sanity

tests and what difficulties he has encountered

process. The interview schedule contained a list

topics 'and probe questions ( see Append ix F) ' The

interviewer allowed room for the subjects to bring uP

issues in the course of responding Eo the major questions'

1n

of

thislead

78

Topics not covered spontaneousry were brought up by the

researcherinanaPProPriatemannertomaintaintheflowof

the interview. Probe questions were emPloYed as

apPropriate in order to clarify and elaborate on the

topics.Thisapproachmadeitpossiblefortheforensic

expert,stoexpresstheiropinionsinregardtochangesintranstation of Psychiatric insanity criteria to lega1

insanity criteria Pre- and post-January' 1983'

Thesecondinterviewwasusedforfurtherclarificationofmajorthemesextractedfromthefirstsetofinterviews

of all four forensic exPerts'

Allinterviewswerehand-transcribedfromthe

audiotapeswithin24hoursbythisreSearcher.AudiotapeswereidentifiedwiththeexPertIsidentificationnumber

onlyandwillbestoredforaperiodof5months,afterwhich the tapes wirl be destroyed. The anonymity of the

participantsisfurtherProtectedthroughthefactthatthe

countyinwhichthisStudyisconductedisnotreferredtoby its name.

Ana IYs i s

Followingthefirstinterviewwitheachsubjectthe

researcher made a summary of themes' Interviews with

subsequent subjects were compared noting similarities and

differences among the categories which emerged'

79

The second interview with each subiect allowed the

researchertofollowuponunclearmaterial.Athernatic

analysiswaSmadeofthedifferentcategoriesofmaterial from the interviews in order to classify the

information. The refined set of categories was then

appliedtotheinterviewmaterialtoinsurethattheyaPproPriat.e}yrepresentedtheinterviewdatawithregardtothe issues at hand. The data was then interPreted in an

attemPt to answer the research question as to how the

appl ication of psychiatr ic concepts relates to NGI

criteria, what factors the examiners consider in making the

translation between 1e9a1 and psychiatric concePts, what

problemstheyarefacedwithwhenmakingthesetranslations,

andhowthesedifferbetweenthedifferentlegalinsanity

laws as stated in the research questions'

ThetwoSourcesofinformationobtainedfromthis

research, that from the analysis of the letters of

assessment results by the forensic mental health experts as

wellaSdatafromtheinterviewswiththefourexpertsare

d iscussed in the following chapter ' Find ings are then

related to the existing literature as well as to the

research questions stated in this study'

80

CTIAPTER IV.

F INDINGS

This chapter is divided into two Parts' The first

part presents the quantitative analysis of letters of

forensic examiners, and the second part deals with the

qualitative analysis of interviews with the forensic

examiners.

Part 1

Letters of Forensic Examiners

The data analysis is based uPon a total of 68 cases'

Thedatawillbepresentedinthreesections.Thefirst

section deals with comparisons among experts !

recommendations and court decisions'

The second section Presents prof i les of the

defendants, comParing them on the basis of NGI

recommendations and across time periods' These profiles

arebaseduponthecategoriesaddressedintheforensicexaminations, which consist of self-reported demographic

data, self-report in regard to mental status at the time

oftheoffense,andclinicalobservationsbythe

evaluators. The purpose of the profiles is descriptive'

ThemaihConcernhereistoestablishwhetherthereisadifference in the profiles among defendants meeting

8l

criteria for each insanitY test'

InthethirdsectiontheSamecategoriesofdatafrom

the forensic evaluations are looked at from a different

pointofview.Inthissectionthefactorsfoundtobe

addressed in the forensic examiners t evaluations are

analyzedinrelationtotheexaminersIrecommendationsandcomparedforthetwotimeperiods.Thefindingsineachcategory are compared to defendants found NGI and not

NGI. The purPose of this section is to establish what

factors are associated with an NGI recommendation'

Section I:

Ccmpariscn of NGI Recommendations among

Examiners a

For the time period rgTg through Lggz, 45 cases met

the criteria for this study as described in the

methodology. These cases involved 90 Ietters written to

the Superior Court, with two ]etters per case from two of

the four forensic mental health exPerts ' The Ietters

consisted of one to five page rePorts of findings '

conctusions, and recommendations to the court based on

determinationsoftheexaminees,mentalstatusatthetimeof the i r offenses ' Recommendations dur ing the fi rst

period of this study were based on the American Law

InstituEe (ALI) Test of lega1 insanity'

82

start of

this study

For the time period 1983 through 1987, 23 cases met the

criteriaforthistudy.ThesecaSesinvolved46letters

written to the Superior Court with conclusions based on

requiremenEs of the I'1'Naughton Test' ds reinstituted by

PropositionB,the:-gs2Californialnitiative,andappliedto legat j.nsanity cases in thi s study beg inning at trhe

1983. The disposition of all cases examined in

can be found in Tables I and 2t discussed below'

Disposition of Cases by l"lentaI HeaIth Exaniners

Table 1 ind icates the re were 22 fewe s NGI

evaluationsbythefourforensicmentalhealthexaminersparticipating in this study between the aPPlication of the

ALI and the I'lrNaughton insanity tests' Since this figure

Table I

D i spos i t. i on o f Cases By lvlenta 1 Hea 1th Exami ne rs

ALI INSANITY TEST MINAUGHTON INSANITY TEST

Tgta-tgaz 1983-1987 )

Total number ofcases examined

Di sagreementsbetween bothexaminers

Agreements betweenboth examiners

Not recommended forNGI bY both examiners

Recommendedfor NGI bY bothexaminers

45

I (2r)

44

r8 (4It )

26 (s9r )

23

1 (ar)

22

t2 (s6t)

10 (46t)

83

doesnotrePresentthetotalnumberofNGlevaluationsforthese time periods, but only those performed by the four

experts'noconclusionscanbebasedonthesefindingsinregardtotheactualnumberofevaluationsperformed.Disposition of cases bY the Court

Tabl e 2 reveals that the Percentage of all cases

adjudicatedNGlduringthelgs3-lgSTtimeperiodwhichactually went to trial fe1I from 57t to 50t'

Itcana}sobenotedthatthecourtfounddefendants

tobeNGlwhowerenotrecommendedforanNGlverdictbyanytl,roofthefourmentalhealthexaminersundertheapPlication of both insanity tests' however these cases

doubled from one case (6t) in the first period to two cases

(17t) in the second Per iod '

Aqreement among Examiners

It i.s obvious from Table 3 that there is minimal

disagreement among the forensic mental health examiners'

with agreement 1eve1s of 97 '78 for the fi rst time per iod

and 95.7t for the second'

Aqreement among Psychiatrists and Psychol iSTS

The only disagreement in the first time

between two examining psychiatr ists ' whi Ie

disagreement in the second time period was

psychiatrist and a PsYchologist'

per iod was

the onIY

between a

84

Table 2

DisPosition of Cases bv Court

ALI TEST M.NAUGHTON TEST

(

ease DisPosition

Total number of 45 23

cases referredfor evaluation

Cases withdrawn L (2*) 2 (9t)

after evaluation(not recommendedfor NGI bY bothexaminers)

Cases Put on Pro- o (0t) I (4t)

bation after evalu-ation(not recommended forNGI bY both examiners)

Cases going to trial 44 2A

NGI Ad'iudication

Toral number of 25 (56t) I0 (44t)

cases receivingNGI adjudicationout of total examined

NGI adjudication of 25 (578) 10 (50t)

Eotal going to trialI

NGI adjudication 1

of case of disagree-ment between bothexami'ners

NGI adjudication of l/LB (6t) 2/L2 (I7*)

cases not recommended forNGI bY both examiners

NGI adjudication of 23/26 (g2*) 7/7 (I00t)

cases agreed upon asNGI bY both examiners

85

Table 3

Number of cases examined

Number of cases agreed uPon

by both examiners beforeadjudication

Agreement 1evel among examiners

TEST)

44/45=97.7* 22/23=95.7*

both examiners for each time

23

22

*1per iod

case of disagreement betweenhas been removed '

Considering the fact that these experts have been

involved with forensic evaluations for the same court for a

period of more than 10 years' this result is not

Surprising.FurtherStudieSinthisarea,investigating

levelsofagreementbetweeninexperiencedevaluatorSandin

other jurisdictions, mlght render differenL results'

OnIy one psychologist was Part of this study '

Therefore percentages of agreement and disagreement

between psychologists and psychiatrists were not calculated

since any results based on such a small sample would be

meaningless.

ALI 'T'ETCT YI ' NAUGHTON

t97

85

Aqreement between Forensic I'{entaI Health Examiners

and the Court

ForthetimeperiodLgTs-1982|23personsoutof26

PerSonSrecommendedforNGlbytwomentalhealthexaminersreceivedNGladjudicationbythecourt(seeTables2and

4) . In addition r oD€ person out of 18 persons not

recommendedforNGlbythetwoexaminerSreceivedNGladjudication by the court (Tab1e 2). It is interesting to

notethattheonecaseofdisagreementbetweenthetwo

mentalhealthexaminersalsoreceivedNGladjudicationbythe court (Tab1e 2) '

Table 4

Aoreement among Examiners and Court

Number of cases agreedupon bY examiners beforeadj ud ication

Cases adjudicated inagreement with examiners(NGr )

Cases adjudicated inagreement with examiners(Not NGI )

Agreement betweenexaminers and court

23/25=92*

l7 /LA =94t

92+9422=93X

7 /7=l0OZ

lO/12=831

I00+83 z2=91.5*

ALI TEST M'NAUGHTON TEST198 3-r

22

87

For the time period 1983-1987 all seven persons

recommended for NGI by two mental health examiners received

NGI adjudications by the court (Table 2) ' An additional

2 cases were adjudicated NGI out of the 12 cases not

recommendedforNGlbytwomentalhealthexaminersTable

2). The one case of disagreement among the two examiners

forthistimeperiodalsoreceivedNGladjudicationbythecourt (Table 2).

Agreement between mental health examiners and the

courtoncasesrecommendedforNGlshowed92*agreement

during the apptication of the ALI Insanity Test and I00t

agreement dur ing the appl ication of the lvl'Naughton Test

(Table2).Therewasanlltincrease(from6tto17t)in

the number of cases not recommended for NGI by mental

health examiners, (Table 2), which received an NGI verdict

by the court dur ing the appl ication of the l'1 rNaughton

InsanitY Test-

Agreement levels between examiners and courts of 93t

for the first time period and of 91'5t for the second

period(Tab]e4)areconsistentwithstudiesbySilverand

Spodak (1983) and Pasewark et al' (1987)' since this is a

studyof,theevaluationprocessandthereissuchahighleve1 of agreement between court and forensic mental health

examiners, the following results witl be presented based

on NGI and non-NGI recommendations by the examiners'

88

In the fol

as NGI and

recommendations

lowing presentation defendants referred to

non-NGI will be based on examiners'

rather than court adjudication'

Section 2:

Profiles of Defendants

Tables 5 through IO list categories in terms of

numbers and percentages of cases of those found to be NGI

andnon-NGlbythementalhealthexaminersduringthe

applicationoftheALlaswellasthel'1'Naughtoninsanity

tests.Sectionsaredividedinto:demographicinformation

based on self-report, self-report of psychiatric history'

previous arrests and convictions ' self-report of

psychiatricstateattimeofoffense'useofpsychotropic

medicationsaroundtimeofeva].uationbasedonself-report,

cl inical observations by mental health examiners ' and

psychiatric diagnoses'

Thetablesarebasedupontotalswhichincludeon}y

cases of agreement between two forensic examiners' One

case of disagreement during each time period has been

dropped. Therefore, the totals are 44 instead of 45 for the

firsttimeperiod,and22insteadof23forthesecondtime

period (see Table I)'

Based on Self-Re rt

Even though Table diverse grouP of

of recommendation,

5 is

group,

made uP of a

r eg a rd lessdefendants, the entire

89

tends to

NGI's and

mean age

Table 5. )

be male. Mean ages ranged between 27 and 30 for

26 Lo 29 fot non-NGI rs' In both time periods the

of NGI's was one year higher than non-NGIrs' (See

Table 5

DemograPhic Information Based on Self-Report

ALI TEST I,1'NAUGHTON TEST

Total number of casesagreed uPon bY bothexaminers

Recommendations bY

both examiners

Number of cases

Sexm-af eFemale

rc.lv(eanRange

RaceffiT-teBlackHispanicOther

NGI

26

(24) sst(2) st

30L9-62

(11) 25*(14) 32\(1) 2*(0) ot

NOT NGI

18

(16) 36t(2) st

2919-54

(11) 25*(s) 11t(1) 2Z(t) 2t

(13) 3ot(s) 118(0) 0t

NGI

10

(ro ) 46t(0) ot

27L9-46

(s) 232(4 ) 18t(1) sB(o) ot

(4 ) lBt(s) 23\(1) s8

NOT NGI

L2

(10) 46t(2) et

2619-43

(5) 23*(7) 32*(0) 0t(0) ot

(s) 23*(7) 32*(o) 0t

Educational levelffi (ro) 23*High school graduate (15) 349

coitege Graduate (1) 2z

Yed (8) 18ted (11) 25*

(7 ) 16t

(e)(3)(0)

(4)(3)(3)

(4)(e)(s)

9t2L*lrt

18rt4t14t

4It14t0t

90

Educational 1eve1s were also similar in both periods'

with the only college graduate in each time period found to

be NGI.

Self-reports with regard to employment

increase in chronic unemployment among those

be NGI in the second time period (9t to 419),

chronic unemPloyment went from 27* to 59*'

Self-Report of Psychiatric History and

Previous Arrests and Convictions

During the application of the ALI test, 48t of those

found to be NGI had a history of psychiatric treatment,

while only 25* of those not found to be NGI also had such

history. During the aPPlication of the Ivl'Naughton Test, aIl

those attempting an NGI defense, whether found to be NGI or

not, reported histories of psychiatric interventions.

IntheCategoriesofarrestsandconvict,ionstherewas

only a smalI inerease in a history of convictions (18t-27t)

Report of drug use around the time of the offense was

higher among NGI I S than non-NGI's in both time periods;

while rePort of alcohol use was lower among NGI's in the

first time period and the same among NGIrs and non-NGIrs in

thesecond.AsmightbeexPected'thenumberof

defendants reporting the presence of hallucinations and

delusions was higher among those being found to be NGI

ind icated an

not found to

while overall

in the second time period among non-NGIrs (see Table 6)

Self-ReportofPsychiatricstateatTimeofoffense

91

than those

t ime Pe r iods .

be NGI bY the examiners

7.)

in bothnot found to

(See Table

Self-RePort of Psvchiatric History'

Previous Arrests and Convict.iqqgALI TEST

Total number of casesagreed uPon bY both examiners

Recommendations bY NGI

both examiners

Number of cases 26

Psychiatric historY'Has had in- or out- (21) 48*

Patient treatmentin Past

Has nia neither (5) lIt

Previous arrests or convictionsArrests ontY (4) 9tConvictions (10) 23*Neither (G2) 27\

NOT

18

(11) 25*

(7 ) 16*

7Zr8t16r

NGI

10

(10 ) 46r

NOT

L2

(12) sst

0t(0) (0) 0t

14*27*I4t

(3)(8)(7)

(3 ) 14t(s) 23*(2) et

(3)(6)(3)

whilemoreNGl.sinbothtimeperiods(39tand32t)

viewed themselves as insane than non-NGI I s ' a larger

percentage of those found not to be NGI (272) also viewed

themselvesaSinsaneinthesecondtimeperiod,thaninthe

first (IIt) - Reports of recollection of the offense

di f f ered between the two tirne per iods ' with a sl ightly

larger percentage of non-NGI defendants ,32Z) rePorting no

recollectionofthecrimeinthesecondtimeperiod,than

non-NGIrs reported in the first (21t)'

92

Table 7

Self-Re rt of Psychiatric State at Time of Offense

ALI TEST IVI'NAUGHTON TEST(

Total number of cases 44agreed upon by both examiners

Recommendations bY NGI NoT

both examiners

Number of cases 26 18

Drug useprior toNone

Alcoholprior toNone

Delusions within 4B hoursprior or during offense (14)None (12)

Subjective view of sanitYsane (9)Insane (17)

Recollection of crimeYes (13)Partial (7 )

None (6)

NGI NGI

22

NOT NGI

L210

within 48 hoursarresr Q) 16t (s) lIt (5) 23* (3) 14t

(19) 43t (13) 3Ot (s) 23* (9) 4rt

use within 48 hoursarrest (3) 7* (8) 18t (3) 14t (3) 14t

(23) s2\ (10) 23* (7) 32* (9) 41t

Uallucinations within 48 hoursprior or during offense (10) 23\ Q) 5tNone (16) 36t (16) 36t

32* (3 ) 7t (9 ) 41t27* (15) 34t (1) 5t

2LZ (13) 3ot (3) 14t (6)39r (s) lrt (7) 32* (6)

(5 ) 272 (2) 9t(4) 18r (10) 46t

(3 ) 14r(9) 4r*

30t16t14*

(9 ) ztg(0) 0r(9 ) 2t*

(s) 23* (4)(4) 18r (1)(1) sr (7 \

27*27t

18t5t

32*

93

Use of PsychotroPic t'ledications at Time of Offense

Based on Self-RePort

The use of psychotropic medications in these

evaluationsisbasedonself.reportbythedefendants.It,

mustbenotedthatthepercentagesofdefendantswhoweretaking psychotropic medications and were found to be NGI by

the examiners dropped from 34t to 23* between the two

time periods, while report of psychotropic medication use

bythosefoundnottobeNGlinthesecondtimeperiodincreased from 5t to 32*' (See TabIe 8')

Table 8

Use of PsychotroPic Medications Around Time Of

Evaluation Based On SeIf-RePort

Total number of casesagreed uPon bY bothexaminers

Recommendations bY bothexaminers

Number of cases

NGI

26

NOT

(2) 5t

(]6) 36t

t218

NGI

IO

NOT

Taking PsychotroPic medicationswithii 48-hort= Prior to PsYchi-

"t.i" examination (15) 34t

Not using medications (I1) 25*

(s)

(s)

23*

23*

32*

23t

(7)

(5)

ALI TEST( r978-

MINAUGHTON TEST( 1983-19

94

The following observations are assumed to Play a

significant part in the formation of the forensic

examiners' recommendations to the court.

Clinical Observations by tutental HeaIth Examiners

I',1ost defendants seeking an NGI defense are willing to

cooperate with the forensic mentat health examiner, and

there appears to be 1 i ttle d i ffer ence betvreen NGI I s and

non-NGIrs between both time periods. (See Table 9.)

There do not appear to be any strong differences

between the leveI of orientation between the two tirne

periods among those recommended for NGI. It must be noted,

however, that NGI's showed better orientation in the first

time period (46t) than in the second (272).

Evidence of depression among NGI's fe11 from 16* in

the first time period to only 5t in the second period with

increased evidence of depression (7t to 18*) among those

not found to be NGI in the second time period. The finding

of anxiety showed a decrease among the entire group of

defendants in the second time period, with only (5t) of

NGI I s (formerly 252) and none of the non-NGI ts (formerly

(5t) showing this symptom. There is a sli9ht increase in

the finding of paranoia among NGI's (25*-272) as well as

non-NGIrs (Ot-9t) in the second time period'

95

Table 9

Clinical Observation b Mental HeaIth Examiners

ALI TEST MINAUGHTON TEST

Total number of casesagreed uPon bY both examiners

NGI

26

(22)(4)(0)

(20) 46t(6 ) 14t(0) 0t

(7 ) r6t(re) 43t

(1I) 25*(15) 34t

(11) 25*(1s) 34t

(9) 2L*

(17 ) 39t

(13) 30s(r3) 3ot

18

(r5) 35t(0) 0t(2) 5t

(17 ) 39t(o) 0t(1) 2*

(3) 7z(15) 342

(2) st(16) 36t

(o) ot(18 ) 418

(2) st

(16 ) 36t

(4) 9t(14) 321

NGI

10

(9 ) 41t(0) 0t(1) st

(6) 271(3 ) 14t(I) s*

(1) st(9 ) 41t

(1) st(9) 2L*

(6) 27*(4 ) 18t

(s) 23*

(s) 23*

L2

(r0 ) 46t(2) et(0) ot

(8) 36t(4 ) 18t(o) o

(4) ]8t(8 ) 36t

(o) ot(11) 50t

(2) 9t(r0 ) 45t

(s) 23*

(7) 322

(0) 0*(12) s5t

NOT NOTRecommendations bYexaminers

Number of cases

Level of cooPerationGoodFairPoor

Level of orientationGoodFairPoor

Evidence of dePressionNone

Evidence of anxietYNone

Evidence of ParanoiaNone

Evidence of memorYimpa i rmentNone

Evidence ofimpaired affectNone

50r9t0t

(s)(s)

23*23*

96

Evidence of memory impairment showed a slight increase

(21t-238) among NGI's, while this finding increased from 5t

to 23t among non-NGI I s between the two time per iods.

Impairment o f affect is considered a most significant

indicator of mental iIlness. While it is Possible to

report hallucinations, delusions and paranoid thoughts,

faking an affect impairment so as to be convincing to a

clinically trained and experienced evaluator would be

extremely difficult, if not impossible. The presence of

this symptom showed a slight decrease (30t-23t) among NGIrs

as well as non-NGI's (9t-0t).

Defendant's Psvchiatric Diagnosis

Reported to Court bY Examiners

The present study does not d i fferentiate between

specific diagnoses given by the examiners. only the

presence o f a diagnosis listed in the Diagnostic and

Statistical l.'lanua1 is considered an important f actor ' This

will be referred to as psychiatric diagnosis in this

research. Among the 136 let,ters examined for this study,

only one letter contained a vague description of mental

illness, such as "this defendant may be suffering from a

type of mental disorder." Consultation with the examiner

revealed Lhat this type of description does not constitute

a psychiatric diagnosis-

97

Analysis of psychiatric diaqnoses given to the court

bytheforensicexaminersshowedthatNGlIshaveahigherpresenceofdiagnoses(52tand45t)inbothtimeperiods

than non-NGI's (7t and 27*). There is a 20-percentage

point increase in the presence of a psychiatric diagnosis

amongdefendantswhowerenotfoundtobeNGlbytheexaminers. (See TabIe 10' )

Table 10

Defendantrs Psychiatric Diagnosis

Reported to Court bY Examiner

ALI TEST

Total number of casesagreed uPon bY bothexaminers

Examiners I

recommendation NGI

25

NOT NGI

I8

NOT NGI

l2

46* (6 ) 2720r (6 ) 27\

NGI

10

Psychiatric diagnoses rePortedto court bY mental healthexaminers (23 ) 522 (3 ) 7*None (3) 7* (15) 34t

(10 )(0)

T,IINAUGHTON

98

Section 3:

Factors Associated with NGI Recommendations

The purPose of Tabte 11 is to show if there is a

relationship between factors in the examinerst letters and

the i r recommendations. Di fferences in percentages in

Table 11 are taken from Tables 5-10. only factors

indicating a di ffetence of more than 15 percentage points,

favoring NGI I s, between NGI t s and non-NGI 's are 1 isted on

this table and are considered to be meaningful'

Factors Associated with Insanity Tests

Sincethedemographicinformationraswellaspsychiatric and drug history, is based on self-report by

the defendants, it may not be entirely reliable except as

an indicator of how such defendants describe themselves'

The findings in the areas of clinical observations can be

considered conclusive in their association with the

recommendations of NGI and non-NGI to the court'

As can be seen in Table 11, there are some differences

in the factors associated with the recommendation of NGI by

the forensic mental health examiners based on the

application of t.he two different insanity tests. It must

be noted, however, that the factors associated with a

severe Eype of mental illness such as delusions and

hallucinations in the self-report category have remained

the same in both time Periods'

99

Tab1e 1I

Factors Associated with Insanit Testso-wETaF rhere--IE aD fe rence of at Least I5 Percentage

Points Between an NON-NG

M' NAUGHTON INSANITY--TEEIALI INSANITY TEST78-L982

DemograPhic setf-rePort fa

r983-19

*Di ff. Factor

tDiff.

Factor

SexMaIe 50

RaceBlack 2L

ComPletion of high school 2L

Psychialric self-rePort fa

HistorY of PsYchiatric 23

treatment

Hallucinations

Delusions

Insani tY

Partial recollection ofoffense

Taking PSYChotroPicmedications

CIinicallv observed factors

20

25

16

2L

Not chronicallYunemPtoYed 23

37tla1e

Halluc inations

Delusions

18

27

18

25

28

15

29

AnxietY

Parano ia

Ivlemory imPai rment

Impaired affect

Parano ia

Impaired affect

Psychiatric diagnoses

18

23

I9Psychiatric diagnoses 45

I00

In the area of clinical observations the finding of

paranoia and impa ired affect as well as the use of

psychotropic medications has also remained stable

throughout both time periods' It aPpears from the overall

changes in Percentages, though some differences are very

sma11, that the examiners became more conservative in the

secondperiod,andthatithadbecomemoredifficulttoconvince them of NGI.

Part 2z

Interviews With Forensic Expert Witnesses

Factors considered in forming opinions with regard to

defendants,sanityatthetimeofthecrirne,difficultieswith assessments, and recommendations to the court will be

discussed in the summary of interviews with the forensic

mental health evaluators and in the following chapter'

FoIlowing the analysis of factors obtained from the letters

of recommendation to the court by the four forensic

examinersparticipatinginthepresentresearch,eachofthe examiners was interviewed ' The major question

addressed by the experts concerned the manner in which

psychopathology is translated into Iegal tests of

Discussion related to the following topics:

1. fvtethod and f acto rs used by the examiner toevaluate whether the defendant is NGI'

2. Effects of the change in legal tests from 1978

sanitY.

through I987.

r01

3. Relation ofpsychoPathologY '

4. Di fficulties

legaI concePts

encountered in the

to concePts

examination.

of

AtI examiners were congruent with each other rn

statingthementalstatusexaminationsaredoneintheSame

manner as those used for psychiatric diagnostic evaluations

inanon-judicialsetting.AllexaminerS,psychiatriSts

as well as the psychologist' use their own format' which

doesnotfollowanyofthestandardorrecommendedmodels

discussedinChapter3'However'thesedoincludemostof

thecategoriesSuggestedbyotherresearchers.oneexaminernoted that everyone arr ives at his ol"n f ormat' He stated

that he usually starts his letters with a quote from the

defendant. Two letters per case per time period (a total

offourlettersontwodifferentcases)canbefoundinAppendix G of the Present study'

A11 examiners emphas Lzed that they pay careful

attentiontotheaffectofthedefendants.Allstatedthe

opinionthataffectisoneofthemostrevealingfactors,

aroundwhichfakingamentalillnessisvirtuallyimpossible.

Other imPortant

recommendations include

factors associated with their

the rePorted use of medications'

I,Iethod and Factors used by the Examiner

Evaluate Whether the Defendant is NGI

r02

IeveI of orientation, and Presence of delusions'

hallucinations,andparanoidideation.Allexaminers

emphasi zed that they pay special attention to the

possibility o f organic impairment. A11 indicated that the

leve1 of cooperation and speech Pattern are often an

indicator of organic impairment. one examiner indicated

that cooperation may be poor if the paranoid level is high

in the defendant-

A11 examiners stated that they do not use any

psychological tests in order to arrive at their opinions'

Two psychiatrists stated they would consider these to be

helpfuI, but the time factor in making NGI assessments

limit.sthemfromdoinganyextensivetesting.onepsychiatrist stated that he employs short psychological

tests in his assessments, but these may differ from case to

case. Another psychiatrist stated that psychological tests

are not meaningful to his evaluations. The psychologist

suggested that the time lapse between the crime and the

time of the administration of a psychological test may

render the test meaningless; therefore he does not employ

testsinhisaSsessmentsofNGlclients,eventhoughhemakesfrequentuSeofpsychologicaltestsforevaluationsother thai those for NGI'

Ef f ects of CngryIn Legal Tests f ro

Allexaminersfeltthechangeinthelawi

103

the

beginning of I983 has made a difference in their

recommendations of NGI. Even though the psycholog ical

assessment proeess rema ins the same as before ' the

requirements of the law have created a narrower scope of

NGI cr i ter ia. Two psychiatr i sts ind icated that this

differenceisVerysmallandthatthereisverylittlechangebetweenthetwotyPesofinsanitytestslwhilethethird psychiatrist exPressed the opinion that for some

cases there might be a fairly significant difference

between the aPPlication of the two insanity laws'

AIl agreed that there has been a change in what the

court prescribes as its insanity rule' The ALI Test as it

was used prior to 1983 apPeared to be more liberal in its

aPPlicationbyconsideringvolitionalaswellaScognitive

aspects, stating that a person is not resPonsible for

criminal conduct if aE the time of such conduct' as a

resultofmentaldiSeaSeordefect,helackssubstantialcapacity to aPpreciate the criminality of his conduct or to

conform his conduct to the requirements of the Iaw' A11

exPertsagreedthatpersonsfallingunderthesecondProng

of this test (to conform) are suffering from a mental

condition that is not Permissible as NGI under the law

afterlgs3,eVenthoughmentalimpairmentmayclearlybepresent.

104

one examiner indicated that almost no one met the

requirements of Ehe 1aw during the period immediately

af te r teinsEitution of the l'lrNaughton Test, when both

prongs of the test had to be met. He emphasized that this

test required that the defendant be incapable of knowing

or understanding the nature and quality of the act AND be

incapable of distinguishing right from wrong at the time of

the commission of the offense. According to this examiner,

after the cl-arification of this apparent error in People v'

Weber (I985) by the court, and subsequent aPPlication of

thistestwiththedisjunctiveoRratherthantheconj unctive AND, recommendations of NGI became more

aPPropriat,e.TheotherthreeexaminerSdidnotbelievethis was an imPortant factor.

Relation of Legal, Concepts to Concepts of Psychopatholo

A11 examiners stressed the importance of

understand ing the 1ega1 issues in the i t r ecommendations '

one psychiatrist pointed out that Ehe court does not ask

for the assessment in terms of concePts of psychopathology,

butratherthatitexpectstheexaminerstobeabletotranslate their findings inEo legal concepts. He also

pointedoutthatthisunderstandingofthelawisessential

to the formuLation of the NGI recommendation and that this

knowledge is often missing in NGI recommendations made by

r05

psychiatrists and psychologists who are not oriented to

this area and, therefore' make Eheir recommendations

based on the concepts of psychopathology only. He stated

that this is the reason why the court uses expert

witnessesacquaintedwiththerequirementsofthelaw.All

expertssaidtheydealwiththisproblembymakingtheir

recommendationsthroughtheuseofatwo-stePProcesS.ThefirststePwasdescribedaSapsychiatric,/psychological

evaluationthroughtheapPlicationofprinciplesofpsychoPathologY; the second step involved the

translation of their findings into the requirements of the

1aw.

AII examiners agreed that concepts of psychopathology

related to the diagnosis of mental illness are not the same

as legal concepts of insanity' Examiners arrive at NGI

recommendations by apPlying 1egalr not clinicalr rules of

insanitY.

Difficulties Encountered in the Examination

Atlexaminerspointedoutthatthetimelapsebetween

thecrimeandthepsychiatricevaluationcanbeamajor

difficulty in assessing the mental status of the accused at

the time of the offense ' At times the psychiatric

evaluationisdonemonthsorevenyearsafterthecriminalevent. In many cases the accused was taking psychotropic

med ications and discontinued their use prior to the

105

criminal event. Then ' after being incarcerated ' the

accusedmayagainbetakingmedicationsatthetimeofthepsychiatric evaluation' In such cases the police report or

witnessaccountdescribingthebehavioroftheaccusedimmediately prior to and following the arrest can be

g reatly reveal ing t'o the examiner '

AllexaminersfeltthatarepeatoffenderattemptingtopleadNGl,whoisfamiliarwiththelegalreguirements

of an NGI verdict, may complicate the evaluation' One

psychiatrist suggested that a client who is well coached by

hisattorneyinthelega}requirementSofinsanebehaviorcan also be difficult to evaluate' In such cases the

affectaEthetimeofEheevaluationisofmajorimPortance.

Overall, all examiners stressed the importance of a

thorough understanding of both the law and mental

illnesses. A11 also indicated that years of exPerience in

dealing with large numbers of mentally ilI Persons is of

great vafue in being able to make NGI assessments and

recommendations '

107

CHAPTER V.

DISCUSSION

Thischapterdiscusseseffectsofchangeinlegal

insanityintheStateofCaliforniaandrelateddifficulties in the determination of NGI' The t"'o tests

used during the period of this study were the ALI Insanity

Test, which was in use during the first 5-year period in

this study from Lg78-tg82, and the I'ltNaughton Insanity

Test,whichreplacedtheALlTestandwasinuseduringthe

second five year period of this study' 1983-1987 ' The

l,l,Naughton Test continues to be used at the present time'

.Thestudyaddressedthefollowingresearchquestions:

What Percentage of NGI recommendations by forensic mental

healthexaminersresultinanNGlverdictbythecourt,andis there a difference in the percentage of recommendations

andverdictSdependingonthe.appticationofthedifferent

1ega1 insanity tests? To what degree do the

recommendations of the examiners agree with each other?

WhatistheprofileofthosedefendantswhoseNGlpleashave been successful?

Whatfactorsareassociatedwiththeforensicmental

health examiner's recommendations of NGI and not NGI to the

court? Is there a difference in the factors discussed in

the rePorts by examining forensic psychiatrists and

r08

psychologists in regard to their recommendations of

pleasdependentuPonwhetherthel'1'NaughtonTesEor

American Law Institute Test is used?

What kinds of probl ems are fo rens i c

psychiatric,/psychologicalexpertwitnessesfacedwithwhen

mak i ng the translation between legal and

psychiatric,/psychological concePts of insanity; and upon

what factors do they base their recommendations? In what

$/ays do examining considerations differ between the use of

the MtNaughton Test or ALI Test?

Thediscussionwillbedividedintofoursections.

The f irst section discusses NGr pleas r E€comlllendations and

adjudication. The second looks at the defendant profiles'

and the third addresses the factors associated with NGI

recommendations. The final section takes up the problems

encountered bY the exPerts ' Results obtained from the

quantitativePartofthisstudy,rePresentedinTablesl-I1

are integrated with results obtained from the qualitative

partofthisstudy.Thequantitativepartconsistsofthe

categoriesobtainedfromtheletterswrittenbythe

forensic mental health examiners to the cour t ' The

qualitativepartconsistsofinformationobtainedduring

the interviews with the forensic mental health examiners'

NGI

the

109

Section I:

llGI Pleas, NGI Recommendations and Adjudication

Reduction in NGI Pleas

Table I (preceding chapter) shows that during the

second S-year period, with the 14'Naughton Rule serving as

the test of 1ega1 insanity' the four examiners

participating in this study saw fewer attempted NGI

pleas.Thisreductionrhowever'doesnotProvetherewas

anactualreductioninNGlevaluations'sincethefour

forensicexpertsParticipatinginthisstudywerenott.he

onlyonesinvolvedinforensicmentalhealthevaluations

during these time Perlods'

However,therewere45defendantsexaminedduringthe

first5-yearperiod,and23wereevaluatedbytheSamefourexpertsduringthesecondperiod.Althoughovera}1fi9uresforcasesdealtwithbythecourt\"erenotavailablefortheseperiods,itwastheconsensusofpeopleworkingwith

the court that Ehe volume of court cases' civil and

criminarrhadincreasedsignificantly.Atthebeginningof

theStudy(1987),therewerefourSuperiorCourtjudgeszwhiletherewereSevenattheendofthestudyperiod(I987), suggesting the case load had increased greatly'

The forensic examiners suggested in the interviews

that there are several possible explanations for the

aPparent reduction of defendants attempting to plead NGI'

I10

oneexplanationisthedifferenceinstandardsappliedfrom

thefirst5-yearperiodtothesecond'Indeed'

proposi tion 8 , which brought a return to the 14 rNaughton

Rule for the second period, was intended by its proponents

to accomplish just this 9oa1, to reduce the use of a

defense considered to be widely abused'

Theexaminersemphasizedthattheguidelinesofthe

I,l'Naughton Insanity Test at least aPpear str icter in that

they exclude volitional components of the behavior leading

to the crime. They felt this would 1ike1y have given

defense attorneys the impression that there was less chance

of SucceSS for an NGI plea, and thus discouraged its use.

The examiners, however ' did not believe the

different standard lvas a significant factor in reducing the

number of cases requested by the court to be evaluated for

NGl.TheySuggestedthateventhoughthetwostandards

used substantially different language and were based on

slightlydifferingconcePts,inactualapplicationthey

resultedineSsentiallytheSameConclusionforeachcaSe.

The examiners were unanimous and relatively outspoken on

thi s issue.

On the

had sensed

dealing ' wi

awa r ene ss

contrary, all the examiners agreed that they

a changing attitude among defense attorneys

th potential NGI clients, based on the growing

that defendants found NGI actually sPent more

II1

rather than less time in confinement' while nearly all

defendants sentenced to state prison have time removed from

theirmaxirnumsentencesforgoodbehavior(reductionsof

5otofthemaximumtimeforfirsttimeoffenders),those

entering the mental health system under NGI verdicts were

perceived as more 1 ikely to stay the fulI term' In

addition,thoseNGlfoundtostillconstituteanimminentdanger of physical harm to others could have the ir

commitments extended by the court indefinitely in 1- or 2-

yearincrements.Theseactions'however'mustbebased

uPon recommendations by treating doctors at the state

hosPi tals .

Consequently, the perception has grown ' dS the

examiners related, that an NGI Plea' if successful' might

resultinthedefendantspendingmoretimeinconfinementthan if he were simply found guilty oE the same offense'

TherewasalsoSomebeliefamongtheexaminersthatthere

has been a general lessening of faith in the efficacy of

thementalhospitalinbringingaboutchangesinmental

conditions.

Changes in Recommendations by Examiners

Table 1 shows that the Percentage of NGI

period.

agreement,recommendations was lower dur ing the second

Recommendations of NGI, with bot'h examiners in

LL2

decreased from 59t of the total examined in the first

period, to 46t for the second time period. This would

seem to relate to the more stringent standard of the

lil'Naughton Test used dur ing the second per iod , a1thou9h,

as noted above, the examiners expressed some doubt as to

whether this factor made a significant differenee.

Differences in NGI recommendations based on the ALI or

14r Naughton standards were anticipated by the proPonents

of Proposition 8, who wished to reduce the scope of what

constituEed 1ega1 insanity by returning to the I'lrNaughton

teSt. It seems ironic that this desired reduction, based

on public emotionalism over well-publicized cases, returned

calif,ornia Insanity Law to a 1aw instituted over 100 years

dgor and now considered outdated by 1ega1, medical, and

psychiatr ic professionals, and earl ier rePlaced with the

well-researched ALI TeSt. The forensic examiners expressed

opinions that only in rare c-ases could a defendant found

NGI under the ALI Test not be found NGI under the

M'Naughton test. An example quoted by one examiner

described a defendant who knew that his crime was virong and

underStoodit'simplications,butwhofelthewasunabletokeep from committing the crime' Under the ALI Test' his

inability to conform his behavior to the requirements of

the law would have made him 1ega11y insane, but the same

consideration did not apPly with the l'l rNaughton Test '

113

NGI Adjudication

Theexaminerssuggestedthattheslightreductionin

the percentage of cases adjudicated NGI' as rePresented in

Table 2, which felr from 56t of those cases going to trial

with an NGI plea, to 44X in the second t.ime period, might

beduetotheapparently.morestringentstandardduring

the second 5-year period after the l'ltNaughton rule !''as

reinstituted. It is interesting to note in Table 2

that, dur ing the use of the more l iberal ALI Test r oI1€

case (6t) of those not recommended fot NGI by the two

mentalhealthexaminerswasfoundtobeNGlbythecourt'whileduringtheuseoftheMlNaughtonTest,twoCases(17t) of those not recommended by the two mental health

examiners were found to be NGI by the court. This figure

may reflect the more stringent apPlication of the

M'Naughton Insanity Test by the examiners and a sliqhtLy

moreliberalinterpretationofthistestbytheCourt.Two of Ehe examiners exPressed a belief that these

court decisions of NGI in cases where the examiners made no

suchrecommendationwerebasedonfacEorsrelatingto

ultimate disposition of the defendant' It was felt by

theexaminersthatthetwodefendantsfoundNGlbythe

courtwereactuallymoreaPPropriateforthementalhea}thsystemthantheprisonsystem,buttheytechnicallydid

notqualifyintermsoftheNGlevaluation'Thecourt'

114

however, had the flexibilitY

disposition in mind.

In sPite of the reduct

the aPPl ications of the

percentage of adjudications

reported in the State of

(1987), who rePorted a

attemPting NGI.

to make a determination with

ion in NGI adjudications between

two 1egal insanitY tests, the

remained higher (441) than that

Colorado bY Pasewark et aI '

27* adj ud ication among those

Agreement among Examiners

Thelevelofagreementbetweenforensicmentalhealth

examinersofgT.Ttduringthefirsttimeperiodand95.Tt

during the second period (Tab1e 3), was not surprising to

theexaminers.AllexaminerSexpressedabeliefthatthepublicperceivestheevaluationproceSstobesubjective

and nonscientific. They suggested this perception may be

based on the observation of recommendations made to the

court by inexper ienced examiners ' who were hi red and

privatelypaidforbythedefenseofwealthyclientsin

ordertorecommendNGladjudicationbythecourt.They

insisted,however,thatwell-trainedandexPeriencedexaminers, such as those apPointed from a list maintained

by the court r who have been found to understand the

aPplicationofEhelaw,willcometovirtuallyidentical

conclusions. This result ' however ' may differ in other

lls

countieS.Furtherresearchmightestablishifthereisa

differenceinothercountiesand/orStates.Wedonotknow

if any special circumstances were working in the court

which led to such a shared approach to examining NGI

de fendants .

Sincethesampleofforensicmentalhealthexaminers

consistedofonlyonepsychologistandthreepsychiatrists,thereisnotenoughinformationtosuggestthatthereis

moreorlessdisagreementbetweentwopsychiatristsonagiven. case than between a psychiatrist and psychologist'

Agreement among Examiners and Court

Table4indicatesahighlevelofagreement(93tand

91.5t)betweenmentalhealthexaminersandcourtforthis

countyduringbothtimeperiods.Otherstudieshavealso

indicatedhighagreement]'evelsinthisarea,rangingbetween 69* (Silver a Spodak, 1983) and 88t (Pasewark et

al.11987).TheexaminerswhoparticipatedinthisStudyfeltthattheiragreementlevelwasbasedonalongworkingrelationship with each other r as well as a thorough

understandingoflegalrequirements.(oneexaminerholdsa

lawdegreerandtheothersareexposedtolegalcriteria

intheirfieldsofemploymentotherthanasforensicevaluators).

115

Section 2z

Profiles of Defendants

self-RePg$g

A comparison of profiles of defendants found NGI and

non-NGI by two forensic mental health evaluators revealS

differences between the two time periods aS indicated in

the Previous chapter and displayed in Tables 5 -10'

sex and age are not significantly different from one

time period to the next; however, all defendants in both

groups were mostIY male (Table 5)'

It is interesting to note that during the first period

of this study, more blacks (32t) than whites (25t) were

found to be NGI by the examiners (Table 5). Thisr however,

reversed i tsel f in the second time per iod to NGI

recommendationsoflStforblacksand23*forwhites.since the numbers of arrests for blacks and whites for this

time period were not available, it is not known if there is

a greater likelihood for defendants of either race to be

found NGI by the examiners, even though this type of

defense is obviously avaitable for black defendants in this

california county. Halleck (1971) expressed the view that

"in many jurisdictions it would be quite unlikely that an

uneducated Negro offender would plead insanity' and even

more unlikely that he would be found not guilty by reason

of insanity" (P. 2L).

1r7

either race.

out of the two cases in 1978-1982 which were rePorted

by both examiners to be NGI but which were not adjudicated

as NGI, one defendant was black and the oEher was white' In

the 1983-1987 time period, the two cases found to be not

NGI by rhe mentaL health examiners but adjudicated NGI by

the court were both black, indicating that the court gave

additionaloPPortunitiestoreceiveanNGlverdicttoFuture research in this area may clarify

whether there is a difference among NGI recommendations and

adjudications among various races'

Educational leve1 (high school graduation) was higher

among NGIrs (34t) than non-NGIrs (11t) in the first time

period (Table 5). This result concurs wiEh findings by

Pasewark, JeffreY et a1. (1987 ) ' In the second time

period, however, educational 1evel (high Scool graduation)

waSslightlyhigheramongnon-NGIls(32t)thanNGIIs

(23r). There is also a suggestion that those with a

college education in both periods were more 1ikely to be

found NGI (TabIe 5) -

EmploymenthistoryrevealedthatNGlIsinthefirst

time period were more like1y to be chronically unemployed

(18t) than non-NGI rs (98) ' The same finding was

discussed by Pasewark, J€ffrey et a} ' (1987) ' In the

second time period, however, non-NGIrs were more 1ikely to

be chronically unemPloyed (41t) than NGIrs (18t) (Table 5)'

118

since the above factors are based on self-report, and

examiners have litt1e oPPortunity to verify what they are

told in the interviews, it may be PosSible that defendants'

reports are inaccurate, and that attempts are made by the

defendants to give self-serving information'

past history of psychiatric illness or treatment was

present in aI1 of those examined during the second Period,

whether or not the examiners recommended an NGI verdict

(Table 6). During Ehe first time period it was more likely

that the NGI defendants (48t) had a psychiatric history

thanthenon-NGldefendants(25t)(Tab1e5).ThisSuggeststhatthemorestringentstandardsinthesecondperiod may even have influenced some attorneys not to

suggest an NGI evaluation if Ehe defendant had no past

history of mental ilIness.

Twooftheexaminersinterviewednotedthatattorneys

had aPParently grown more cautious in advising their

clientsinregardtothepossibilityofasuccessfulNGlplea; however, i f a defendant has had a history of

psychiatrictreatment,psychiatricevaluationfora

possible NGI recommendation is customary' For the first

timeperiod52*ofNGI'sandTzofnon-NGIlsreceivedapsychiatricdiagnosisbytheforensicmentalhealth

exPerts,whileforthesecondtimeperiod46*oftheNGIls

and 272 of the non- NGr's received a psychiatric diagnosis

1t9

(TabIe 1O). This suggests that there are defendants now

who are more mentally i11, but who do not meet the

criteria for NGI.

use among aIl examinees was more

second period (37t) than in the first

The examiners suggested several

Repo rt of d rug

frequent during the

(27*) (Tab1e 7).

reasons for this increase. They felt that it is Iikely

that the use of cocaine has increased' According to them'

this drug is more often associated with criminal behaviors

under its influence than heroin, which probably decreased

inuseduringtheSameperiodinwhichcocaineincreased.Druguseandalcoholusearealsomorecloselyassociated

with demographic locations such as the county of this

study. Pasewark, Jeffrey et a1. (1987) reported their

findingsfromastudyinColoradowheretheyfoundthat

NGI'sarelessli.kelytobedrugusersthannon-NGIls.

Thisstudy,however,foundthatinbothtimeperiods

rePorteddrugusewaShigheramongNGlIs(16sand33t)than

non-NGIrs (I1t and 14t)"

Hallucinations and delusions, based on self.report,

constitutedamajorComponentofdefendantprofiles.These

areexpectab}eandaSsociatedwithpsychologicalaSwellaS

Iegal insanity. There vrere slight increases in both of

these categories among NGI ' s (hallucinations 23*-27*',

del-usions 32t-41*) from the first time period to the second

L20

among NGI defendants. The report of hallucinations anong

non-NGI's rose from 5t to 9t; and the report of delusions

rose from 7t to 14t between the two time periods (Table

7). The finding of no delusions among NGI 's dropPed from

27\ to 58 between the time Periods, while no

hallucinations dropped from 35t to I8t (Table 7 ) . II

appears from these results that the examiners became more

conservative in their NGI recommendation during the second

time per iod and that delusions and hallucinations became a

more important factor without which NGI recommendation by

the examiners became less 1ike1Y.

Clinical Observations

clinical observations by the forensic mental health

examiners show only a st ight increase in parano id

delusional thinking (Tab1e 9), which increased among NGIrs

from 25* to 27\t and among non-NGIrs from 0t to 9t.

However, the absence of paranoia among NGIrs decreased from

34t to I8t between the time periods, again indicating a

more conservative approach to NGI recommendation by the

examiners in the second time period. It is notable that

there is a substantial increase in memory impairment among

all examinees (261-46*) between the two time periods' while

increase in memory impai rment among NGI I s ( 2I*-23*)

remained fairly stable but showed and a much 1ar9er

L2l-

Einding a1 so

inc rea se ( 5t to 23t) among non-NGI I s (Tabte 9) ' This

suggests more conservative NGI

by the examiners during the second timerecommenda t i ons

per iod .

The data showing an increase in factors relating to

mental illness among non-NGIts in the second time period,

(such as self-report of chronic unemployment (Table 5),

psychiatric history (TabIe 6), drug use, hallucinations,

delusions, viewing themselves as insane (Table 7), taking

psychotropic medications (Tab1e 8), as well as the clinical

findings of depression, paranoia and memory impairment

(Tab1e 9), and the presence of a psychiatric diagnosis

(Tab1e 1O) ) not only indicate more conservative NGI

recommendations by the examiners but al-so suggest a more

mentally iII grouP of defendants seeking the insanity

defense as indicated by the examiners'

Itisapparentfromthefindingsthatthesecondtime

period represents a profile of defendants with varying

degrees of mentat illnesses, but that not all such

illnesses are grounds for an NGI recommendation to the

court under the MrNaughton Insanity Test. Indications that

mental impa i rments are present among aIl of these

defendants have already been confirmed by self-rePorts of

psychiatrictreatmentbyalldefendantsattemptinganNGldefense in the second time period (Tab1e 6)'

L22

The examiners suggested that the self-reports of the

use of Psychotropic medications (Tab1e 8), which showed a

substantial increase (5t to 32t) among non-NGIrs, may have

another explanation. Even though this may be an

indication that many of those not found to be NGI under the

I,l rNaughton insanity test may be severely mentally impai red,

requiring medications, the examiners suggested that this

may also reflect a gteater availabitity of psychiatric

interventions as wetl as medications based on different

treatment policies bY the county.

The examiners indicated t,hat a psychiatric diagnosis

is reported to the court in most cases, when a

recommendation of NGI is made to the court. However, the

court does not require a diagnosis. The increase (7t to

27\) in the presence of a psychiatric diagnosis among non-

NGI's in the second time period (Table 10) might indicate

that the presence of psychopathology does not necessarily

indicate lega1 insanity during the second time period, but

it is also further evidence that defendants without a

history of mental ilLness are less 1ike1y to plead NGI in

the second Period.

L23

Section 3:

Factors Associated with NGI Recommendations

Table 11 displays factors taken from Tables 5.10,

whichindicateadifferenceofgreaterthanl5percentage

points in favor of NGIrs between NGIrs and nOn-NGITS' For

the PurPose of this study i't was assumed there is a

relationship between these factors and the recommendations

of NGI and non-NGI, since the presence or absence of these

factorsarereportedtothecourtbytheexaminers.

Eventhoughdemographicinformationcannotbeusedas

an indicator of attributes of insanity, it must be noted

that in both time periods most NGI's were male. In the

first time period the ages ranged between 19 and 62, with a

mean age of 30. In the second time period ages ranged

between 19 and 45, with a mean age of 27' In both time

periods the mean age of NGIts was one year older than non-

NGI 's. High school graduation ( 2I ) was only assoc iated

with NGIrs during the first time period but not the second'

(Tab1e5).Similarresults,indicatingthatNGllsare

s1 ightly older and better educated than non-NGI I s, were

also reported by Pasewark, Jeffrey et aI' (1987) '

Demoqraphic Information based on Self-RePort

L24

Psychiatric SymPtoms

ClinicaI observations of defendants in the first time

period indicated that those found to be NGI by the mental

health examiners showed 1 5 or more Percentage Po int

differences between defendants not found to be NGI in the

following areas: anxiety (2O), paranoia (25), memory

impairment (16), and impaired affect (21) (TabIe 1I).

Clinically observed factors among NGI ts in the second

time period only showed this difference in the areas of

paranoia (I8) and impaired affect (23) (TabIe II)'

These findings are usually associated with the Presence of

a type of mental illness such as a psychosis.

.According to the examiners, this concentration of

mental impairment is not surprising, because substantial

disruptions of the mental ProceSSeS are required to meet

the requirements of either insanity test. They are

simultaneously the symptoms 'from which psychopathology is

diagnosed and the basis for the defendant's inability to

fully understand the nature and quality of his behavior.

Se 1 f-Repo rts

In addition to the ctinical observations, in the self-

reporting category in the first time period, NGI rs

reported a high incidence of Previous psychiatric treament

(23) , hallucinations (I8) , delusions (25) , self view of

L25

insanity(28),Partialreco}lectionoftheoffense(16)andtheuseofpsychotropicmedicationsatthetimeofthepsychiatricexamination(2g)(TableI1),whilgNGIIsinthesecondtimeperiodreportedhallucinations(}8)anddelusions (27) (Table 1I)'

According to accoun'ts of the examiners ' dh NGI

recommendation could not be made in either time period

wi thout at least a temporary impa i rment of realitY

testingr which is the basic component of delusions and

hallucinations.ItistheaSsociationofsuchimpaired

thinking with a specific event at a sPecific time that

makes the NGI determination ' Since delusions and

hallucinations,ataparticulartimenotwitnessedbytheexaminer, rely uPon self rePorting' the examiners are

alsoparticu]arlyintereStedinsignsandSymptomsofpsychotic illness that they can see and evaluate at the

time of the examination. Impaired affect and anxiety are

virtually always observable to some degree even when the

psychotic process itself is in remission' Thus these two

features are always reported' according to the examiners'

and also reflected in their reports. The examiners also

found affect impairment valuable as an ind icato r because

theyfeltthatitwasdifficultornearlyimpossibletofake affect, while a skilled faker might be able to report

various symptoms associated with a severe mental illness'

L26

WhileanxietyanddepressionareoftenaSsociatedwith

psychiatric disturbances, these two categories are not

necessarily rerated to any severe type of mental illness'

One of the examiners suggested that the increase in the

percentage of depression (7t to 18t) among non-NGI's in the

second time period (Table 9) may be an indication of the

nonresponsivenessofthel,lINaughtonTesttodefendantswithproblems of a more neurotic nature'

SinceparanoiaandimpairedaffectareSymptoms

closely associated with a severe tyPe of psychotic illness'

it aPPears that the t'l rNaughton Test has remained

sensitive to severe tyPes of mental illness; howeverl it

mustbenotedthattheincreaseinobservableaSwellas

self-reportedSymPt'omsamongdefendantsnotrecommendedfor

NGr in the second time period has made the possibility of

an NGI recommendation more difficult' The Presence of a

psychiatricdiagnosisisanotherfactorthatisaSsociatedwithNGlinbothtimeperiods(52\and46t)(TabteI0).This

association was arso reported by steadman, K€itner et a1'

(1983)rDaniel,Becketal'(1985)'Pasewark'Jeffreyet

a1. (1987) and Boehnert (1987) '

Differences in Factors Associated with ThE ALI

and MrNaughton InsanitY Tests

The findings in TabIe I1 confirm the discussions with

L27

the examiners, in which they stated that the psychiatric

aSsessmentshaveremainedthesamethroughoutthetwotime

periods. It can be seen that the major factors associated

withSeveretyPeSofmentalimpairments,suchaSparanoia

andimpairedaffectintheareaofclinicalobservationsbythe mental hearth examiners, have remained the same as

thebasisoftheirrecommendationsbetweenbothinsanitytests. The assignment of a Psychiatric diagnosis has also

remainedamajorfactorthroughoutbothtimeperiods.Inadditiontothesefactors,self-reportbythedefendants

of hallucinations and delusions (TabIe 7) is also closely

associated with the recommendation of NGI by the experts'

These results indicate that there are consistent

observationsandfindingsintheareasofpsychopathologywhichleadtotherecommendationsofNGlbytheexperts,and that these have remained stable throughout the tv'o time

periods.

It must be noted that the second step which was

describedbyEheexPertsaStheProceSsoftranslatingpsychopathology into 1ega1 test requirements has made a

slightdifferenceinitsapplicationtodefendantsbetweenthetwoinsanitylaws.ThisdifferencecanbeobservedinTables5-}0inthecloserYelationshipoffactorsaSsociatbdwiththefindingsofpsychopathologyamongNGlIsandnon-NGIIsduringtheapplicationoftheM.Naughton

r28

InsanityTest.ofParticularsignificancearetheself-

report of Psychiatric history (Tab1e 6) ' delusions and

subjective view of sanity (Tabl e 7) ' and the clinical

findings of paranoia and memory impairment (Tab1e 9) '

Even though Gutheil and Appetbaum ,1982) and Rogers

(1986) suggest that the entire process of NGI assessment

remainstargelyidiosyncraticandinvalidated,thisstudy

has found t.hat there are definite relationships between

findings in certain categories and NGI recommendations'

Section 4z

Problems Encountered When lrlaking Translation

between Legal and Psychiatric Concepts of Insanity

DiscussionswithforensicmentathealthexaminerS

revealedthefollowingdifficultiesrelatedtomakingNGl

recommendations to the court' while performing a routine

mentalstatusexaminationrequiresexpertiSeinprinciplesofpsychopathologY,therecommendationsrequi'redbythecourtintheCaSeofanNGlrecommendationareadifferent

matter . The experts suggested that psycholog i sts and

psychiatrists,whoarenotfamiliarwiththerequirements

of these assessments, freguently submit rePorts which spe11

outdetaitsofinterviewswithexamineesthathavelittle

relevance to the actual question asked by the court. Such

lettersexaminedbythisresearchertevealedsuchreportS

L29

to consist

examinee's

a tto rneys ,

plea.

of uP to 20 pages with verbatim recording of

answers. These examinations were requested by

representing clients who were considering an NGI

The exPerts pointed out that this tyPe of rnental

healthaSsessmentcanCreatedifficultiesfotthecourtaSwell as for other examiners' as in many cases there is

lit.tleagreemenEbetweentheconclusionsofthese

examiners, since they often base thei r findings uPon

psychopathology rather than the requirements of the 1aw'

The experts agreed that forensic mental health examiners

appointed and paid for by the court will have had the

exper.ience and understanding of 1ega1 insanity that is

necessarY in these situations

The exPerts noted that forensic mental health

examiners familiar with requirements of the court use

principles of psychopathology fot the mental status

examination,afterwhichtheypaycarefulattentiontothetranslation of thei r f indings into legal insanity test,s.

Personsconsideredtobementatlyillmaynotnecessarily

belegallyinsanewhentheirpsychopathologyistranslatedinto legal insanitY standards'

Theexpertssuggestedthat,additionaldifficulties

mayarisewhentheexamineefeelsanNGlverdictmaybeinhis best interest, Particularly when he is familiar with

r30

the legal requirements of an insanity status' This was also

pointed out by Halleck (1986) ' At times defendants have

had insanity trials in the Past and can contrive symptoms

relating to various asPects of mental illness'

The experts further agreed that since the court is

interested in the mental' status of the defendant at the

time of the crime' the time lapse between assessment and

thecommitmentoftheoffenseisanotherareawhichcan

create difficulties' This problem was also discussed by

Grisso (I986) ' Additional difficulties may arise if a

defendanthasusedpsychotropicmedicationforaperiodoftimepriortotheoffense,thendiscontinuedthemedica-tionsrbecamepsychotic'andcommittedthecrime'Ifheisagain taking medications at the time of the mental status

examination, the psychotic symPtoms may have cleared '

thereby complicating the mental status assessment' In

such cases, Police and witness rePorts describing the

defendant's behavior at the time of the offense can be of

great helP to the examiner'

In summary, it can be said that the entire process of

NGlevaluationsaSwellaSthetranslationofpsychopathol-

ogy into legaI tests of sanity are complex issues which not

only require skil1s and exPerience in psychiatric princi-

pIes, but aLso a thorough familiarity with changing lega1

requirements.AccordingtotheforensicPsychiatricexPertS

L32

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133

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I'lacDonald I J. (f 958).Springfield, I11.: C'

I4audsl.y, H. (1864).Churchill & Sons.

r36

Melton, G.,(1987 ) .handbook

PetriIa, J. r PYothress, N'Psvchological evaluations.

,&for

Slobogin, C.the courts: A

by reason ofmental healthLaw Newsletter

6-r mental health Protess onal s and lawyers -

l{ercier,C.(1905).Criminalresponsibilitv.London:Oxford.

McDonald v. United States, 312 F' 2d 847 (D'C'Cir' 1962)'

lrode1 penar code , official Draft, May Lg62- American Law

rnstitute , i'niradelphia ' bection 2'20' General

Requirenents of culpability ' 25-28'

Monahan, J. (1983)- Committment after aqittalinsani ty: Dangerousness ?nq th: 5o1-" :1.;;;il;;io"uis.'oivision of psvchotoev and

New York: Guiltoro.

3, I4.

lrlurray,

tvlo n

Ivlorse, s.J. (198s)' Excusins th: .?t?1yi ^ tl:.., t3::,?::I

;:i".;;"',"J""=i6","Jl sourfrern carirornia r-aw Review,

58, 780-836.

Ivtorse, S.J. (1978). Ctazy behavior,---A; analysis of mental health law'

Law Review, 5L, 527'

A. H. ( 1901 ) . A new engl is! dictionn:l nrincinres. oilford: ctarenaon Press'

morals, andSouthe rn

sc ience :California

hiitorical PrinciPles' oxford:19 01

ove r.

ParsonsV1State,BlAla577|596-597(1886).

Pasewark, R., Jeffte! t R" & Bi- --Di ii"rentiating successful a

Plea defendants in Colorado'ind Law, P. 55-7I'

Penal Code 125 (b) Test of Insanity (added to Californialaw on the basis of piopo=iiion 8' a state wide

referendum, L982) '

r37

Peoplev.SkinnerlS5DailyJournalD.A.R.3264,SeptemberffiPeople v. Wolff, 61 CaI' 2d, 795' L964'

Platt, A. M., & Diamond, B'L' (1966)' The origins of the,,right and wrong,'test of "ii*inu1

responsibility and

its =uU="qr"ni 'developmert in tlt United States: A

historicaf==ut""V. Caliiornia Law Review' 54' L227'

PeoPIe v. Coffman, 24 Cal. 230, 1864. (t'{ !Naughten Rule) '

Ca1. 3rd, 333, Lg78' (First part of ALI

QuenrJ.N.(L974).Ang1o-AmericanCriminal-Insanity:AHistorical '-p"i=p""tiie ' Journal of the Historv ofBehavior Sciencesr l0'

Randorn House DictionarY (1968 ) '

Ray, I. (1860).i-a=nirrr t/.t le Brown'

ofinsanitY. (4t------,

Robitscher, J. B. (1966) ' PrrrrsuiF of - ?qr9er'ng!!: Psvchiatrvand the law. PhiladelphffiLippincott.

Rogers, R. (I985, August) 'resDonsibilitv. Paper presentffing of the

ffilog ical Assoc iation, Los Angeres '

Rogers, R. (1986) - 9olrducFiPg insanity evaluations' New

York: Van Norstrand Reinhold'

RogersrR.(1987).APl'spositionontheinsanitydefense'-erneiican 'psychologist , 42 (9) , 831-839'

orrr S. (1984) . oregonr s newA revie$/ of the first five

(4).

Rogers, R. & Clark, C' (1985 ) ' Sssment of criminalresponsibility- PaPer presented at@ffiicir Association, Los Angeles'

Rogers, R. & Seman, W' (1983) ' tlurder andYL- ' nation of IVIMPIresPonsibilitY: An :x?Il - 1 o.r-oE

cr iminalprofiles.

PeoPIe v. Drew, 22test).

Behivioral Sci.nc"= und tht Lu'' 1, 89-95.

r38

Rubin, S. (1965). Psychiatry and criminal 1aw' New York:

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Sanford r L.of Law to

(1963).l{edical

Letter from Rutgers University SchoolTribune, Jan.4r 1953'

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r39

Sobeloff , S.E. (1955)' Insanity and theM'Naughten to Durham and beyond' Am'

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Stone,A.(1984).Law,psYchlatryandmorality.WashingtonDC: American PsYchiatric Press'

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Weihofen, H. (1955). The urqe to punish' New York: Farrar'

Wettstein, R. L., Rogers, R' I lvlulvey' E' (I986) ' Insani!

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Weeklv Law Review (1957) ' L'" 1L22. Iv1 ' Na ughten .

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criminal 1aw: FromBar A. J.4L2793.

r40

APPENDICES

141

APPENDIX A:

ORDER FOR EXAMINATION

PURSUANT TO PENAL CODE SECTION LO26

ll2ll

,ilii

,il5:

t'

6ii

L42

ST'PERIOR COURT OF CAIIFORNIA, CO[,NT( OP SOI"AHO

DEPARTHEIIIT NO.rir

9t

l0'

ill')

l3

l{;l5

I l;

t;IB

I9

2tt

2l

22

23

2l'

2:J

26

21

23

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Plaintiff,

vs.

Defendant.

IT IS EEREBY ORDERED thAt

oRpBR FOR EXAI'{r}t+rIgI_F-r-to PENAL cePESECTION 1026

NEXT COURT DATE:CHARGE(S):

AND DR.

NO.

DR.

are aPPointed to examine said defendant

rn writ]-ng under the statutes and with

below rndicated:

was the defendant sane at thealleged offense using the testCaliiornia PenaI Code SectionJune 9, I982, to wrt:

and rePort to this Court

reference to the question

time of theestablished bY

25(b) effective

ceedings, including anY

9t in which a PIea ofinsanitY is entered'und bY the trier of

fact onIY when the accu

tsi026

r43

liil

2il,ll

;ilt,

are to be .onliderea in the disjunctive ("or")rather than the coniunctive ( "and" ) pursuant tothe historrc M'Naucf,ton standard of insanity' )

(Please !e!e: In Iiqht of PeoPIe-'/-Weber (I985

iii=tiffi I g I -'.n"'

t*o erffi , ::=-:

Dated:

MEE-TF.THE- SUPERTOR COURT

3iiI

6lilr

-1,t iii

8iI

0!

I0

l2

ll

lll.l

l(i

l1

ls

r3

r0

20

2t

22'

23

2t"

23

26

2t-

28

t44

APPENDIX B:

CRIP1INAL LAW & 207

TRIAL PROCEEDINGS ON ISSUES OF INSANITY

t!+5

Propu v. SzuNNen

39 Cal.3d 765 217 Cal.Rptr. 685, 7M P.2d 752 [Sept. 1985]

76s

[Crim. No. 23783. Sept. 16, 1985.]

THE PEOPLE, Plaintiff and Respondent,, v'JESSE SKINNER, Defendant and Appellant.

SUrvrrvranY

Defendant was convicted of second degree murder (Pen. Code, $$ 187,

189) entered upon his pleas of nolo contendere and not guilty by reason ofinsanity (Pen. Code, $ 1016, subds. 3, 6), and a finding by the court, aftera jury was waived, that he was sane at the time of the offense. (Pen. Code,

$ 1026, subd. (a).) Pen. Code, $ 25, subd. @), which was adopted by the

electorate in June i982as part of an initiative measure, popularly known as

Proposition 8, provides that the insanity defense shall be found by the trierof fact only when the accused person proves by a preponderance of the

evidence that he gr she was incapabte of knowing or understanding the

nature and quality of his or her act "and" of distinguishing right or wrongat the time of the commission of the offense. Defendant had strangled hiswife while he was on a day pass from a state mental hospital at which he

was a patient. The evidence indicated that defendant believed that the killingwas, in effect, commanded by God. The trial court found that under the"right or wrong" prong of $ 25, subd. (b), the defendant would qualify as

legally insane, but under the other prong, the "nature and quality" prong,he clearly was not- Concluding that by the use of the conjunctive "and" in

$ 25, subd. @), the electorate demonstrated an intent to establish a strictertest of legal insanity than the traditional M'Naghten test, the judge foundthat defendant had not established that he was legally insane. (Superior

Court of Venrura County, No. CR 17677, Marvin -H. Lewis, Judge.) -

The Supreme Court reversed. The court held that Pen. Code, $ 25, subd.(b), was intended to reinstate the M'Naghten test as it was applied in Cali-fornia prior to the Supreme Court's decision establishing the American LawInstitute test as the test of insanity. Although $ 25; subd- (b), uses the

conjunctive "and" rather than the disjunctive "or," in view of the fact thatthe disjunctive M'Naghten test is among the fundamental principles of crim-inal law, and applying $ 25, subd. @), as a conjunctive test of insanitywould erase that fundamental principle and would raise difficult constitu-tional questions, it could not be assumed that the electorate intended such a

fundamental, far-reaching change in the law of insanity. The court also

T+A

766 PeoPLr v. SxrNNsn

39 Cal.3d 765 2r7 Cal'Rptr. 685, 704 P.2d'752 [Sept' 1985]

rejected the argument that reversal of the judgment was not required because

Uoth prong, oI th" g 25, subd. (b), test were actually the same. Similarly,

the court r-ejected the argument that $ 25, subd. o), was intended to "clar-

ify,' the meaning of the "right or wrong" prong by establishing that the.,ivrong', which the defendant must comprehend is a-le.S.al rather than. a,

moral irong. Moreover, even assuming the vaiidity of this argument, the

court held that reversal was required because the trial court did not find that

defendant was able to co*pt"hend that his act was considered unlawful or

"wrong" even though it was commanded by God' (Opinion by Grodin' J''with Kaus, Broussard, Reynoso and Lucas, JJ', concurring' Separate con-

curring opinion by Mosk, J. Separate dissenting opinion by Bird, c. J.)

HraoNorss

Classified to Catifornia Digest of Official Reports, 3d Series

(1a-1c) Criminal Law $ 2}/-Trial-Proceedings on Issue of Insanity-At-Time of offense-Test of Insanity-Restoration of M'NaghtenTest.-Pen. Code, $ 25, subd. @), which provides that the insanity

that the electorate intended such a fundamental, far-reaching change

in the law of insanity when it adopted $ 25, subd' (b), as part of an

initiative measure, popularly known as Proposition 8, in 1982'

[See Cal.Jur.3d (Rev), Criminal Law, $ 2306; Am'Jur'2d, Crim-

inal Law, $$ 57, 58.1

(2a, 2b\ Criminal Law $ 207-Trial-Proceedings on Issue of Insanity-At .Time of offense-Test of Insanity-Requiring Defendant to

Meet Both Prongs of M'Naghten Test.-In a prosecution for second

degree murder (Pen. Code, $$ 187, 189), in which the issue of de-

t47

ER

:

Pp,opur, y. SxrNNen39 Cd.3d 765;217 Cal.Rptr.685,704 P.2d752 [Sept. 1985]

767

nvrs

rt

:t

it

h

,

ii)

I

fendant's sanity was tried before the court, the court committed re-versible error in finding that defendant was not insane under pen.Code, $ 25, subd. @), which reinstates the M'Naghten test of insanity,where the trial court found, on clearly sufficient evidence, that, al-though defendant was aware of the nature and quality of his homicidalact, he was unable to comprehend that the act was wrong, because hebelieved it was commanded by God. The trial court erred in requiringdefendant to meet both prongs of the M'Naghten test-the "nature andqualiry" prong and the "right and wrong" prong-to establish legalinsanity, and there was no merit to the argument that both prongs ofthe test were actually the same. Nor was there any merit to the argu-ment that $ 25, subd. @), was intended to clarify the meaning of the"right or wrong" prong by establishing that the "wrong" which de-fendant must comprehend is legal, rather than moral, wrong. More-over, even assuming the validity of this argument, the trial court didnot find that defendant was able to comprehend that his act was con-sidered unlawful or "wrong," even though it was commanded by God.

(3) Criminal Law g 207-Trial-Proceedings on Issue of Insanity-AtTime of Offense.-It is fundamental to our system of jurisprudencethat a person cannot be convicted for acts performed while insane.This rule is one aspect of the equally well-established and no lessfundamental principle that wrongful intent is an essential element ofcrime.

(4) Statutes $ 35-Construction-Language-Words and Phrases-Useof Word "And."-There is a basic principle of statutory and consti-tutional construction which mandates that courts, in construing a mea-sure, not undertake to rewrite its unambiguous language. That rule isnot applied, however, when it appears clear that a word has beenerroneously used, and a judicial correction will best carry out the intentof the adopting body. The inadvertent use of "and" where the purposeor intent of the statute seems clearly to require "or" is a familiarexample of a drafting error which may properly be rectified by judicialconstruction.

Couxsrr,

Charles M. Sevilla, under appointment by& Sevilla for Defendant and Appellant.

the Supreme Court, and Cleary

t)

768 Peopr-r v. SrrNNrn39 Cal.3d 765;2r7 Cal.Rptr. 685,704 P.2d,752 [Sept. 1985]

John K. Van de Kamp, Attorney General, Norman H. Sokolow, Beverly K.Faik and Howard J. Schwab, Deputy Attorneys General, for Plaintiff andRespondent .

Christopher N. Heard and Terry L. White as Amici Curiae on behalf ofPlaintift'andRespondent. - .i i::.-,-::j - -:,

Opwox ;

GRODIN, J.-For over a century prior to the decision in People v. Drew(1978) 22 Cal.3d333 U49 Cal.Rptr. 275,583 P.2d 13181, California courtsframed this state's definition of insanity, as a defense in criminal cases,upon the two-pronged test adopted by the. House of Lords in M'Naghten'sCase (1843) 10 Clark & Fin. 20O, 210 [8 Eng. Rep. 718, 722): "[T]oestablish a defence on the ground of insanity, it must be clearly proved that,at the time of the committing thE act, the parry accused was labouring undersuch a defect of reason, from disease of the mind, as not to know the natureand quality of the act he was doing; or, if he did know it, that he did notknow he was doing what was wrong.." (Italics added; see People v. Cofrnan(1E64) 24 Cal. 230,235.)

Over the years the M'Naghten test became subject tb considerable criti-cism and was abandoned in a number of jurisdictions. In Drew this courtfollowed suit, adopting the test for mental incapacity proposed by the Amer-ican Law Institute: "'A person is not responsible for criminal conduct if atthe time of such conduct as a result of mental disease or defect he lackssubstantial capacity either to appreciate the criminality [wrongfulness] ofhis conduct or to conform his conduct to the requirements of law. ' " (Drew,supra, 22 Cal.3d at p. 345.)

ln June 1982 the California electorate adopted an initiative measure, pop-ularly known as Proposition 8, which (among other things) for the first timein this state established a statutory definition of insanity: "In any criminalproceeding . . in which a plea of not guilty by reason of insanity is en-tered, this defense shall be found by the trier of fact only when the accusedperson proves by a preponderance of the evidence that he or she was inca-pable of knowing or understanding the nature and quality of his or her actand of distinguishing right from wrong at the time of the commission of theoffense." (Pen. Code, $ 25, subd- (b) [hereafter section 25(b)], italicsadded. )'

rUnless otherwise indicated all future statutory references are to the Penal Code .

1 /ro

Proplp v. SzuNxen39 Cal.3d 765;211 Cal.Rptr. 685' 704 P.2d752 [Sept' 1985]

769

It is apparent from the language of section 25(b) that it was designed to

eliminati the Drew test and to reinstate the prongs of the M'Naghten test'

However, the section instead of the disjunctive

"or" to connect the , therefore' section 25(b)

would do more than r It would strip the insanity

defense from an accused who, by reason of mental disease, is incapable of

knowing that the act he was doing was wrong. That is, in fact, the inter-

pretation adopted by the trial court in this case.

who lack the mens rea essential to criminal culpabiliry'

not to adopt a stricter test than that applicable prior to Drew, but suggest

that in facithere is no difference between the two prongs of the M'Naghten

test-ability to distinguish between right and wrong, and knowledge of the

nature and quality of the particular criminal act-

Mindful of the serious constitutional questions that might arise were we

exist two distinct and independent bases upon which a verdict of not guilty

by reason of insanity might be returned.

I

Defendant appeals from a judgment of conviction of second degree mur-

der ($$ f gZ, f-8-91 entered upon his pleas of nolo contendere and not guilty

Uy r"uion of insanity ($ 1016, subds. 3, 6), and a finding by the court, after

1<0

770 PBopre v. SxrNuen39 Cal.3d 765;2t7 Cal.Rprr. 685,7M p.2d j52 [Sept. 1985]

a jury was waived, that he was sane at the time of rhe offense. ($ 1026,subd- (a).) In finding the defendanr sane, the judge acknowledged that itwas more likely than not that defendant suffeied f.o- u -"nt l disease,paranoid schizophrenia, which played a significant part in the killing. Thejudge stated that under the Diew test of legal insaniry defendant wouldqualify as insane,section 25@), theother prong, he cljunctive "and" inestablish a stricter test of legal insanity than the M'Naghten test, and to"virtually eliminate" insanity as a defense, the judge forind that defendanthad not established that he was legally insane.

Probation was denied and defendant was sentenced to a term of 15 yearsto life in the state prison

Defendant_strangled his wife while he was on a day pass from the cam-arillo State Hospital at which he was a patient- Evidence offered at the trialon his plea of not guilty byclinical and forensic psycholsical paranoic schizophrenia,anoid features. A delusional producdefendant that the marriage vow ..tillpartner a God-given right to kill the other partner who has violated or wasinclined to violate the marital vows, and that because the vows reflect thedirect wishes of God, the killing is with complete moral and criminal im-punity. The act is not wrongful bicause it is sanctified by the will and desireof God.

Although there was also evidence that wourd have supported a finding thatdefendant was sane, it wa1 apparently the evidence summarized above uponwhich the trial judge-based trii nnaing that defendant met one, but nor both,prolg_s of the M'Naghten test. Defendi nt knew the narure and quality of hisact. He knew that his act was homicidal. He was unable to distinguiit ,igttand wrong, however, in that he did not know that this particurar iitting ,,i",wrongful or criminal.

(la), (2a) In this context we must determine whether the trial court,sconclusion that section 25(b), requires that a defendanr meet both prongs ofthe M'Naghten test to establish legal insanity was correct, and if not, wheth-er the court's finding that defendant met tire "right-wrong" aspect of thetest requires reversal with directions to enter a luagment or noi guilty byreason of insanity.

1(1

771Prople v. Sxrxxrn39 Ca1.3d 765;21't Cal.Rptr. 685, 704 P'2d152 [Sept' 1985]

II

The Insaniry Defense in California

(3) "It is fundamental to our system of jurisprudence that a Person can-

not be convicted fo. u"i. performld while insane. (People v' Nash (1959)

52 Cat.2d 36, 50_51; . . :),' (people v. Kelly (1973) 10 cat.3d 565,574

Ut1 Cal.Rptr. 171, itO p.Za'gZSi.l This rule is one aspect of the equally

welr established and no less fundamental principle that wrongful intent isreflected in the first statutory

ture in 1850. The Act Concern-ch. 99, P.229) set forth this

sane as the first three sections of the

law:

" $ 1. In every crime or public offence there must be a union or joint

opeiation of act and intention, or criminal negligence'

..$2.Intentionismanifestedbythecircumstanc.esconnectedwiththe

perpletration of the offence, and thJ sound mind and discretion of the person

accused.

..$3.Apersonshallbeconsideredofsoundmindwhoisneitheranidiot,

nor lunatic, nor afiected with insanity, and who hath arrived at the age of

fourreen years; or before that age, if such person knew the distinction be-

tween good and evil""2

Theprinciplethatwrongfulintentorcriminalmensreaisanessentialelement of crime *u, .u.rl"d over into the Penal Code of 1872 which in-

corporatedsectionloftheActConcerningCrimesandPunishmentsaSsection 20 of the code, and expanded the classes of persons deemed inca-

pableofcommittingcrime-section26,asadopted-in1872'providedthat"[a]ll persons are clpable of committing crimes' except those belonging to

the following classes:

..l.Childrenundertheageoffourteenyears,intheabsenceofclearproof that at the time of comi-ritting the act charged against them, they knew

of its wrongfulness;

2Further recognition was given to this principle as aoolied to the insane with the enactment

of the Act to Regulate p.".i.ii"et l" e"i'"i;;i ';ts

'in t es t ' (!ti:::-t 1: l::l',.11:I;31'*J

Section 583 of that ,"t p.oria.J,'"An Act done by. a.perLol in,".*11":-l'lsanity cannot be

ounished as a public offence, nor can a person be tried, adjudged to punishment' or punished

il;;;blt; oft.n.", while he is insane"' (ld" at p' 211')

]-tr-

772 Peopre v. SxrNNrn39 Cal.3d '165;217 Cal.Rptr. 685, 704 P.2d752 [Sept. 1985]

"2. Idiots;

"3. Lunatics and insane persons;

"4. Persons who committed the act or made the omission charged, Pnderan ignorance or mistake of fact which disproves any criminal intent;

"5. Persons who committed the act charged, without being consciousthereof;

"6. Persons who committed the act or made the omission charged,through misfornrne or by accident, when it appears that there was no evildesign, intention, or culpable negligence;

"7. Married women (unless the crime be punishable with death) actingunder the threats, command, or coercion of their husbands;

"8. Persons (unless the criine be punishable with death) who committedthe act or made the omission charged, under threats or menaces sufficientto show that they had reasonable cause to and did believe their lives wouldbe endangered if they refused."

When the Penal Code of 1872 was submitted to the Legislature for adop-tion, the accompanying comments of the code commissioners reflected sen-sitivity to the principle of criminal responsibility that had been expressedby the court in implementing the prior law. With regard to section 20, thecommissioners noted: "The opinion of the Court in People vs. Harist(1866) 29 Cal.678l is given at length because it is a correct and authori-tative exposition of Sec. 20; . . . Says Mr. Bishop (1 Bishop's Cr. Law,Sec. 227): 'There is only one criterion by which the guilt of men is to betested. It is whether the mind is criminai. Criminal law relates only tocrime, and neither in philosophical speculation nor in religious or moralsentiment would any people in any age allow that a man should be deemedguilty unless his mind were so. It is, therefore, a principle of our legalsystem, as probably of every other, that the essence of an offense is thewrongful intent, without which it cannot exist.' The opinion of Mr. Bishopfinds full support in the following adjudged cases.-United States vs.Pearce, 2 McLean, p. 14; Weaver vs. Ward, Hob., p. 134; Rex vs. Fell,1 Salk., p.272, Lancaster's Case, 1 Leon., p. 208 (Code Commis-sioners' note, Pen. Code of Cal. (lst ed. 1872) p.21.)

As to section 21, which essentially incorporated sections 2 and 3 of the1850 act, the commissioners noted that "[t]he natural and probable conse-quences of every act deliberately done are presumed to have been intended

l(3

Prorr-n v. Sxrxxnx39 Cal.3d 765;217 Cal.Rpr. 685, 704 P.2d152 [Sept. 1985]

773

by the author of the act, if of sane mind." (Ibid.) It was then understood,

although the plea of not guilty by reason of insaniry was not added to sec-

tions 1016 a;d 1017 until 1927 (Stats- 1927, ch- 677, $$ 1, 2, pp. 1148-

1149), that the insanity defense could be offered under a plea of not guilty.(Code Commissioners' note, Pen. Code of Cal. (1st ed- 1872) rp' 341')

the ground of insanity, it must be clearly proved that, at the time of com-

mitting the act, the party accused was laboring under such a defect of rea-

son, fiom disease of the mind, as not to know the nature or qualiry of the

act, or if he did know it, that he did not know he was doing what was

wrong.'" (Original italics.) Cofinan's exposition of the M'Naghten test was

set out in the commissioners' note to section 1016, confirming the legislative

understanding of the applicable definition of legal insanity.

For more than i century after Cofrnan tecognized the M'Naghten test as

applicable in this state it continued to be used, and although sometimes

siatea in the conjunctive, was in fact applied so as to permit a frnding ofinsaniry if either prong of the test was satisfied.3 We stated the test in the

,disjunctive in Drew and the instructions given by the trial court in that case

did so also. (22 Ca1.3d at pp. 336, fn. 2,339.)4

3See, e.g., People v. Hoin (1882) 62 Cal. 120, stating the test.in the disjunctive, but

q,roiing trio-English decisions which, although the coojunctive had be-en used, suggest in

aBy far the vast majoriry of cases have either stated the test in the disjunctive or have

worded it affirmatively stating that the defendant is sane if he is capable 9! apgye{a1t1q [enature o[his actandknows iiis wrong' (see' e'g'' Peoplev' Darling (1962) 58 cal'2d 15'

22 122 Cal-Rptr- 484,372 P.2d 3r6li People i' Nash (1959) 52 cal'2d 36' 43-44' fn' 3

t338 P.2d 4l'61; People v. Baker (1954) 42 Cal.2d 550, 568 [268 P.2d 705]; People v.

ki^Oott(l936i5Cai-ZaOOS.6l0[55P.2d4831; Peoplev,Keaton_(1931)2llCal.722,724 1296 p, 6091; People v. Koein (1929) 2O7 Ca1.605, 6t2 [279 P. 6461; People v.

Gitbirg, supra, t'91 Cai. :OO. 3t3t People v. Williams (1920) 184 Cal. 590.593 [194 P.

1(4

774 Proprp v. SxrNupn39 Cal.3d 765:217 Cal.Rptr.685,704 P.2d752 [Sept. 1985]

Because our statutes requiring mens rea, and our past formulation of theM'Naghten and ALI-Drel{/ tests of insanity have afforded adequate defenseto mentally ill persons who lack wrongful intent and might otherwise besubject to penal sanctions, we have not been called upon to consider theconstitutional implications of the imposition of punishment on persons whoact without that intent. Nor has the United States Supreme Court done so,although that court, too, has recognized repeatedly that except in regulatoryoffenses in which the sancrions are relatively light (united states v. Dotter-weich (1943) 320 U.S. 277,280-281 [88 L.Ed. 48, 5l-52, 64 S.Cr. 134]),the existence of wrongful intent is essential to criminal liability. (see unitedStates v. Bailey (1980) 441 U.S. 394, 402 162 L.Ed.2d 575, 585, 100 S.Cr.624f; Morissette y. United States (1952) 342 U.S. 246,250-251 [96 L.Ed.288,293-294,72 S.Ct. 2401; cf- United States v. Balint (1922) 258 U.S.25O 166 L.Ed. 6M, 42 S.Ct. 3011.)

Because mens rea or wrongfuI intent is a fundamental aspect of criminallaw, the suggestion that a defendant whose mental illness results in inabiiiryto appreciate that his act is wlongful could be punished by death or impris-onment raises serious questions of constitutionai dimension under both thedue- process and cruel and unusual punishment provisions of the Constitu-tion. In Leland v. Oregon (1952) 343 U.S. 79O 196 L.Ed. 1302,72 S.Ct-10021, the court upheld an Oregon law placing the burden of proving in-sanity beyond a reasonable doubt on the defendant and affirmed the right ofthe state to formulate the applicable test of legal insanity. In so doing,however, the court measured the law under due process standards, conclud-ing that the irresistible impulse extension of the traditional insanity test wasnot "'implicit in the concept of ordered liberty."' (343 U.S. at p. 801 t96L.Ed. at p. 13101.) The court thus seemingly accepted the proposition that

lol9l; People v. Oxnam (1915) 170 Cal. 2ll,2l3 ll49 P. 1651; People v. Hubert (1897)l19 Cal. 216,223 [5] P. 329]; People v. M'Donell (1873) 47 Cal. 134, 135.)

Both People v. Reid (1924) 193 Cal. 491, 496 [225 P. 859], and. People v. Bundy (t914)168 Cal. 777,719 [45 P. 537], state the test affirmatively in rhe conjunctive. In Bundy dtecourt aPproved the jury instnrction which stated: "'If he has reasoning capacity sufficientto distinguish berween right and wrong as to the panicular act he is dbing, knowledge andconsciousness that what he is doing is wrong and criminal and will subject him to punish-ment, he must be held responsible for his conduct."' ln Reid, where sufficiency of theevidence was in issue, the court found the evidence was not sufficient to establish thatdefendant did not know that his act of robbery was wrongful or did not understand thenature of his act. Both cases are consistent with the rule that a defendant who establisheseither prong has satisfied the M'Naghten test as applied in California.

The instruction on insanity most commonly given prior to Drew (CAl)lC No. 4.00 (3ded. 1970)) stated the rule in both formulations: "If you find that the defendant was capableof knowing and understanding the namre and quality of his acr and, in addition, was capableof knowing and understanding that his act was wrong, you will find that he was legaily sane.[!] However, if you find that the defendanr was not capable of knowing or undirsiandingthe nature and quality of his act, you will 6nd that he was legally insane; or, if you find thathe was incapable of knowing or understanding that his act was wrong, you will find that hewas legaily insane."

1((

Proprr v. SrrxNen39 Cal.3d 765;277 Cal.Rptr. 685,7MP.2d752 [Sept. 1985]

775

the insanity defense, in some formulation, is required by due process. (See

also RoDinson v. Califurnia (1962) 370 U.S. 660, 666 [8 L.Ed.2d 758,762,82 S.Ct. I4l7l, suggesting that punishment for the status of being mentallyill would constitute cruel and unusual punishment.) Scholars, too, suggestthat abolition of the traditional insanity defense may be constitutionally im-permissible if the result would be imposition of punishment on a men[allyill person for acts done without criminal intent. (See Robitscher & Haynes,In Defense of the Insaniry Defense (1982) 31 Emory L.1.9; Note, TheProposed Federal Insanity Defense: Should the Quality of Mercy Suffer forthe Sake of Safety (19M) 22 Am.Crim. L.Rev. 49.)

This court suggested a similar view in People v. Coleman (1942) 20Cal-2d399,407 U26P.2d 3491, where we observed: "Obviously an insaneperson accused of crime would be inhumanely dealt with if his insanity wereconsidered merely to reduce the degree of his crime or the punishmenttherefor. "5

We need not face tt"i aim"olt constitutional questions, however, if sec-tion 25@) does no more than return to the pre-Drew California version ofthe M'Naghten test.

m

Post-Proposition 8 Rerurn to M'Naghten

(1b) If the use of the conjunctive "and" in section 25(b) is not a drafts-man's error, a defendant must now establish both that he "was incapable ofknowing or understanding the nature and quality of his or her act and ofdistinguishing right from wrong." (4) We recognize the basic principleof statutory and constitutional constnrction which mandates that courts, inconstruing a measure, not undertake to rewrite its unambiguous language.(In re Waters of l-ong Valley Creek Stream System (L9'19) 25 CaI-3d 339,348 [58 Cal.Rptr. 350, 599 P.2d 656].) That rule is not applied, however,when it appears clear that a word has been erroneously used, and a judicialcorrection will best carry out the intent of the adopting body - (Pepper v.Board of Directors (1958) 162 Cal.App.2d l, 4 1327 P.2d,928'1.) The in-advertent use of "and" where the purpose or intent of a statute seems clear-ly to require "or" is a familiar example of a drafting error which mayproperly be rectified by judicial construction. (See, e.g., Peoplev. Bigelow(1984) 37 Cal.3d 731, 755-756 1209 Cal-Rptr. 328, 691 P.2d 9941; Biancov. Ind. Acc. Com. (1944)24 Cal.2d 584, 587 U50 P.2d 8O6f; People v.

sFor a contrary view, see Morris, Madness and Criminal Law (Chi. Press 1982) page 76.See also Keilitz and Fulton, The Insanity Defense (Nat. Center for State Courts l9M).

l<6

776 Psoplr v. SxrNNen39 Cal.3d 765:211 Cal.Rptr. 685, 704 P.2d'152 [Sept. 1985]

Butler (1978) 81 Cal.App.3d Supp. 6, 8 [146 Cal.Rptr. 856]; Abbey v.Board of Directors (1922) 58 Cal.App.757,760 l2O9 P. 7091.) (1c)Whether the use of "and" in section 25@) is, in fact, a drafting error canonly be determined by reference to the purpose of the section and the intentof the electorate in adopting it.

The ballot summaries and arguments are not helpful. The Attorney Gen-eral's summary of Proposition 8 advises only that the measure included a

provision "regarding . . . proof of insanity." (Official title and summary,Prop. 8, Ballot Pamp., Proposed Amends. to Cal. Const. with argumentsto voters, Primary Elec. (June 8, 1982) p. 32.) The analysis of the Legis-lative Analyst quotes the conjunctive language and states only that the pro-vision "could increase the difficulty of proving that a person is not guiltyby reason of insanity." (1d., at p. 55.) No reference to the insanity provi-sion appears in the arguments for or against Proposition 8. (1d., at pp. 34-35.) These omissions are not without significance, however. As we notedearlier, the insanity defense reflects a fundamental legal principle commonto the jurisprudence of this country and to the common law of England6 thatcriminai sanctions are imposed only on persons who act with wrongful in-tent in the commission of a malum in se offense. (See Morissette v. UnitedStates, supra,342 U.S. 246,250-251 [96 L.Ed. 288,293-294].) Since 1850the disjunctive M'Naghten test of insanity has been accepted as the rule bywhich the minimum cognitive function which constitutes wrongful intentwill be measured in this state. As such it is itself among the fundamentalprinciples of our criminal law. Had it been the intent of the drafters ofProposition 8 or of the electorate which adopted it both to abrogate themore expansive ALI-Drew test and to abandon that prior fundamental prin-ciple of culpabiliry for crime, we would anticipate that this intent would beexpressed in some more obvious manner than the substitution of a singleconjunctive in a lengthy initiative provision. (Cf. Marina Point, Ltd. v.Wolfson (1982) 30 Cal.3d 72t, 734 [180 Cal.Rptr. 496, &O P.2d 115, 30A.L.R.4th 11611, cert. den., 459 U.S. 958 174 L.Ed.2d 111, 103 S.Ct-129); Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351,3@-365[l 10 Cal.Rptr. 353, 515 P.2d 297); In re Cox (1970) 3 Cal.3d 2O5,215 190Cal.Rptr. 24, 474 P.2d 992); Interinsurance Exchange v. Ohio Cas. Ins.Co. (1962) 58 Cal.2d 142, 152 [23 CaI.Rptr. 592,373 P.2d 640].)

Applying section 25G) as a conjunctive test of insanity would erase thatfundamental principle. It would return the law to that which preceded

6This concept of criminal responsibility is not one limited to the laws of this country andof England- In their anicle on the development of the insanity defense in California, Plattand Diamond trace the defense to Hebrew law, and also find the doctrine of criminal re-sponsibiliry a recognized pan of Greek and Roman philosophy. (Platt & Diamond, The

Oigins of the "Right andWrong" Test of Criminal Responsibiliry and lts Subsequent De-velopment in the United States: An Historical Survey (1966) 54 Cal.L.Rev. 1227.)

t<7

Psopu v. SxrNNrn39 Cal.3d 765;217 Cal.Rptr.685,7M P.2d752 [Sept. 1985]

777

M'Naghten, a test known variously as the "wild beast test" and as the"good and evil test" under which an accused could be found insane only ifhe was "totally deprived of his understanding and memory, and doth notknow what he is doing, no more than an infant, than a brute, or a wild beast. . . ." (Rex v. Arnold (1724) 16 Howell St. Tr. 695,765.)7 We find noth-ing in the language of Proposition 8, or in any other source from which theintent of the electorate may be divined which indicates that such a funda-mental, far-reaching change in the law of insanity as that was intended.t

In People v. Horn (1984) 158 Cal.App.3d 1014, 1029-1031 [2O5Cal.Rptr. 1191, the Court of Appeal considered the absence of any indiciaof intent to accomplish more than restoration of the California version ofthe M'Naghten test and found the use of the traditional, century old phrase-ology of M'Naghten persuasive evidence of an intent to return to that test,notwithstanding the apparently inadvertent use of the conjunctive "and. "

We conclude, as did tt "

Cou* of Appeal in Hornthat section 25@) rein-stated the M'Naghten test as it was applied in California prior to Drew as

the test of legal insanity in criminal prosecutions in this state.e

IV

(2b) Although the People agree that the purpose of section 25(b) was toreturn the test of legal insanity in California to the pre-ALl-Drew versionof the M'Naghten test, they argue that reversal of this judgment is notrequired because both prongs of that test are actually the same. The findingsof the trial judge in this case illustrate the fallacy inherent in this argument.It is true that a person who is unaware of the nature and quality of his act

'The development of the "good and evil" test in England prior to M'Naghten s Case issummarized in Platt and Diamond, op. cit. supra.

tA test of insaniry requiring that a defendant meet both prongs of the M'Naghtetr testwould not, of course, carry out the intent that was express in Proposition E and in thematerials supplied to the voters. That intent, insofar as the criminal justice system is con-cerned, is deterrence of criminal behavior. (See People v. Smith (1983) 34 Czl.3d 251, 258[93 Cal.Rptr.692,667 P.2d 149].) A person who does not know his act is wrong is notlikely to be deterred by the prospect of punishment for wrongful conduct. Nor is there aprospect that one who does not know the nature of his act will be deterred.

eln somewhat more colorful language, the Coun of Appeal "decline[d] to interpret thestatute as enacting a new drooling idiot test in place of the century old M'Naghten standardmerely because it uses the single, and often misused, conjuncrive'and.'That conjunctive istoo thin a reed to support such a massive doctrinal transformation." (People v. Hom, supra,158 Cal.App.3d 1014, 1032.)

I58

778 Propre v. SruNNrn39 Cal.3d 765:217 Cal.Rptr.685,704 P.2d'752 [Sept. 1985]

by definition cannot know that the act is wrong. In this circumstance the

"nature and quaiity" prong subsumes the "right and wrong" prong.ro

The reverse does not necessarily follow, however. The expert testimony

in this case supported the findings of the trial court that this defendant was

aware of the nature and quality of his homicidal act. He lmew that he was

committing an act o and was intended to, kill a

human being. He w that the act was wrong be-

cause his mental ill that the act was not onlymorally justified but was expected of him. He believed that the homieide

was "right."

The People argue further that section 25(b) was intended to "clarify" the

meaning of the right/wrong prong of the California M'Naghten test by es-

tablishing that the "wrong" which the defendant must comprehend is a

legal, rather than a moral wrong. Under this formulation this defendant,

who was able to recognize that his act was unlawful, would not escape

criminal responsibility even tho:ugh he believed his act was commanded by

God. We fal to see the manner in which section 25(b) conveys this clari-

right or wrong.

In any event, past decisions do not suPPort the People's argument that

under the California version of the M'Naghten test a defendant who could

comprehend that his act was unlawfuI could not be legally insane. That was

certainly not the understanding at the time of the adoption of the Penal Code

of 1872. The notes accompanying section 26 of that enactment refer to

rolllusrrative of this is People v. Richardson (1961) 192 Cal.App.2d.166, 172-173 ll3Caf.iptr- 321], in which the use of the conjunctive "and" in the insanity instnrction was

criticized and held erroneous, but not prejudicial because the defense was that the defendant

had ..blacked-out. " "Under these circumitances, where the only evidence of insanity offered

Ui ttre appettant was 'blackout' periods, there can be no relevance of a distinction between.ffuo",i"'g'rh" narure and quality'of his act' and 'distinguishing between right and wrong in

relation to the act

(CEB, op. cit- supra, at P. 261.)

't (o

Propu y. SxnqNen39 Cal.3d 765;217 Cal.Rptr. 685,704 P.2d152 [Sept. 1985]

779

People v. Coffnan, supra, 24 Cal. 230, which, as we have observed, is thecase in which the M'Naghten test was recognized as being applicable in thisstate. The Cofimnn opinion, in addition to stating the test, considered thestandard of proof, quoting as it did so: "Mansfield, Chief Justice, in Bil-'lingham's case, 1 Collinson on Lunacy, 636 . ..: 'To support such a de-fense, (insanity,) it ought to be proved . . . that the person was incapableof judging between right and wrong; . . . that at the time he committed thbact he did not consider that murder was a crime against the laws of Godand, nature . . . ."' (24 CaI. atp. 236, italics added.)

No such restriction on the availability of the insanity defense was reflectedby the standard instruction on insanity, CALIC No. 4.00, prior to Drew.That instruction did not make a distinction between moral wrong and legalwrong, advising the jury only that if the defendant was not capable of un-derstanding that his act was "wro[g," he should be found insane.r2 Nor isthe limitation urged by the People stated in People v. Kelly, supra, IOCal.3d 565, our last p1e-Drew application of the M'Naghten test. There westated: "Insanity, under the California M'Naghten test, denotes a mentalcondition which renders a person incapable of knowing or understandingthe nature and quality of his act, or incapable of distinguishing right fromwrong in relation to that act. (People v.llolff (1964) 6l Cal.2d 795, 801

[a0 Cal.Rptr. 271,394 P.2d 959].)" (People v. Kelly, supra, 10 Cal.3d565, 574.) We did not suggest that such a limitation was relevant to theevidence and findings in that case where the trial court had deterrnined thatthe defendant " 'was not capable of understanding that her act was wrong.' "(Ibid.)

The concept of "wrong" was not lirnited to legal wrong in People v-Wolff (1964) 61 Cal.2d 795 [4O Cal.Rptr. 271, 394 P.2d 959]. There thiscourt explained that the California version of the M'Naghten test had beenliberalized by holding that "kuowing" in the sense of being able to verbelizethe concepts of right and wrong was insufficient to establish legal'sqniry.Rather, the defendant must "know" in a broader sense-he must appreciateor understand these concepts. Tracing the evolution of the California testwe summarized the cases from which the then applicable instruction hadbeen derived, stating: "(See, e.g., People v. Willard (1907) 150 Cal. 543,554 t83 P. l24l ['if he understands the nature and character of his actionand its consequences'l; People v. Harris (1914) 169 Cal. 53,61 [145 P'5201 ['having mental capacity to know and understand the nature and char-acter of the act he was committing"l People v. Oxnam (1915) l7O Cal. 2ll,213 U49 Cal.Rptr. 1651 ['If appellant . . . had sufficient mental capacity toappreciate the character and quality of his act, knew and understood that it

r2See footnote 4. ante,

L50

7E0 Proprr v. SxrNNen39 Cal.3d 765:211 Cal.Rptr. 685, 704 P.2d7SZ [Sept. 1985]

wzrs a violation of the rights of another . . . , if he had the capacity thus toappreciate the character and comprehend the possible consequence of hisact'l; Peoplev. Morisawa (1919) 180 Cal. 148, 150 [179 p. 888] [.if thedefendant . . . did not appreciare the act he was committing']; peopre v.Gilberg (1925) 197 cal. 306, 314 t3l l24o p. 10001 ['he appreciated thenature and the quality of the act'); People v. Welk (1949) 33 Cal.2d 330,

.2d 531 and appreciate thatand co . . . .),' (people v.Cal.2d, cases is it suggestedwhose ieve that his act was

morally correct could not be found insane if he understood that the act wasunlawful.

cases subsequent to cofiman accept inability to appreciate morar wrongas a component of the California test of legal insanity. (See, e.g., peoplev. McCanhy (1896) 115 Cal. 255,263 [46 P. 1073], approving as a correctstatement of the law an instruction that insanity did not encompass moralperversion of a defendant who knew that "the deed is a criminal act, andwiong in itself"; People v- Gilberg, supra, 197 Cal_ 306, 314, rejectingmoral perversion as an acceptable test because a defendant might commitserious crimes "and know at the time that the deed is a criminal act, andwrong in itself," and yet escape punishment.) Thus, although it has longbeen held that "moral insanity," arising from a "perverted" moral senseand brought on by mental illness, is not legal insanity (see people v. Nash(1959) 52 Ca1.2d36,45 [338 P.2d 416'j; People v. Kerrigan (1887) 73 Cat.222,224 U4 P. 8491), our cases repeatedly distinguish awareness that anact is "wrong" from knowledge of its legal effect, i.e., that it is unlawful.(See Peoplev. Wolff, supra,6l Cal.2d 795, 801; People v. Coleman, su-pra, 20 Cal.2d 399, 4O9; People v . French (1939) t2 Cal.Zd 720, 73O lB7P.2d 10141; People v. Sloper, supra,198 Cal. 238,245; People v. Witlard(1907) 150 Cal. 543,554 [89 P. 124]; People v. Kerrigan, supra,73 Cal.222,225 ["If the defendant had sufficient mental capacity to appreciate thenature of her act; if she knew and understood that she was violating therights of another by an act which was in itself wrong, and which was pro-hibited by the law, and the commission of which would entail punishmentupon herself,-. she is responsible to the law regardless of anyperversion of the moral senses, however, great . . ."].)

The rule that a defendant must know what he is doing is "wrong andcriminal" has been recognized as the accepted formulation "since the firstdecision in this state (People v. M'Donell,4'7 Cal. 134) and has been fol-lowed consistently. . . . " (People v. Daughterty (1953) 40 Cal.Zd E76, 893-894 1256 P.2d 9111, noting that the rule had been approved again in People

r51

Pr,opu v. SxrxNen39 Cal.3d 7651'217 Cal.Rptr. 685, 7o4 P.2d752 [Sept. 1985]

781

v. Wells, supra, 33 Cal.zd 330, 349-350.) Affirming the judgmertt in Peoplev. Rittger (1960) 54 Cd.2d 720,734 [7 Cat.Rptr. 901, 355 P.2d 645f , weapplied this test and concluded that the expert testimony could be understoodas meaning that the defendant did recognize that "his conduct did not accordwith sociai standards of right and legal standards of justificationill (See alsoPeople v. Sloper (1926) 198 Cd. 238,248 1244 P.3621; People v. Koehn,supra, 2O7 Cal. 605, 612; People v. Reid, supra, 193 Cd. 491, 496; Peoplev. Bundy, supra, 168 Cal.777,779.)

..:The applicability of the insaniry defense to a person whose mental illness

is the cause of an insane delusion such as that suffered by defendant, if thatdelusion rendered him incapable of appreciating that his act was wrong, wasmade clear in People v . Hubert (1897) 119 Cal. 216 l5l P. 3291. There thetrial court had instructed that "defendant 'was laboring under insane delu-sions which so permeated his reason as to incapacitate him from knowingthe difference between right and wrong, as to the acts charged in the infor-mation, and his relations with the deceased, and her actions, motives, andintentions toward him, and that he acted in pursuance of such delusions."'(119 Cal. at p. 22O.) Although we concluded that the court had erred in thisand other instructions on insanity which took from the jury the factual issuesas to the existence of the delusions, no question was raised as to the appli-cabiliry of the M'Naghten insanity test to insane delusions which render theindividual incapable of appreciating the wrongfulness of his conduct.13

Thib understanding of the M'Naghten test was further affirmed in Peoplev. I4tillard, supra, 150 Cal. 543,554, where this court explained: "Thatinsanity may be available as a defense to a crime charged, it must aPpearthat the defendant, when the act was committed, was so deranged and dis-eased mentally that he was not conscious of the wrongful nature of the act

rsApplication of the M'Naghten test to this type of mental illness was anticipated by thejudges who first formulated the test by the Houseof Lords-"If a person, under an in an ofiense inconsequence thereof, is he thereby swer must ofcourse depend on the nature of the on as we didbefore, namely that he labors under such partial delusion only, and is not in other respec6insane, we think he must be considered in the same situation as to resPonsibility as if thefacts with respect to For example, if under the influenceof his delusion he su of attempting to take away his life'and he kills that man would be exemPt from punishment.If his delusion was erious injury to his character atrd

fortune, and he killed him in revenge for such supposed injury, he wouid be liable ropunishment-" (M'Naghten's Case, sipra, 10 Clark & Fin. 2O0,2ll [8 Eng. Rep. 718'

st to an insane delusiondelusion first suggested

Jl"":: #:"l;::lffi:the defendant believes his act is lawful or morally justified.

r61-

PBoprB y. SxrNNBn39 Cd.3d 765:217 Cal.Rptr. 685,7U p.2d7SZ [Sept. 1985]

If he has reasoning capacity sufficient to distinguish between

and character of his action and its consequences,-iit is wrong and criminal, and that if he does the actpartial insanity or the existence of such delusionsuffcient to relieve him from responsibility for his criminal acts.,'

If the mental ilhsss is manifested in delusions which render the individualincapable either of knowing'the nature and character of his act, or of un-derstanding that it is wrong, he is legally insane under the california for-mulation of the M'Naghten test.

Respondent cites no decisional authority of this state for the argument thatthe right/wrong prong of the california M'Naghten test of insanity does notencompass awareness, or lack thereof, that the defendant's act was inher-ently, or morally wrong. Reliance is placed instead on a single out-of-statecase, Cluse v. State (Alaska 1962) 369 P.2d 997, 10O3, overnrled on an-other point n Fields v- State (Alaska l97l) 487 p.2d 831, 836 t65 A.L.R.3d680]. Madfestly, r,vs sennsf infer that a 2O-year-old decision of the Alaskasupreme court prompted the drafters of Proposition 8 to believe that thelaw of california required "clarification."r5 The decision in that case in no

r'American Psychiatric Association, Diagnostic and Statistical Manual of Meatal Disor-ders (3d ed. 1980) pages 181-193

rWc do not find the reasoning of Chase persuasive. The court concluded that if the twoprongs of the M'Naghten test were disjunctive, "the htellect must be divided into two

t6?

Ppopn v. SxrNNEn39 Cal.3d 165;217 Cal.Rptr. 685, 704 P.2d752 [Sept. 19851

way supports a conclusion that the electorate believed such clarification tobe necessary or understood the test of legal insanity to be established bysection 25(b) would permit a defendant to be found sane who because ofmental illness believed that God commanded and expected him to kill an-other human being and that therefore the killing was morally justified andwas not "wrong."

i

Courts in a number of jurisdictions which have considered the questionhave come to the conclusion as we do, that a defendant who is incapable ofunderstanding that his act is morally wrong is not criminally liable merelybecause he knows the act is unlawful. (See, e.g., People v- W'ood (L962)12 N.Y.2d 69,76 [236 N.Y.S .2d 44, 187 N.E.2d lL6); People v. Schmidt(1915) 216 N.Y. 324,338-340 U10 N.E. 9451; State v. KirHtan (1958) 7utah2d 108, 110 [319 P.2d 859]; cf. Statev. Allen (1957) 231 S.C.391,398 [98 S.Ed.2d 826]; State v. Carrigan (1919) 93 N.J.L. 268,273 llOSA. 3151.) Justice Cardozo, in an opinion for the New York Court of Appeal,eloquently expressed the underiying philosophy: "In the light of all theseprecedents, it is impossible, we think, to say that there is any decisiveadjudication which limits the word 'wrong' in the statutory definition tolegal as opposed to moral wrong. . . . The interpretation placed upon thestatute by the triai judge may be tested by its consequetrces. A mother killsher infant child to whom she has been devotedly attached. She knows thenature and quality of the act; she knows that the law condemns it; but she

is inspired by an insane delusion that God has appeared to her and ordainedthe sacrifce- It seems a mockery to say that, within the meaning of thestatute, she loows that the act is wrong. If the definition propounded by thetrial judge is right, it would be the duty of a jury to hold her responsiblefor the crime. We find nothing either in the history of the rule, or in itsreason or purpose, or in judicial exposition of its meaning, to justify a

conclusion so abhorrent. . . [1] Knowledge that an act is forbidden by law

appreciate the nature of the physical acts he is performing. Further, as the evidence in thisciie suggests, it is not uncoflrmon that a person who suffers from one of the various formsof mental illness falling within the category of schizophrenic disorhers fully understands the

of course that he had a right to do but that was his purpose; that was in fact his intent. Headmits to that in no uncertain terms.

"Furthermore, in general, the nature owith the people's cognitive abilities; thatof mere knowledge, like the knowledgeof the capacities tiat is negated by paranoid schizophrenia . . . .

"With-regard to the nature of thqact, . . . he knew that he was holding a cord; he knewthat what was holding the cord was his hands, what the cord was wrapped around was a

neck, that was the neck of a human being."

783

t64

784 Peoplr y. Sxrxxer39 Cal.3d 765;21'7 Cal.Rptr.685,704 p.2d752 [Sept. 1985]

will in most cases permit the inference of knowledge that, according to theaccepted standards of mankind, it is also condemned as an offenseigainstgood morals. obedience to the law is itself a moral duty. If, however, thereis an insane delusion that God has appeared to the defendant and ordainedthe commission of a crime, we think it cannot be said of the offender thathe knows the act to be wron g." (people v - Schmidt ( 19 15) 216 N .y . 324 ,338-340 U10 N.E. 945,949-9501, italics added.)16

The trial court found, on clearly suffcient evidence, that defendant couid

Kaus, J., Broussard, J., Reynoso, J., and Lucas, J., concurred.

MosK, J.-I concur in the excellent analysis of the majority. I write onlyto relate some relevant background. As oliver wendell Holmes observed,"a page of history is worth a volume of logic." (New york Trust Co. v.Eisner (1921) 256 U.S. 345, 349 t65 L.Ed. 963, 983, 4t S.Ct. 506, t6A.L.R. 6601.)

ln 1973 I wrote a separate opinion in People v. Kelly (1973) 10 cal.3d565, 578 U11 Cal.Rptr. t7l, 516 p.2d 8751, urging that the M'Naughtontestr be "disavow[ed] as outmoded and unsupportable in either medical sci-ence or law, " and that pending legislative action the American Law Instituteforrrulation be adopted by trial courts as the test for insanity. (ALI ModelPen. code, $ 4.01.) At that time six states had adopted the ALI formulation,as had every federal circuit but one. (Id. at p. 582.)

within five years a majority of this court had come around to my view inKelly and judicially adopted the ALI test in People y. Drew (1978) 22

shelter behind a professed belief that their crime was ordained by God, just as this defendantattempted to shelter himself behind that belief. We can safely leave such fabrications to thecorrmon sense of juries." (Schmidt, supra,216 N.Y. at p. 340 [ll0 N.E. at pp- 9a9-950].)

rThe_majority spetl the test M'Naghten. All the members of this court spelled it M'Naugh-ronin Kelly, although I there noted the numerous variants of the spelling. (Ibid., fn. t,ilnthe-int€rests of clarity and consistency I believe we should adhere to rhl spelling we usedir Kelly.

L6s

Px,opre v. SruNxrn39 Cd.3d 765:217 Cal.Rptr. 685, 704 P.2d152 [Sept. 1985]

785

Cal.3d 333 lL49 Cal.Rptr. 275, 583 P.2d 13181. Despite my invitation inKelly the Legislature had not taken any action, and it did not do so afterDrew. I can only surmise that the legislators' disinterest was born of the

belief that the test of insanity was a judicial problem, since the M'Naughtontest had originally been court-created.

Just as trial courts, Prosecutors and defense counsel were'achieving a

reasbnable d6tente with Drew, the initiative measure l:nown as Proposition8 was prepared and submitted to the electorate; It contained the latent am-

biguity discussed in the majority opinion. Therein lies one of the problems

inherent in attempting to adopt rules of evidence and arcane principles oflaw by popular vote. It is somewhat comparable to the public deciding bypopular vote the appropriate technique for surgeons to employ in brain sur-

I am convinced that the use of "and" inStead Of "or." Would have been

discovered in the traditional legislative Process. In an assembly committee,on the floor of the assembly, in a senate corlmittee, on the floor of the

senate, in the Governor's veto oPPortunity, such inadvertence would likely-- have been detected, or if the choice of words was deliberate, such intent

would have been clearly declared. In an initiative measure, however, no

revision oppornrnity is possible and no legislative intent is available; the

voter has only the choice of an enigmatic all or'nothing.

In this instance the choice given voters was encumbered by at least 12

subjects subsumed within what was titled Proposition 8. The numerous sub-jects were itemized by the Attorney General in his prepared title for sub-

mission to the voters and he concluded with a.catchall, "and other matters."I remain convinced that Proposition 8 was invalid as a clear violation of the

constitutional prohibition against multiple subjects. (Cal. Const., art. fI,$ 8, subd. (d); see my conc. & dis. opn. in Brosnahan v- Eu (1982) 31

Cal.3d 1, 6 [181 Cal.Rptr. 100,641 P'2d 200].) For example, it wouldappear impossible to rationalize, as but one subject, a return to the

t"t;Naugtrton rule of insanity and a guarantee of school safety. Regrettably,by a four-to-three majority, my colleagues expediently failed to invalidate

the initiative. Had they done so, much of the subsequent uncertainties and

incongruities in the criminal law would have been avoided-

Since I am bound by stare decisis to accePt that untoward result, I must

now join in undertaking the often thankless task of trying to inject some

rational meaning into the numerous disparate subjects covered by Proposi-

tion 8. The clumsy effort to "return to M'Naughton" is but the latest con-

troversy.

L66

Ppopre v. SxrNNen39 Cal.3d 765;217 Cal.Rptr. 685,7M p.2d,752 [Sept. 1985]

The analysis of the majority being as reasonable and pragmatic as the,circumstances justify, I endorse their opinion.

BrRn, c. J., Dissenting.-In June of L982, rhe voters adopted a balrotmeasure which radically altered the test for criminal insanity in this stare.(Pen. Code, $ 25, subd. @), added by Initiative Measure, primary Elec.June-8, 1982, popularly known as prop. g.) I cannot ignore the fact thatthey adopted Ianguage which unambigubusly requires th-e accused to dem-onstrate that "he or she was incapable of knowing or undersranding thenature and quality of his or her act and of distinguishing right from wiongat the time of the commission of the offense. ,, 1ibid., italici added.) Thereis nothing in the statute, in proposition E as a whole, or in the ballot argu-ments that implies that the electorate intended ..and,'. to be ,.or." Howeverunwise that choice, it is not within this court's power to ignore the expres-sion of popular will and rewrite the starute.

Since appellant failed to establish his insanity under the test enunciated inPenal code section 25, subilivision @), I cannot join the decision of mybrethren.

i

II

III

t

iI

I

I.i

I

-t

!I

-tI

III

II

;

t6?

APPENDIX C:

& 1026 PLEA OF INSANITY;

APPoINTI'IENTANDTESTIt4oNYoFPSYCHIATRISTS

AND PSYCHOLOGISTS

168

Titlc 6 PLEA s 1026

S 1026. Plca of insanitl'; scparatc trial of other pleas; presump-" tion of sanity; trial of sonity issuc before same or uew

jury; verilict; scntence; deteminatiou of restoration

of sanity; proceedings for release from state hospital;

transfer between hosPitals

(Added by Stats.1927, c.677, p. 1149, S 4. Amended by Stats.1935'

c.318, p. 1075, S 1.)

Hlsiorlcal Notc

Thls sectton, rs sdded ln 1927. coYeredtha Eubject mattgr DreYlously treated Inforrner sectlon 116?.

The EubJect of the torm of verdlct ot notFullty by reason o! lnsanlty was previouslytreated ln lectlor L161.

221

t59

APPENDIX D:

& 25 DII.,IINISHED CAPACITY, INSANITY; EVIDENCE;

A|4ENDI'IENT OF SECTION (a) JUNE, 1982

PRELIMINARY PROVISIONS

assistance necessary to Promote th-e interests of justice and protect the

fi;;ri;tf ,n. public, or may be ordered by the court to do so, if the crime

:'#;;J in substantially relared to the qualifications, functions, or duties of a

licensee'"io, purposes of this section, the term "license" shall include a permit or a

certificate issued by a state agency'

n "state agency" shall include any state

created pursuant to the provisions oflicense and regulate individuals r'r'ho

ssions..)

Htstorlcal Note

Former $ 23, enactcd in lE72' p-roviding for

;"":;":*'i:.:,"#s:,::,'.l;;:.:'f611'!o,l'"''"''LIbrarY References

Criminal Larv e9t2.5(1, 2), 982'6(3)'

#.;'; i;iT' I i l*I, i"I'J L: l, *o

S 24. Cltatlon of code

TXs Acr, How ctTED. This Act, rvhenever cited, enumerated, referred to, or

;#;,-;ay be designated simply as The Penal code, adding, when neces-

sary, the number of the section'

(Enacted 1872.)

Cross References

t70

s2s

Title of the act, see 5 l'

Criminal law el130(5)'Statutes e279.

Llbrary References

C.J.S. Criminal [-au'5 l8l4'C'J.S. Statutes 5 442 et s€q'

Notes of Declslont

l. In general

In thc casc of Earle v. San Francisco Boardof iducation (1880) 55 C. '189' 6 P'C'L'J' 69' the

tirle.'"

S 25. Dlmtnlshed capaclty, tnsantty; evldence; amendment of sectlon

(a) The defense of diminished capacity is hereby abolished. In a criminal

".iion, as u'ell

", "ny juvenile court Procegd.i-ng' evidence concerning an

accused person,s into*-i.ition, tr"r-", rnental illniss, disease, or defect shall

l-77

s2s PRELIMINARY PROVISIONS

not bc adrnissible to shorv or nr-gate capacity to form the particular purpose,intent, motive, nralice aforelhought, knorvlcdge, or other nlcl.rtar statc re-quired for the commission of lhe crime chargcd.

.(b) In anv crirninal procecding, including any juvenile court proceeding, inrvhich a plea of not guiltv bv rcason of inslnity is errtered, thisdefens..Ifr"iib \vhen the accused person proves by ap he

-or she rvas incapable of knorving or, y of his or her acr and of distinguis[ineri commission o[ the offense.

e '---'D

(c) Notrvithstanding the forcgoing, evidence of diminished capaciry or of arnenlal disorder mas be considered by the court onl), at the rime of .*r.n.ln!or other disposition or conrmitment.

sions of this secrion shall not be amended by the Legislaturee passed in each house by rollcall vore enrer;d in rhelournal,he membership concurring, or by a statute that bccomes.hen approved by' the etectors.

(Added b-r'Iniriarire \lcasure, appror.ed b1,thc pcoplc, Junc g, 19E2.)

Cross RefcrenccsIrrsanitl' plc.a. scc ! 1025 et scq.

La*' Rctlerl CommenlarlesAdmissibilitt o[ osvchiatric testimonv in rhc Prop. E putzlc. Bill Blum and Gina Lobacoguih phasc-of biiurcared rri"iir

's:ii;r't i"li (r9E5i 5 car.Larvl.er No.2. p.29.after rhe reforms of the diminished caoacirr

dcfense? (1984) I6 Pacitic L.j.:-OS.- --'--"' Rclcvance of innocence: Proposition 8 and

Courts esamine proposition 8. Jamcs H. thc -diminishcd

capacilv defense. (1983) 7lChristiansen (1985) 5 Cil.I:rv1cr No-ii, p-. zj. C'L.R. I197.

- Drunk-driving murderand People r'. \\'arson: \'iclims'molcmenl: An idea rvhose time has!.1q.T:li.^. be implied? Jcffery \\'. crass comc. Frank carringron and ceorge Nichol.(l9s{) l'l Sourhu'esrern L.R. .177. son (l9g{) r r pcpperiine L.Rev. l.

Llbran. ReferencesCriminal [:s'e.16 io 58.C.J.S. Criminal [:s ! 39 er seq.

\fESTI-l$' Elecrronlc ResearchSc'e \\'FSTLA\\' Elc'crronrc Rcscarch Guide follorving rhe prcface.

liotes of DeclslonsAmerlcan latl lnstttute test 6Commltmcna to menial lnstltutlon l6Constructlon and appllcatlon 2Evldence. sufflclencr. tOExpert nllnesses IIInstructlons

In general l7lntoxlcatlon causlng tnsanlty l3

lntoxlcaaton causlng lnsanltv 12, ll

M'Naghten resr 3.5In general 3Kloulng and understandlng nature and

quallty of act 4Rlght and u'rong theory s

lforal lnsanlty t{ltoronltv tPartlal lnsanltv 9Rer lerr, lE

ln general 12 Rrghr and urong rheon, Ir'Naghten resr 5Instnrcrlons t3 Tlme of lnsanltv 15Irreslstlble lmpulsc 7 Valldlry IKnoulng and understandlng nature and qual.

It)'of act, M'Naghten test 4

88

L7?,

APPENDIX E:

INDIVIDUAL CODING SHEETS

L?3

Date...

I}IDNID'J-AL CODI}G SI]EEII

Identification No-

REPORT BY DEEI{DANISE.F REPORT IN REGARD TO CRT},E(rvithin 48 hours of offense)DII,OGAPHIC

Age.. .. ... ( . .

RaceIallrite...(.Black. .. ( .Other. .. ( .

EducationGrade school...i'ligh scltool....College.

Hploylnent history(dr"rrilg last 5

Steady.Occasional.....Chron-ica1lY un-

CLINICAL OBSP.\ATIO}tr

Level of ooPeration.).).)

Presence of

Druq use. .... (...

Alcohpl use....... (...

ttrallucinations.... (. - -

Delusions .... (.. -

Sane. .. . ( .. -

Insane. .(.--

Recollection of crimeNone. ... ( -.

BY I,EIIIAL fmALTH ffiAl;llNm'

Present orientationGood-Fair.Poor.

SuspecLed faJcing... ( . - . )

\

)

)

years )

Arxiety. ...(..)Depression. . .. .. (. . )

Paranoia. .. (.. ) Present use of PsYchotroPictledications. .. .... . ( . - - )

Psychiatric Diagn:os

NGI recorrrendation-

NGI adjudication. -.

L74

APPENDIX F:

SEI'IISTRUCTURED INTERVIEW GUIDE FOR

FORENSIC MENTAL HEALTH EXAI,IINERS

l-75

SEI,ISTRTrcTURP I}IIBVIEI^] GUIDE

FOR

EORENSIC D(PBT WITI'{ESSES

Doctor, sirtce you have been involved with forerrsic

mental health assessnents and NGI reccnrnendations for a

period of more than ten years' 1 arn interested in Iearning

your opi:rions on wLrat goes into the formulation of 1'our NGI

reccrrunendationandwhratdifficu].tlesl,ouhaveencor.rntered.

For the duratron of tLr-is tape recorded intertis'v' could you

ela]co::ate on this '

VlttY don't You begin

consider when 1'ou form an

the accused'

by talking about the factors You

opilion about the nental state of

TOPICS

r. I\bthod a:rd Factors u=t P:-Lhe rJ<arniner to Braluate

lrlhrether tne Pefendant is NGI'

Probe guestions: Hot'l do you arrive at yor'r opinion

tlrat the exarnilee was NGI'? What are the most important

factors 1ou consider in na'king your evaluations? Do you

consider psychological tests as helpful and accurate in

arriving at your reccrr-rnend'ations? Do you use a standard'

format in your assessner-rts' or do you follow any

particular reccnuirended model?

2. Effesbs of tlre Change in Legal Tests froml971 to 1987'

t76

Probe questions: Has there been a change in the way

you arrive at a reccnrlEndation of NGI since L982? If

there has been a change, what has changed?

3. Relation of Legal Concepts to Concepts ofPslzc6ontthologY '

Probe questions: In arriving at a reccnmendation of

NGI, how do ]/our concepts of ps),chotEthology match the NGI

criteria of the co'urt? And hovu does th-is differ before and

after 1982?

4. Difficrrlties Fhcountered in the Examination.

Probe questions: lrihrat do you consider to be the most

difficult aspect in perfonning your assessTlent and making

vour recplrmendations to the court?

Is there anythilg you vrould 1iJ<e to say about this

j-nterview process?

Thanl< you Doctor. As lzou know there will be a second

j-nterview within thj-s rcnth during rt'hich time I will ask

you to elaborate on scme of these sarne topics.

t??

APPENDIX G:

SAIIPLE LETTERS BY FORENSIC I{ENTAL HEALTH EXAMINERS

t?8

Dear Jud;o ( 1978 )

As diroctod by yo.lr ordor of August 29t 1978, I have performed a psy-

sane ar the timl"lrti,oliislS uSePt. 5, 1978 at theow I'ln. was alert and Co-rts from other PsYchiatnlsts,Pre limlnar1r 6xamlnat lon.

I-lr. ls a 23 year oId malo, who was born j'n an'd has

Iived. most of his irr6 ln Northern callforrrla. Ee lndicates that hisfatfr"o dled when he rvas vory young and that hls mother became a drugacldlct. Hls descrlbes hls 6nf fanood as chaotLc' ApParently he r'ras

ralsed by an aunt.

I,ir. lndicates that he was first tnstltutlonallzed on theltal at tho age of B. For thenths out of custodY, and forthat tho longest he was out of an-escrlbos blmseLf as havlng llved

alrnost aII of hls llfe in Jalls o4 mental hospltals.

]il,o has only a 3rd grade educatlon, and.he s3y: that he does

noi read or wrlte wol1. He i'as no regulan occupati'on, but Just beforehis curront arrost h6 was dolng constir.:ctlon work. He has neven marrlod.

h shootlng a man. The victln, tuho

, indJ.cates that he had sir,rPIYsked that the steroo be turned dovm.ave slar,tned the doon ln hls faceo

leged that I'Ip. shoi h1m.

lir. lndlcates that he remombens almost nothlng of. the lncldent.i" r.yr toat he had been uslng drugs heavi.ly just beforo tho crime,.rartilularly P.C.P. r{o ren:embers iomeono balglng on hls doon, and he

reirenbers the vletlm reachlng into hls poclcet for sonethlng. H.6-a1sorecalls hearlng a gu1 shotl but he slys that he remembers nothlng.olse until he forrE hlmself at a frlondis house and was told that thepollce lrere looklng for hlm.

.tccordlng to one of the prevlous-plyghlatr'lc rleports, from D::.iir. tofa hlm thlt he had-titea to reessure the vlctlm thattho ehootfng was en eoelaen[. Thls s€emF Inoonslstant wtth l'1r.statement t6 me that he dld not reilomben enythlnB that happangd itEirthe g'.rn went off .ll6en DIr. was orlglnally evaluated soon after the shootln3: hewas fotrnd to be too pararrdra ln-regard to hls attorrrey to. st8'nd trlal.He was suUsequently tneated at Atraicadero and rocently returned tocou:rt as able to cooporate wlth counsel.

L79

pago 2

oals I'1r. .- to be orlontoddenies halluclnat j'on s, and,

aranold feollngs ln the Past, heo!r. Ho is able to conversodePressed or anxlous'

have sufflcient reason to bollevoo at the tima of his allegod offense'sr the event does not constitutoescrlbe hlmself as acting fromsoveral day Perlod leading uP

on unusual.- He olqPressed hlsvo contrlbutod to the cnlme, andlminlshed caPacitY defense 'ad orevtouslY descntbed hlmsoIf

account- of hls drug use thusIt to evaluate. Although -he hass (9 bY hls account), ^

I do not

hls offense. ne'wai psychotlc at the tlme of

Respeotfully submltted,

Dear Judge ( 19BI)

Re:

Pr:rsuant to yor:r request, I have examj-ned

who has been charged with violations of S

After a number of missed appointmentst I m

Jr:fy 29th,cooperative witness: However, he was notwerl contrad.ictory. Some were not logicaJ.to whether or not Mr. was, anar/orright with me. In the course of prepari:reMrl fjJ.e concerrcing Mr'of the checks whi.ch Yrere s5gned il a biza

180

Current Offense: Mr. said. that he was recentlY arrested. for a PettY theftffid-r"Xffii#'ror" ,*il iliistr an a nair. fir-e..-.r wasn't rsa.rv trying to

- !----l |^ laarra i

;a;"1 t1.'). i{hen apnrehend'edfor this offense, h: was for:nd to have irtnever

l'1r.It 9Q clafs'rconipelenc

il;;";;"!"i"" "".ai't caras and' checks which were not his' Mr'

.-.:^- ^r +L^-^ i+:i:"'Jiil'i;T"";;ir, i", il"*."*" i-nto possession o.r rhese it"r::_.-H:":1"::u:.ln:T'crarrt-Leu' uu lllti u^-d(jurJ rruw rrv ve"v -'-- - _ says that ho was onbut never told me how. Hettcame across them", etc' Mr' '

? ---..'l ,! -orrar hqtra

:";J;ffi-"ffih11"";"[;" ;L"l*""r-r"=-j"u! havturg a gcod time,..r wor:]'d never have--r-- !L-r tL^ ^l,raalre LraFA nen

cashed themrr. Indeedr Mr. r"v! .r..t to gr:arantee that- the check:-':I:-l*""::ilH ;'J":r;"#til;',,[6,,, ',Dnperll"n4", etcl rrNobody cor:Id cash them then"'

was for:nd. ilconrpetent to stand lrial fo]-lowing his arrest and spent

at state Hospi..al on-a PC L37O. He [as now been raturned as

for trial and. is ou! on his Or+n Recognizance'

l'1r. is not a

a-i recorC but for thesn hospiia-Iized for PsY

the oulpatient dePar+"ment i:tis on anti.psychoti-c medication'

o

l4r. who almost completed the l2lh grad'e, lives at home I'on dr-abi-Ilty"

He says rhat his ,,disabjl,tr,, ,,r;;.;'-;";": llt his receiving a medlcal discharge

frcn ine Coast G'rard (atter 18 months ser ace/ '

Mental- Slalus D-:"n: !1r.Ftnat ne is somewhat 'iaguehe does nc'- r'attendt' wei]- to

(UlPears hj-s stated age ' He is somewhat " sPaced"

and smiles i:rappropriately from tjme to ti'nre' 'At tjnes

[ir" u"=:ress al- hand' On the other hand' he is veri'

181

pleasant and. cooperative. His dress was somewhat inappropriale, hj-s speech

iomevrhat effemllate at ti.nres: Hence, he presents a somewhat eccentric appearance.He denies psychiatric symptomatolory and any history of serious thought disorderor mood aisoider. He does not appear to be _actively psychotic, but may well be jrta borderljne condition. He appears to be of no better than average iltelligence.

Irnpressions: Mr. appears to be sufferi-ng from lorrg-term persona-lity problems

""dffitric probJ-ems of a psychotic nature. He is q:rrently on aatipsychotic

med.itallon. He is aware of the crjminality of having 1n his possession the itemsnoted,. He 1s aware of the fact that, stolen or not, he was i::, violation of the lawof. the land.. On the other hand., his explar:.ations for his beha.rlor - jJ sj-ncere and

ac'curate - aro somewhat bizare. It is.nV i.nrpression that Mr. was il a

dlst:.:rbed. state of 'nr-i:rd when he took possession of these items: Mr. i-ndeedt

mqy bo ln a d_ish:rbed. state of mj-nd most of the tjrne. I thfuk he lacked the cri.minali-ntent a11d. the capacity to conform necessarJr to hold hi-m responsible for thesecri.nes, He isran idiosyncratic i-ndividuaL for whom these acts,were out of character.(tnis is based. on rrv assurn'ption that he has not been a repeat offender il this sortof behavior).

Reconanendations: Mr. was unable to conform when lrrrrolved ln these offenses.ITc-IoZ5 woEa be appropriate.

thanlcilg you for referri-r:g this i:rterestlng young manr I remain

Respectfully,

tB2

Dear Judse (rgg5)

Mr. is a 24 year old white rnale, who was born in and has spent

his entire life in this area. He indicates he had e sonewhat chaotic

chr-ildhood. His ;t5qt =p"nt ti:ne at State Hospital, and-his parents were

divorced when he was young. He was raised by his father and a sternrcther'fL f,u= had problems with the Iaw since about age 15 '

Mr.hasaG.E.D.Helrasnevermarried.Hehashadavarietyofshortterm jobs, none of whrich lasted more than a feu' nronttts '

Mr. was arrested on a burglarY cnajor factor in his state of mind athave substantial psychiatric problensfrom 1983 through June 1985, when he

was closed several months later, and

to live in his car. He indicates thatthat period, and these ,u.t. ,-tirrated both by the need for money and for the,,excite[ent.,, In late July I,4r ,n =.g"G arrested for burglary, and hispa.role was violated.

|,1r. indicates that he was caught inside a narket atterrrpting to steal

sone whiskey. He says that on ule d"y in guestion he had been usilg a great

deal of alcohol, ad for sonre weeks befoie tSat he had been using variousthe curner of the store desenred to be

and his friends with disrespect' Mr'ses through a roof vent' He did tJ:isIls detaiis of making the decision and

ain how he was caught, but saYs he was

IEntaI status o<amination reveals no overt evidence of psychosis at this tfure'

He denies hallucirntion, but says thawas hallucinating- Ile does not s

he admits to being Paranoid when

historian and gives his accrcunt ofsesns, nevertheless, to have a

183

life.he beindicfeel.srapid swings in rnood.

realizilg substantial noneYthe rnarket does not seem to sp ' It was

a spur-of-the-nonEnt decis e o obtain

goods of value. I fnve no r ie not able'to disting'uish right from r-^1 .: -

ture and

quality of hr-is actl I do fficient reason to believe that he was

not IegalIY sane.

Respectf uI IY sutxnitted,

1Bl+

Dear Judge ( l-98? )

PursuanE co your request, I have eximined Mr' has been

charged wich a felony violarion of seccion 45I(d) of the Penal Code (arson) and

in the course of the invesEigaEion into this,matEer, a question has risen con-cerning Mr. stage of mind aE the'Eime of the incident.

Mr. is not in custody. On 2-I0-87'he came to ScaEe l{ospical, where Iinterviewed him for abouE an hour. He eras a cooperative buE somrshat EenEaEive,anxious witness. It was 1gy impression that he was forthrighc in his answers'

CurrenE Offense: On or about' June 25th of lasE year, llr' was arrested aft,er@Ieavingthesceneofanintentiona11y1icfire.Mr.loesnoc deny Ehe offense but says he cannot remerober actually lighcing Ehe fire. Ile

remembers being in the area and goes on to give an extensive history of psychiatricproblems which had been presenE for years and were particularly disturbing aE the

time of Ehe fire.

personal Hisrory: li.. born in 1950 in .-has spenc his life inHe left school in che llch grade because he "couldntE make it". "I

had a Iearning disorder". Since leaving schoolr,he has held--a number of jobs buthas trouble Siicking with same. "I get, depresse'd real easytr' He Boes on Co

describe., in considErable decail, problems wich "depression" which have disruptedhis life since about age 16. These "lorJ" periods last for months, have been ratherresiscanE to anci-deprissive medication,hr,;e. Ied to difficulEies wiEh peer relacion-ships, bosses, etc. and have, on occasicn, Ied to considerable suicidal rumination'

previous to the fire, Mr. had seen a nuuber of professionals in an attemPt Eo

modify whac appeared, Eo aII, Eo be a ruanic-depressive illness with considerabledepressive and only occasional "high" pe;iods'

condirion deEeriorated and ic was finaLly necessaryHospical in for about five weeks '

Mr. is noc a substance abuser anci says he has had no legal problelDs oEher than

che single fire.

I,Ir.. Iives with his parenCs who are doing "preEty good"' His younger brorherwas doing',OKttbuc has recently "gogten a girl pregnant". There apPears ro be a

posirive hiscory for mencal illneis in the family (very ofren the case wi'Eh manic-

depressive il lness ) .

Following Ehe fire, Mr.co hospiraTize hiu ac

Current MencaI Status: Hr.I'ar on Lichiura" than at t.he treuarkably effective in t.reat

s ays that he is do ing uruch

of it're fire. (tittriun is a

nanic-depressive illness. )

becter "now... lhatdrug which is ofrenI,l.nen his il lness Lras

Ltrle

i.t g

poorly controlled, he was ofEen "afrai{ Eo s1eep", pl.agued by "nighEmares" tn6'B5

l,-rrfered form "blackouEs" and "learning disabilities"'

. Mr. apPears his 20 years of age' He is ansious' tentative'himself. He is somewhat ,lot' in "computing"' He denies currenE

("I feel pretty good abouE myself") ana symptoms of psychosis (delusions'

ions, and ine iik;). He does not appear significantly depressed'

Impressions; I think Mr. .. is being srraight in reporting this history' Ichink he does su,ffer frour r long Eeru pioblem rich r""r-rrring deprestlol' To. con-

firm this inpression, I called, wiCh his peruission' one of Che physicians who

had treated him (Dr Dr' reported that Mr'

had been, indeed'very psychocic., hallucinaEing, and confused at the tine of

the fire.

CurrenEIy,unsure ofdepressionh aI luc ina E

Mr.but It haEMr.

probably sould have knownrat the cine of the offense, right from wrong,

do noE Chink he understood Ehe naEure and quality of Ehe acE- I suspecE

Ehe acE was Ehe resurE of some exrremely psychotic thinking over which

had little if anY conErol '

Recosmendations: I) Mr. was' in'my'opinion' legally insane at the tirue of

the.Coos.rission of Che cffense. D I do not see him as a danger to ochers aE this

Cime and can't see him as dangerous as long as he is involved in ongoing treafnenE'

Thanking you for referring chis inrerescing young rnan' I reuain

Respecrfully,