Defending Mentally Disordered Persons


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CHAPTER 5: DEFENDING VULNERABLE POPULATIONS

The test, also called the Product Test, is broader than either the M'Naghten test or the irresistible impulse test. The test has more lenient guidelines for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M'Naghten Rule. The Model Penal Code , published by the American Law Institute, provides a standard for legal insanity that serves as a compromise between the strict M'Naghten Rule, the lenient Durham ruling, and the irresistible impulse test.

Under the MPC standard, which represents the modern trend, a defendant is not responsible for criminal conduct "if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. After the perpetrator of President Reagan's assassination attempt was found not guilty by reason of insanity, Congress passed the Insanity Defense Reform Act of Under this act, the burden of proof was shifted from the prosecution to the defense and the standard of evidence in federal trials was increased from a preponderance of evidence to clear and convincing evidence.

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Under this new test only perpetrators suffering from severe mental illnesses at the time of the crime could successfully employ the insanity defense. The defendant's ability to control himself or herself was no longer a consideration. The Act also curbed the scope of expert psychiatric testimony and adopted stricter procedures regarding the hospitalization and release of those found not guilty by reason of insanity. As an alternative to the insanity defense, some jurisdictions permit a defendant to plead guilty but mentally ill. In a majority of states, the burden of proving insanity is placed on the defendant, who must prove insanity by a preponderance of the evidence.

In a minority of states, the burden is placed on the prosecution, who must prove sanity beyond a reasonable doubt. In federal court, and in Arizona, the burden is placed on the defendant, who must prove insanity by clear and convincing evidence. The insanity plea is used in the U. It should be noted, however, that there is no definitive study regarding the percentage of people with mental illness who come into contact with police, appear as criminal defendants, are incarcerated, or are under community supervision.

Furthermore, the scope of this issue varies across jurisdictions.

Who is likely to be involved in the legal system?

Accordingly, advocates should rely as much as possible on statistics collected by local and state government agencies. Some U. In , the Nevada Supreme Court found that their state's abolition of the defense was unconstitutional as a violation of Federal due process. In , the Supreme Court decided Clark v. Arizona upheld Arizona's limitations on the insanity defense. In that same ruling, the Court noted "We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require.

In other words, psychologists provide testimony and professional opinion but are not ultimately responsible for answering legal questions. In Australia there are nine law units. All may have varying rules see [1]. A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—.

A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—. In Victoria the current defence of mental impairment was introduced in the Crimes Mental Impairment and Unfitness to be Tried Act which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following:.

These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind". Whether a particular condition amounts to a disease of the mind is not a medical but a legal question to be decided in accordance with the ordinary rules of interpretation. However, the prosecution can raise it in exceptional circumstances: R v Ayoub Australian cases have further qualified and explained the M'Naghten Rules.

The NSW Supreme Court has held there are two limbs to the M'Naghten Rules , that the accused did not know what he was doing, or that the accused did not appreciate that what he was doing was morally wrong, in both cases the accused must be operating under a 'defect of reason, from a disease of the mind'. The defence of mental disorder is codified in section 16 of the Criminal Code which states, in part:.

To establish a claim of mental disorder the party raising the issue must show on a balance of probabilities first that the person who committed the act was suffering from a "disease of the mind", and second, that at the time of the offence they were either 1 unable to appreciate the "nature and quality" of the act, or 2 did not know it was "wrong". The meaning of the word "wrong" was determined in the Supreme Court case of R. Chaulk [] 3 S. The current legislative scheme was created by the Parliament of Canada after the previous scheme was found unconstitutional by the Supreme Court of Canada in R.

The new provisions also replaced the old insanity defense with the current mental disorder defence. Once a person is found not criminally responsible "NCR" , he or she will have a hearing by a Review Board within 45 days 90 days if the court extends the delay. Parties at a Review Board hearing are usually the accused, the Crown and the hospital responsible for the supervision or assessment of the accused. A Review Board is responsible for both accused persons found NCR or accused persons found unfit to stand trial on account of mental disorder.

A Review Board dealing with an NCR offender must consider two questions: whether the accused is a "significant threat to the safety of the public" and, if so, what the "least onerous and least restrictive" restrictions on the liberty of the accused should be in order to mitigate such a threat. Proceedings before a Review Board are inquisitorial rather than adversarial. Often the Review Board will be active in conducting an inquiry. Where the Review Board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused.

Otherwise, the Review Board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accused may pose to others. Since the Review Board is empowered under criminal law powers under s. Therefore, the nature of the inquiry is the danger the accused may pose to public safety rather than whether the accused is "cured. Moreover, the notion of "significant threat to the safety of the public" is a "criminal threat.

While proceedings before a Review Board are less formal than in court, there are many procedural safeguards available to the accused given the potential indefinite nature of Part XX.

Helping People with Mental Illnesses

Any party may appeal against the decision of a Review Board. In when the new mental disorder provisions were enacted, Parliament included "capping" provisions which were to be enacted at a later date. These capping provisions limited the jurisdiction of a Review Board over an accused based on the maximum potential sentence had the accused been convicted e.


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However, these provisions were never proclaimed into force and were subsequently repealed. A Review Board must hold a hearing every 12 months unless extended to 24 months until the accused is discharged absolutely. The issue of mental disorder may also come into play before a trial even begins if the accused's mental state prevents the accused from being able to appreciate the nature of a trial and to conduct a defence.

An accused who is found to be unfit to stand trial is subject to the jurisdiction a Review Board. While the considerations are essentially the same, there are a few provisions which apply only to unfit accused. A Review Board must determine whether the accused is fit to stand trial.

Insanity Defense | NAMI: National Alliance on Mental Illness

Regardless of the determination, the Review Board must then determine what conditions should be imposed on the accused, considering both the protection of the public and the maintenance of the fitness of the accused or conditions which would render the accused fit. Previously an absolute discharge was unavailable to an unfit accused. However, in R. Demers, the Supreme Court of Canada struck down the provision restricting the availability of an absolute discharge to an accused person who is deemed both "permanently unfit" and not a significant threat to the safety of the public.

Presently a Review Board may recommend a judicial stay of proceedings in the event that it finds the accused both "permanently unfit" and non-dangerous. The decision is left to the court having jurisdiction over the accused. An additional requirement for an unfit accused is the holding of a "prima facie case" hearing every two years. The Crown must demonstrate to the court having jurisdiction over the accused that it still has sufficient evidence to try the accused.

Essential reading for criminal practitioners, academics and students of criminal and mental health law. Home Browse All. Back to previous page.


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  • Legal Action Group Defending Mentally Disordered Persons Lawyers representing potentially vulnerable clients need to consider what special needs their client.. Contents include:- Introduction to the civil and criminal legal framework Detention for treatment under the Mental Health Act Powers of arrest under the Mental Health Act Treatment in the police station Decision to prosecute Bail Remand prisoners and transfer to hospital Inability to participate at trial: fitness to plead Evidence: admissibility, adverse inference and witnesses Defences of insanity, diminished responsibility, provocation and loss of control Sentencing: custodial sentences, hospital orders and community sentences Treatment of prisoners Appeals Essential reading for criminal practitioners, academics and students of criminal and mental health law.

    Introduction to the legal framework 2. Powers of arrest under the Mental Health Act 4. Treatment in the police station 5. For instance, a person with a very low IQ due to a developmental disability may not understand the proceedings against them. The person might not understand they are even in trouble, much less that their alleged conduct was wrong, or who the judge is or what the judge does, or who the attorneys are, or what role they play in the criminal justice system.

    Likewise, a person who cannot understand or communicate with their lawyer cannot assist in their defense.


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    • The evaluator then prepares a report outlining his or her opinions on whether the defendant is competent. If the opinion is that the person is not competent, the evaluator then is required to render an opinion on whether the defendant will regain competency in the foreseeable future. If the judge finds by a preponderance of the evidence that the person is not competent, the proceedings must be either suspended in the case where the person will likely regain competency in the foreseeable future or dismissed in the case where the person is not likely to regain competency in the foreseeable future.

      In either situation, the judge can refer the defendant into guardianship proceedings, civil commitment proceedings, or other appropriate treatment at a human service center or other treatment facility. Some courts have treated the law allowing the judge to refer someone into these proceedings as the same as being able to order the defendant committed under these procedures. This is one of those common mistakes made in these cases. If that happens, the North Dakota Supreme Court requires the judge to make sure the defendant is given all of the rights guaranteed in our civil commitment statutes.

      Criminal responsibility defenses are related to but different than competency. This is our equivalent to the insanity defense, although it is slightly broader than the traditional definition of insanity. It is also an affirmative defense, which means the defendant needs to raise the defense and prove it up by a preponderance of the evidence.

      Also, unlike a competency defense, criminal responsibility defenses can be waived if the defendant is competent at the time of trial and the defendant makes a knowing, voluntary, and intelligent waiver of the defense. In order to claim a lack of criminal responsibility, the defense must provide the court and the prosecution with pretrial notice that the defense will be used at trial. Before filing the notice, the defense typically has an expert opinion from a psychologist in hand saying the defendant was not criminally responsible at the time of the crime. The defense is a bit different than competency in that with a competency defense, there is never a determination of guilt or innocence.

      A famous example of this involved a man in the s who decapitated another after mistaking his head for a pumpkin. Clearly if that were true, the murderer could not understand that his conduct was wrong, and his reality was seriously distorted from reality. When a person is found not guilty by lack of criminal responsibility, that verdict triggers a secondary evaluation and commitment process. The judge orders another evaluation of the defendant to determine whether the person can be treated effectively and if the person is dangerous to society.

      The Court holds a mental health dispositional hearing, essentially a commitment hearing, within 90 days of the verdict. At this hearing, the defendant has the burden to show he is not dangerous and should not be committed to treatment. If the defendant cannot prove he is not dangerous, the Court can commit the person to a treatment facility and require the person to accept generally accepted treatment for his mental illness.

      This commitment can last for the maximum time the person could have spent in jail. In other words, for a class C felony offense with a 5-year maximum penalty, a person can be committed to treatment for a maximum term of up to 5 years. Of course, the defendant has the right to review the commitment terms once at least every year. As I mentioned above, there are situations where I will waive this defense because the civil commitment following a criminal responsibility defense results in longer incarceration than if we had not raised the defense.

      At these annual reviews, judges ask psychologists if the person remains dangerous. Psychologists avoid directly answering the question because it is impossible to predict the future. Judges then often rule that they are not psychologists and cannot predict the future. The end result of this circular process is that the defendant often remains locked up in a facility like the North Dakota State Hospital for much longer than if they had pled guilty or went to trial without raising the criminal responsibility defense.

      The last type of mental health defense that can be raised is a diminished capacity or culpability defense.

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