Psycholegal & Clinical Assessment Services

PROVIDING EXPERT FORENSIC PSYCHOLOGY EVALUATIONS IN ILLINOIS, GEORGIA, AND KANSAS

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Criminal Responsibility or Sanity at the Time of the Offense

Psycholegal & Clinical Assessment Services offers forensic psychology evaluation services in the area of Criminal Responsibility or Sanity at the Time of the Offense (Insanity Defense) and other Forensic Psychological Evaluations in Illinois, Georgia, and Kansas. Referrals from other states will be reviewed on a case by case basis.

Insanity Defense

Insanity is a legal concept, not a clinical concept. The much publicized legal insanity defense, also called Not Guilty by Reason of Insanity (NGRI) publicized is much more often attempted than it is successful. A number of studies involving several states have shown that the insanity defense is raised in less than 1% of all criminal cases. Acquittal rates vary from state to state, but on average the insanity defense is only successful in approximately 25% of those attempts. Over 90% of NGRI findings are stipulated by both sides without a trial. Insanity acquittees spend on average more time in a secure mental hospital than they would have spent incarcerated if they had been convicted.

Criminal Responsibility Psychological Evaluations

When a defendant’s mental state at the time they committed an offense is at question, a criminal responsibility or sanity evaluation may be requested by the court, defense, or prosecution. Although the criteria for an insanity plea depends on the legal jurisdiction in which the crime was committed (see insanity tests below), the basis of an insanity plea rests on the basic premise that the defendant was not criminally responsible for their actions at the time of the offense due to the influence of a mental illness. Utilizing relevant legal statutes and case law, Psycholegal & Clinical Assessment Services utilizes psychological testing and evaluation to address the criteria necessary for an insanity plea.

When asked for an opinion about Criminal Responsibility, Sanity at the Time of the Offense, or the Insanity Defense, Dr. Steven Gaskell first determines by examination and review of records whether a defendant’s mental or emotional state at the time of the alleged offense meets the threshold requirement for a major mental disease or defect. As a forensic psychologist, Dr. Gaskell then renders an opinion as to whether that condition substantially impaired the defendant’s ability to appreciate the wrongfulness of the criminal act for which he or she is accused, or whether the defendant’s mental condition substantially impaired his or her capacity to conform their conduct to the requirements of the law, or both. In reports and expert testimony, Dr. Gaskell presents detailed evidence that the defendant’s clinical mental state either does or does not satisfy the legal definition of insanity. Dr. Gaskell also uses psychological testing to evaluate the defendant for the possibility of feigning or malingering. Psychological examination reports address the psychological data in terms of the legal criteria regarding Criminal Responsibility or Sanity at the Time of the Offense in the jurisdiction of the evaluation. Dr. Gaskell has completed more than 500 Criminal Responsibility evaluations and he has provided expert testimony regarding sanity at the time of the offense.

Tests for Insanity

M’Naghten Rule

The M’Naghten rule or standard provides that for an individual to be found Not Guilty By Reason of Insanity (NGRI), he or she must be “laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he knew it, that he did not know he was doing what was wrong.” The concept of disease of the mind excludes voluntary intoxication either by alcohol or drugs and strong emotional states.

Irresistible Impulse Test

The Irresistible Impulse Test was first adopted by the Alabama Supreme Court in the 1887 case of Parsons v. State. The Alabama court stated that even though the defendant could tell right from wrong, he was subject to “the duress of such mental disease [that] he had … lost the power to choose between right and wrong” and that “his free agency was at the time destroyed,” and thus, “the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.” In their finding, the court assigned responsibility for the crime to the mental illness despite the defendant’s ability to distinguish right from wrong. The Irresistible Impulse Test gained acceptance in various states as an addition to the M’Naghten Rule, under which right versus wrong was still considered a critical part of any definition of insanity. In some cases, the Irresistible Impulse Test was considered to be a variation on M’Naghten; in others, it was considered to be a separate test. Although the Irresistible Impulse Test was considered to be an important correction on the M’Naghten’s cognitive bias, it still came under criticism of its own. For example, it was criticized for making the definition of insanity too broad, failing to take into account the impossibility of determining which acts were uncontrollable rather than merely uncontrolled, and also making it easier to malinger or fake insanity. The Irresistible Impulse Test was also criticized for being too narrow; like M’Naghten, the test seemed to exclude all but those totally unable to control their actions. Nevertheless, several states currently use this test along with the M’Naghten Rule to determine insanity, and the American Law Institute in its Model Penal Code definition of insanity adopted a modified version of it.

ALI Model Penal Code

The American Law Institute (ALI) designed a new test for its Model Penal Code in 1962, in response to criticisms of the various tests for the insanity defense (including the Irresistible Impulse Test). Under the ALI Model Penal Code test (ALI Test), “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”

The ALI Model Penal Code test is much broader than the M’Naghten Rule and the Irresistible Impulse Test. It asks whether defendants have a substantial incapacity to appreciate the criminality of their conduct or to conform their conduct to the law rather than the absolute knowledge required by M’Naghten and the absolute inability to control conduct required by the Irresistible Impulse Test.

The ALI Model Penal Code test also requires that the mental disease or defect be a mental diagnosis. In this way, it manages to incorporate elements of all three of its predecessors: the knowledge of right and wrong required by M’Naghten; the prerequisite of lack of control in the Irresistible Impulse Test; and the diagnosis of mental disease and defect required by Durham.

Such a broad based rule received wide acceptance, and by 1982 all federal courts and a majority of state courts had adopted the ALI test. While some states have since dropped the ALI test, and it no longer applies at the federal level, 18 states still use the ALI test in their definitions of insanity.

Durham Standard

In Durham v. United States, the court ruled that a defendant is entitled to acquittal if the crime was the product of his mental illness (i.e., crime would not have been committed but for the disease). The Durham test, also called the Product Test, is broader than either the M’Naghten test or the Irresistible Impulse test. The Durham test has much more lenient guideline for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M’Naghten Rule. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.

Insanity Defense Reform Act of 1984

The Insanity Defense Reform Act of 1984, signed into law on October 12, 1984, was the first comprehensive Federal legislation governing the insanity defense and the disposition of individuals suffering from a mental disease or defect who are involved in the criminal justice system. The more significant provisions:

significantly modified the standard for insanity previously applied in the Federal courts;
placed the burden of proof on the defendant to establish the defense by clear and convincing evidence;
limited the scope of expert testimony on ultimate legal issues;
eliminated the defense of diminished capacity;
created a special verdict of “not guilty only by reason of insanity,” which triggers a commitment proceeding;
provided for Federal commitment of persons who become insane after having been found guilty or while serving a Federal prison sentence.

Federal Standard Regarding the Insanity Defense

Federal Insanity Standard – United States Code – Title 18 – Part 1 – Chapter 1 – § 17

It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

State Standards Regarding the Insanity Defense

Illinois Compiled Statutes 720 ILCS 5 Criminal Code of 1961. Section 6-2

A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.

A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.

For purposes of this Section, “mental illness” or “mentally ill” means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior.

Georgia Rule 31.5 Degree of Criminal Responsibility or Insanity at the Time of the Act.

Whether or not the accused had the mental capacity to distinguish right from wrong in relation to the alleged act; whether or not the presence of a delusional compulsion overmastered the accused’s will to resist committing the alleged act.

Tennessee Title 39 Mental Status at Time of Alleged Offense

Insanity Defense Definition from Tennessee Code Annotated T.C.A. § 39-11-501. “Insanity

(a) It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of such defendant’s acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
(b) As used in this section, “mental disease or defect” does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

“Wrongfulness” is commonly understood to encompass both moral and legal wrongfulness (Kelley v. State, 2005 Tenn. Crim. App.). A jury is justified in finding that a defendant appreciated the wrongfulness of his actions if there was evidence to show that the defendant appreciated either that the act was legally wrong or morally wrong.

Colorado SECTION 2. Article 8 of title 16, Colorado Revised Statutes, 1986

16-8-101.5. Insanity defined – offenses committed on and after July 1, 1995. (1) The applicable test of insanity shall be:

(a) A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions, for, when the act is induced by any of these causes, the person is accountable to the law; or

(b) A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.

(2) As used in subsection (1) of this section:

(a) ”Diseased or defective in mind” does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(b) ”Mental disease or defect” includes only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable to the voluntary ingestion of alcohol or any other psychoactive substance but does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(3) This section shall apply to offenses committed on or after July 1, 1995.

Iowa 2005 - Code 701.4 – Insanity
Indicates that “A person shall not be convicted of a crime if at the time the crime is committed the person suffers from such a diseased or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguishing between right and wrong in relation to that act. Insanity need not exist for any specific length of time before or after the commission of the alleged criminal act. If the defense of insanity is raised, the defendant must prove by a preponderance of the evidence that the defendant at the time of the crime suffered from such a deranged condition of the mind as to render the defendant incapable of knowing the nature and quality of the act the defendant was committing or was incapable of distinguishing between right and wrong in relation to the act.”

Missouri Code § 552.030 – Not Guilty By Reason of Mental Disease or Defect (NGRI)

A person is not responsible for criminal conduct if, at the time of such conduct, as a result of a mental disease or defect, such person was incapable of knowing and appreciating the nature, quality or wrongfulness of such conduct.

Wisconsin Chapter 971.15 – Mental Responsibility of Defendant

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.

Status of the Insanity Defense Among States – Quick Guide

The following list gives the status of the insanity defense in all 50 states. It further describes the test used, where the burden of proof lies, and whether or not the state uses the Guilty But Mentally Ill verdict.

ALABAMA: M’Naghten Rule, burden of proof on defendant.
ALASKA: M’Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.
ARIZONA: M’Naghten Rule, burden of proof on defendant.
ARKANSAS: ALI Model Penal Code standard, burden of proof on defendant.
CALIFORNIA: M’Naghten Rule, burden of proof on defendant.
COLORADO: M’Naghten Rule with irresistible impulse test, burden of proof on state.
CONNECTICUT: ALI Model Penal Code standard, burden of proof on defendant.
DELAWARE: M’Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.
DISTRICT OF COLUMBIA: ALI Model Penal Code standard, burden of proof on defendant.
FLORIDA: M’Naghten Rule, burden of proof on state.
GEORGIA: M’Naghten Rule with irresistible impulse test, burden of proof on defendant, guilty but mentally ill verdicts allowed.
HAWAII: ALI Model Penal Code standard, burden of proof on defendant.
IDAHO: Abolished insanity defense.
ILLINOIS: ALI Model Penal Code standard, burden of proof on defendant, guilty but mentally ill verdicts allowed.
INDIANA: M’Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.
IOWA: M’Naghten Rule, burden of proof on defendant.
KANSAS: Abolished insanity defense.
KENTUCKY: ALI Model Penal Code standard, burden of proof on defendant, guilty but mentally ill verdicts allowed.
LOUISIANA: M’Naghten Rule, burden of proof on defendant.
MAINE: ALI Model Penal Code standard, burden of proof on defendant.
MARYLAND: ALI Model Penal Code standard, burden of proof on defendant.
MASSACHUSETTS: ALI Model Penal Code standard, burden of proof on state.
MICHIGAN: ALI Model Penal Code standard, burden of proof on state, guilty but mentally ill verdicts allowed.
MINNESOTA: M’Naghten Rule, burden of proof on defendant.
MISSISSIPPI: M’Naghten Rule, burden of proof on state.
MISSOURI: M’Naghten Rule, burden of proof on defendant.
MONTANA: Abolished insanity defense, guilty but mentally ill verdicts allowed.
NEBRASKA: M’Naghten Rule, burden of proof on defendant.
NEVADA: M’Naghten Rule, burden of proof on defendant.
NEW HAMPSHIRE: Durham standard, burden of proof on defendant.
NEW JERSEY: M’Naghten Rule, burden of proof on state.
NEW MEXICO: M’Naghten Rule with irresistible impulse test, burden of proof on state, guilty but mentally ill verdicts allowed.
NEW YORK: M’Naghten Rule (modified), burden of proof on defendant.
NORTH CAROLINA: M’Naghten Rule, burden of proof on defendant.
NORTH DAKOTA: ALI Model Penal Code standard (modified), burden of proof on state.
OHIO: ALI Model Penal Code standard, burden of proof on defendant.
OKLAHOMA: M’Naghten Rule, burden of proof on state.
OREGON: ALI Model Penal Code standard, burden of proof on defendant.
PENNSYLVANIA: M’Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.
RHODE ISLAND: ALI Model Penal Code standard, burden of proof on defendant.
SOUTH CAROLINA: M’Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.
SOUTH DAKOTA: M’Naghten Rule, burden of proof on defendant, guilty but mentally ill verdicts allowed.
TENNESSEE: ALI Model Penal Code standard, burden of proof on state.
TEXAS: M’Naghten Rule with irresistible impulse test, burden of proof on defendant.
UTAH: Abolished insanity defense, guilty but mentally ill verdicts allowed.
VERMONT: ALI Model Penal Code standard, burden of proof on defendant.
VIRGINIA: M’Naghten Rule with irresistible impulse test, burden of proof on defendant.
WASHINGTON: M’Naghten Rule, burden of proof on defendant.
WEST VIRGINIA: ALI Model Penal Code standard, burden of proof on state.
WISCONSIN: ALI Model Penal Code standard, burden of proof on defendant.
WYOMING: ALI Model Penal Code standard, burden of proof on defendant.

Insanity Defense Landmark Cases

Durham v. U.S. (D.C. Circuit Court of Appeals, 1954)

During this case, the Appellate Court formulated a new test for criminal responsibility (insanity): An accused is not criminally responsible of his unlawful act was the product of a mental disease or defect. This was later termed the Product Rule or Durham Rule.

McDonald v. U.S. (D.C. Circuit Court of Appeals, 1962)

The court chose to define mental disease or defect which was previously left undefined in the Durham decision. The court held that “Mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.”

Frendak v. U.S. (D.C. Circuit Court of Appeals, 1979)

The court found that the insanity defense may not be forced on a defendant found competent to stand trial if the defendant intelligently and voluntarily, forgoes that defense.

Ake v. Oklahoma (U.S. Supreme Court, 1985)

The court found that the State must provide an indigent defendant with psychiatric assistance in preparing an insanity defense if the defendant’s sanity at the time of the crime is in question. The court also ruled that certain death penalty defendants have a separate right to psychiatric help. When the State seeks the death penalty on the ground that the defendant presents a danger to society, an indigent defendant is constitutionally entitled to psychiatric assistance in rebutting that assertion.

Washington v. U.S. (U.S. Court of Appeals, D.C. Circuit, 1967)

The court found that psychiatric/psychological experts may not speak directly in terms of product, result or cause. They should only explain how the defendant’s mental illness may have influenced his conduct. Experts were prohibited from addressing the ultimate issue in insanity cases. It should be noted that most states do not prohibit ultimate issue testimony in insanity cases.

Foucha v. Louisiana (U.S. Supreme Court, 1992)

The court held that an insanity acquittee may not be held unless he is both mentally ill and dangerous.

Rouse v. Cameron (U.S. Circuit Court of Appeals, D.C. Circuit 1966)

The court found that a patient committed as not guilty by reason of insanity (NGRI) must either get treatment or be released, unless such release would present a real social menace.

Jones v. U.S. (U.S. Supreme Court, 1983)

The court held that the Constitution permits the government to confine an NGRI acquittee to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or others.

U.S. v. Torniero (Second Circuit Court of Appeals, 1984)

The court upheld the exclusion of expert testimony regarding pathological gambling as not being relevant to the ability to refrain from the criminal act of theft, but it left open the possibility that it could be a defense for a gambling crime.

State v. Rodriquez (Hawaii Supreme Court, 1984)

The court ruled on whether Dissociative Identity Disorder (also referred to as Multiple Personality Disorder) could be used as a basis for an NGRI defense. The ruling stated, “It is immaterial whether the defendant was in one state of consciousness or another, so long as in the personality then controlling the behavior, the defendant was conscious and his actions were the product of his own volition.”

Kirkland v. State (Georgia Appellate Court, 1983)

The court also ruled on whether Dissociative Identity Disorder (also referred to as Multiple Personality Disorder) could be used as a basis for an NGRI defense. The court held that “The core personality is held strictly accountable for the acts committed by a secondary personality, as long as that personality possessed the requisite sanity.”

Washington v. U.S. (U.S. Circuit Court of Appeals, D.C. Circuit, 1967)

The court found that and expert cannot testify to the Ultimate Question. It should be noted that this was a minority opinion, and most courts want full testimony, as long as it is logical and explained.

Office Locations

Illinois

Main Office – Naperville, Illinois

Psycholegal & Clinical Assessment Services
2135 City Gate Lane, Suite 300
Naperville, Illinois 60563

Office Phone: 630-780-1085
Cell Phone : 630-903-9193
Email : drgaskell@gmail.com

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