Module 4

This chapter reviews criminal defenses based on excuse, including the insanity defense.
Remember that defenses based on excuse focus on the defendant and claim that the defendant
should be excused from criminal responsibility for his or her conduct under the circumstances.
Learning Outcomes
 Identify four states that do not recognize an insanity defense.
 Identify four versions of the insanity defense.
 Ascertain the two elements required for the M’Naghten insanity defense.
 Ascertain the two elements required for the irresistible impulse insanity defense.
 Compare the M’Naghten, irresistible impulse, and substantial capacity tests.
 Ascertain the basis of the Durham insanity defense.
 Identify the various burdens of proof for the insanity defense.
 Distinguish between diminished capacity and the insanity defense.
 Compare the insanity defense with mental competence to stand trial.
 Compare the insanity defense with the guilty but mentally ill verdict.
 Compare different commitment procedures for an insane criminal defendant.
 Distinguish temporary from permanent insanity.

Time Allotment
Three lectures hours
Content

Unit 1. –Insanity Defense and M’Nagthen Rule Defense

What is Insanity Defense?

The insanity defense is the subject of much debate because it excuses even the most evil and
abhorrent conduct, and in many jurisdictions, legal insanity functions as a perfect defense resulting
in acquittal. However, the insanity defense is rarely used and hardly ever successful. This is generally
because of the difficulty in proving legal insanity.

Many criminal defendants suffer from mental illness and can produce evidence of this illness
such as psychiatric or layperson testimony. Often, mental disturbance is apparent from the
defendant’s conduct under the circumstances. However, legal insanity differs from medical insanity
and is generally much more difficult to establish. Criminal prosecution should deter as well as
incapacitate. While the purpose of a medical diagnosis is to eventually cure the defendant’s disorder,
the purpose of criminal law is to punish the defendant.

The policy supporting the insanity defense is twofold.

 First, an insane defendant does not have control over his or her conduct. This is
similar to a defendant who is hypnotized, or sleepwalking.
 Second, an insane defendant does not have the ability to form criminal intent. Without
the ability to control conduct, or the understanding that conduct is evil or wrong by
society’s standards, an insane defendant presumably will commit crimes again and
again. Thus no deterrent effect is served by punishment, and treatment for the mental
defect is the appropriate remedy.
Four variations of the insanity defense currently exist:

 M’Naghten
 Irresistible Impulse
 Substantial Capacity
 Durham

1. M’Naghten Insanity Defense

The M’Naghten insanity defense, also called the right-wrong test, is the most common insanity
defense in the United States. It is also the oldest and was created in England in 1843. The defense is
named after Daniel M’Naghten. M’Naghten was under the paranoid delusion that the Prime Minister of
England, Sir Robert Peel, was trying to kill him. When he tried to shoot Sir Peel from behind, he
inadvertently shot Sir Peel’s Secretary, Edward Drummond, who thereafter died. M’Naghten was put
on trial for murder and, to the shock of the nation, the jury found him not guilty by reason of insanity
(Queen v. M’Naghten, 2010). After a public outcry at this verdict, the British House of Lords developed
a test for insanity that remains relatively intact today.

The M’Naghten insanity defense is cognitive  and focuses on the defendant’s awareness,
rather than the ability to  control  conduct.

The defense requires two elements.

 First, the defendant must be suffering from a mental defect at the time he or she
commits the criminal act. The mental defect can be called a “defect of reason” or a
“disease of the mind,” depending on the jurisdiction (Iowa Code, 2010).
 Second, the trier of fact must find that because of the mental defect, the defendant did
not know either the nature and quality of the criminal act or that the act was wrong.

The terms “defect of reason” and “disease of the mind” can be defined in different ways, but in
general, the defendant must be cognitively impaired to the level of not knowing the nature and quality
of the criminal act, or that the act is wrong. Some common examples of mental defects and diseases
are psychosis, schizophrenia, and paranoia.

Jurisdictions vary as to the level of awareness the defendant must possess. Some
jurisdictions use the term “know,” or “understand,” (Cal. Penal Code, 2010) while others use the term
“appreciate” (Ala. Code, 2010). If know or understand is the standard, the trier of fact must ascertain a
basic level of awareness under the attendant circumstances. If appreciate is the standard, the trier of
fact must analyze the defendant’s emotional state, and evidence of the defendant’s character or
personality may be relevant and admissible.
A defendant does not know the nature and quality of a criminal act if the defendant is
completely oblivious to what he or she is doing. This is quite rare, so most defendants claiming
insanity choose to assert that they did not know their act was wrong. However, jurisdictions differ as to

the meaning of “wrong.” Some jurisdictions define wrong as “legally wrong,”meaning the defendant
must be unaware that the act is against the law (State v. Crenshaw, 2010). Others define wrong as
“legally and morally wrong,”meaning the defendant must also be unaware that the act is condemned
by society (State v. Skaggs, 2010). Generally, the only instance where the defendant must be “ morally
wrong,” standing alone, is when the defendant claims that the conduct was performed at the command
of God, which is called the deific defense (State v. Worlock, 2010). Whether the standard is legally
wrong or morally wrong, if there is any evidence of a cover-up or an attempt to hide or escape, it is
apparent that the defendant knew the difference between right and wrong, defeating the claim of
insanity under M’Naghten.

Figure 6.1 M’Naghten Insanity Defense

UNIT 3. THE IRRESISTIBLE IMPULSE INSANITY DEFENSE AND SUBSTANTIAL CAPACITY TEST

2. IRRESISTIBLE IMPULSE INSANITY DEFENSE

Another variation of the insanity defense is the irresistible impulse defense. In some cases,
the irresistible impulse insanity defense is easier to prove than the M’Naghten insanity defense,
resulting in the acquittal of more mentally disturbed defendants.

The irresistible impulse insanity defense generally supplements M’Naghten, so the focus is on
the defendant’s awareness (cognitive) and the defendant’s will (ability to control conduct).

In jurisdictions that recognize the irresistible impulse insanity defense,

 First element is the same as M’Naghten; the defendant must suffer from a mental
defect or disease of the mind.
 Second element adds the concept of volition, or free choice. If the defendant cannot
control his or her conduct because of the mental defect or disease, the defendant’s
conduct is excused even if the defendant understands that the conduct is wrong
(State v. White, 2010).
This is a softer stance than M’Naghten, which does not exonerate a defendant who is aware
conduct is wrong. The challenge for the trier of fact in an irresistible impulse jurisdiction is
distinguishing between conduct that can be controlled and conduct that cannot.

Figure 6.2 Irresistible Impulse Insanity Defense

3. The Substantial Capacity Test

The substantial capacity test is the insanity defense created by the Model Penal Code. The
Model Penal Code was completed in 1962. By 1980, approximately half of the states and the federal
government adopted the substantial capacity test also called the Model Penal Code or ALI defense.
However, in 1982, John Hinckley successfully claimed insanity using the substantial capacity test in
his federal trial for the attempted murder of then-President Ronald Reagan. Public indignation at this
not-guilty verdict caused many states and the federal government to switch from the substantial
capacity test to the more inflexible M’Naghten standard. In addition, jurisdictions that switched to
M’Naghten also shifted the burden of proving insanity to the defendant . The defendant’s burden of
proof for the insanity defense is discussed shortly.

The substantial capacity test is as follows: “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 [wrongfulness] of his conduct or to conform his conduct to the
requirements of law”.

The defense has two elements.

 First element requires the defendant to have a mental disease or defect, like the
M’Naghten and irresistible impulse insanity defenses.
 Second element combines the cognitive standard with volitional, like the irresistible
impulse insanity defense supplementing the M’Naghten insanity defense.

In general, it is easier to establish insanity under the substantial capacity test because both
the cognitive and volitional requirements are scaled down to more flexible standards . Unlike the
M’Naghten insanity defense, the substantial capacity test relaxes the requirement for complete
inability to understand or know the difference between right and wrong. Instead, the defendant must
lack substantial, not total, capacity. The “wrong” in the substantial capacity test is “criminality,” which is
a legal rather than moral wrong. In addition, unlike the irresistible impulse insanity defense, the
defendant must lack substantial, not total, ability to conform conduct to the requirements of the law.
Another difference in the substantial capacity test is the use of the word “appreciate” rather than
“know.” As stated previously, appreciate incorporates an emotional quality, which means that evidence
of the defendant’s character or personality is relevant and most likely admissible to support the
defense.

Figure 6.3 Substantial Capacity Insanity Defense

UNIT 3. THE DURHAM INSANITY DEFENSE AND PROVING OF INSANITY

The Durham insanity defense is used only in New Hampshire and has been the established
insanity defense in New Hampshire since the late 1800s. The Durham defense, also called
the Durham rule or the product test, was adopted by the Circuit Court of Appeals for the District of
Columbia in the case of Durham v. U.S., 214 F.2d 862 (1954). The defense set forth in that case is as
follows: “[A]n accused is not criminally responsible if his unlawful act was the product of mental
disease or mental defect”. However, the court failed to give definitions for product, mental disease, or
mental defect. Thus the Durham insanity defense is extremely difficult to apply, and the D.C. Circuit
rejected it in 1972 in the case of U.S. v. Brawner, 471 F.2d 969 (1972), which was later superseded by
federal statute (18 U.S.C., 2010).

In general, the Durham insanity defense relies on ordinary principles of proximate causation.

The defense has two elements.

 First, the defendant must have a mental disease or defect. Although these terms are not
specifically defined in the Durham case, the language of the judicial opinion indicates an
attempt to rely more on objective, psychological standards, rather than focusing on the
defendant’s subjective cognition.
 Second element has to do with causation. If the criminal conduct is “caused” by the mental
disease or defect, then the conduct should be excused under the circumstances.
Figure 6.4 Durham Insanity Defense
HOW TO PROVE INSANITY AS ADEFENSE ?

A. PROVING INSANITY

There is generally a presumption that criminal defendants are sane, just as there is a

Many states have converted the insanity defense into an affirmative defense.The defendant may also
have the burden of persuading the trier of fact that he or she is insane to a preponderance of
evidence. The federal government and some other states require the defendant to prove insanity
by clear and convincing evidence, which is a higher standard than preponderance of evidence.

B. DIMINISHED CAPACITY

A claim of diminished capacity differs from the insanity defense. Diminished capacity is an imperfect
failure of proof defense recognized in a minority of jurisdictions. Diminished capacity could reduce a
first-degree murder charge to second-degree murder or manslaughter if the defendant lacks the
mental capacity to form the appropriate criminal intent for first-degree murder.

In California, diminished capacity was abolished as an affirmative defense after San Francisco
Supervisor Dan White used it successfully in his trial for the murder of fellow Supervisor Harvey Milk.
A jury convicted White of voluntary manslaughter rather than first-degree premeditated murder after
reviewing evidence that proved his diet of junk food (Twinkies) created a chemical imbalance in his
brain. In the aftermath of this highly publicized trial, California passed legislation eliminating the
diminished capacity defense and limiting the admissibility of evidence of diminished capacity only to
sentencing proceedings (Cal. Penal Code, 2010).

Similar to diminished capacity is the syndrome defense. A syndrome that negates the requisite intent
for the crime could function as a failure of proof defense in a minority of jurisdictions. Some common
examples of syndromes the American Psychiatric Association recognizes in the Diagnostic and
Statistical Manual of Mental Disorders , fourth edition (DSM-IV), are antisocial personality disorder,
posttraumatic stress disorder, and intermittent explosive disorder.. Although successful use of the
syndrome defense is rare, at least one case has excused a defendant’s drunken driving and assault
and battery against a police officer because of premenstrual syndrome (PMS) (Baltimore.com, 2011).

C. MENTAL COMPETENCE TO STAND TRIAL

The insanity defense is different from mental competence to stand trial. The insanity defense
pertains to the defendant’s mental state when he or she commits the crime. If the insanity defense is
successful, it exonerates the defendant from guilt. Mental competence to stand trial is analyzed at the
time the trial is to take place. If the defendant is mentally incompetent to stand trial, the trial is delayed
until the defendant regains competency. Although a detailed discussion of mental competence to
stand trial is beyond the scope of this book, in general, a criminal defendant must be able to
understand the charges against him or her, and be able to assist in his or her defense. As the Model
Penal Code provides, “No person who as a result of mental disease or defect lacks capacity to
understand the proceedings against him or to assist in his own defense shall be tried, convicted or
sentenced for the commission of an offense so long as such incapacity endures” (Model Penal Code
§ 4.04). A defendant who is mentally incompetent at the time of trial is subject to mental health
treatment or even involuntary medication until competence is regained.
D. GUILTY BUT MENTALLY ILL

Some states adopted the guilty but mentally ill verdict. A defendant who is found guilty but mentally
ill is not acquitted but punished and treated for mental health simultaneously while in prison. Typically,
the guilty but mentally ill verdict is available only when the defendant fails to prove legal insanity, and
requires the defendant to prove mental illness at the time of the crime to a preponderance of evidence

Figure 6.5 Effects (Circular Diagram) of Mental Competency Claims

Figure 6.6 Diagram of the Insanity Defense

The not guilty by reason of insanity verdict means that the defendant is absolved from criminal
responsibility and devoid of any criminal record for the offense. However, it does  not mean that the
defendant is free to return to society.

In several states and federally, a defendant who is found not guilty by reason of insanity
is  automatically committed  to a treatment facility until there is a determination that mental health has
been restored. This is also the Model Penal Code approach. As the Model Penal Code states in,
“When a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the
Court shall order him to be committed to the custody of the Commissioner of Mental Hygiene [Public
Health] to be placed in an appropriate institution for custody, care and treatment.”

Other states have a hearing on sanity after the judgment or verdict of not guilty by reason of
insanity is returned. If the defendant is deemed mentally competent at the hearing, he or she
is released. If the defendant is found mentally ill at the hearing, he or she is committed to the
appropriate treatment facility.

F. TEMPORARY INSANITY

Many states also recognize temporary insanity, which does not differ in analysis from permanent
insanity except for the duration of the mental illness. In a state that recognizes temporary insanity, the
elements of the state’s insanity defense, either M’Naghten, irresistible impulse, substantial capacity,
or Durham, must be present at the time the crime was committed. If the defendant is found not guilty
by reason of insanity for the criminal offense, but regains mental competence at the time of
prosecution, the defendant is released after the verdict is rendered. The trial court will order release
based on the commitment procedure discussed in Section 6.1.9 “Disposition of the Legally Insane”.

SUMMARY:

 The four states that do not recognize the insanity defense are Montana, Utah, Kansas, and
Idaho.
 The four versions of the insanity defense are M’Naghten, irresistible impulse, substantial
capacity, and Durham.
The two elements of the M’Naghten insanity defense are the following:
o The defendant must be suffering from a mental defect or disease at the time of the
crime.
o The defendant did not know the nature or quality of the criminal act he or she
committed or that the act was wrong because of the mental defect or disease.
The two elements of the irresistible impulse insanity defense are the following:
o The defendant must be suffering from a mental defect or disease at the time of the
crime.
o The defendant could not control his or her criminal conduct because of the mental
defect or disease.
 The substantial capacity test softens the second element of the M’Naghten and irresistible
impulse insanity defenses. Under the substantial capacity test, the defendant must lack
substantial, not total, capacity to appreciate the criminality of conduct or to control or conform
conduct to the law.
 The Durham insanity defense excuses criminal conduct when it is caused by a mental disease
or defect.
 The criminal defendant pleading not guilty by reason of insanity must produce evidence to
rebut the presumption that criminal defendants are sane. Thereafter, either the prosecution has
the burden of disproving insanity to a certain evidentiary standard or the defendant has the
burden of proving insanity to a preponderance of evidence or clear and convincing evidence.
 The diminished capacity defense is a failure of proof imperfect defense that may reduce a
first-degree murder to second-degree murder or manslaughter if the defendant did not have the
mental capacity to form first-degree murder criminal intent. The insanity defense is generally a
perfect affirmative defense in many jurisdictions.
 The insanity defense exonerates the defendant from criminal responsibility. Mental
incompetence to stand trial delays the criminal trial until mental competency is regained.
 The guilty but mentally ill verdict finds the criminal defendant guilty but orders him or her to
undergo mental health treatment while incarcerated. The insanity defense is generally a perfect
affirmative defense in many jurisdictions.
 The federal government and some states automatically commit a criminal defendant to a
mental health facility after an acquittal based on insanity. Other states have a post verdict
hearing to rule on commitment.
 A claim of temporary insanity is the same as a claim of insanity except for the duration of the
mental illness.

IN THE CONTEXT OF PHILIPPINE EDICT

The following provisions of the revised penal code book 1 art 12 exempts a person from crime
commission in consideration of intelligence:

Art. 12. Circumstances which exempt from criminal liability . — the following are exempt from criminal
liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.chanrobles
virtual law library

When the imbecile or an insane person has committed an act which the law defines as a felony
(delito), the court shall order his confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of
the same court.chanrobles virtual law library

2. A person under nine years of age.chanrobles virtual law library

3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which
case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of this
Code.chanrobles virtual law library

When such minor is adjudged to be criminally irresponsible, the court, in conformably with the
provisions of this and the preceding paragraph, shall commit him to the care and custody of his family
who shall be charged with his surveillance and education otherwise, he shall be committed to the care
of some institution or person mentioned in said Art. 80.chanrobles virtual law library

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.chanrobles virtual law library

5. Any person who act under the compulsion of irresistible force.chanrobles virtual law library
6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater
injury.chanrobles virtual law library

7. Any person who fails to perform an act required by law, when prevented by some lawful insuperable
cause.chanrobles virtual law library

Learning Activity

Direction: Make a video presentation about any unit of this module, then upload your presentation in
your own youtube account and send the link of your presentation in our google classrom intended for
this subject OR submit your video preentation in our google classrom intended for this subject.

Criteria Percentage
Creativity 40
Content 40
Originality 20
Total 100