精神病辩护制度研究——基于美国精神病辩护制度的思考

由于刑事责任的承担要求行为人对自己行为的社会危害性有认识和控制能力,某些精神病人对自己行为的社会危害性没有认识或无法控制,因而无法对自己的行为承担刑事责任,精神病也就成了刑事辩护的重要事由。在美国刑事审判中,精神病是无罪辩护的重要理由,判例法与刑事立法共同形成了一套较为完善的精神病辩护制度。在美国,精神病辩护制度的存废问题一直备受争议;精神病法律标准处于变化之中,各法域标准不一;精神病辩护的提出、审理程序、证明责任分配与证明标准、裁定及专家证人的作用有其特点;因精神病而判无罪者的关押与释放形成了特定规则。我们可以借鉴其制度的某些合理因素,健全和完善我国的精神病辩护制度。     

Implicit theories of criminal responsibility

Three questions relevant to insanity decisions were examined: (a) What informational cues are weighed most heavily in the attribution of criminal responsibility? (b) How do verdict forms influence these attributions? And (c) How do individuals' beliefs about insanity and responsibility influence decision making? Undergraduate subjects (n=181) responded to vignettes portraying an act by a mentally disordered defendant. Psychiatric jargon was avoided, so that attributions were not a function of diagnostic terminology. It was found that, under the traditional scheme of not guilty by reason of insanity (NGRI) vs. guilty, level of mental disorder (schizophrenia vs. personality disorder) was the primary determinant of insanity decisions. Also, insanity judgments were more likely to be made for acts performed without planful intentionality. Under the alternative scheme of NGRI vs. guilty but mentally ill (GBMI) vs. guilty, mental disorder still controlled NGRI verdicts; a bizarre act increased the likelihood of a GBMI over a guilty verdict; and the GBMI verdict option reduced markedly the proportion of psychotic defendants found NGRI and the proportion of personality disordered defendants found guilty. There were no significant differences between diagnostic groups in the likelihood of being found GBMI. Most subjects preferred to utilize the GBMI option as a compromise verdict even in the face of very severe mental illness. Attitudinal data revealed considerable variation in agreement with the classic moral logic of the insanity defense and accounted for a significant amount of the variance in insanity decisions. The implications for both social policy and future research are discussed.     

Deconstructing the Criminal Defence of Insanity

The significance of this article is in its deconstruction of the criminal insanity defence in a meta-legal critical context. The article’s objective is to critically review beliefs that the insanity defence was designed solely for public protection from insane violent people, or, for criminal deterrence. Arising from the long and continued use of the Roman Law concept of non compos mentis, the question arises as to what has become of the practical meaning of the term “insanity”, when used as a defence. The article tries to show that the defence of insanity is a public act of judicial denunciation against the accused, while the accused may have no effective responsibility for the crime. Argument begins with a critical discussion on the character of common-place denunciation as an appeal to public agreement. Then, it follows how the idea of “manifest criminality”, of the 1800s, might be cognate to modern ideas of “manifest madness”, linking into the origins of the English special verdict of insanity. This will allow a short critical analysis of the M’Naghten Case. Argument is completed with analysis of a psychologists’ expert construct of insanity and its relationship to jury perception. The article will suggest strongly that arguments based on the common law rules of insanity tend to expose juries more to denunciation of the accused, than to a reasoned account of the nature of his insanity and to the defects in his responsibility. Duly persuaded jurors would tend to acquiesce and participate in the denunciation of an accused person, whose unusual and unhealthy behaviours emanated from his sufferings by dint of his unbearable circumstances.     

Predicting verdicts,adherence to judge's instructions,and assumptions about the disposition of the defendant in a case involving the insanity defense

Abstract

296 college students and jury eligible adults completed attitudinal measures and read a case summary of a murder trial involving the insanity defense. The case summary included opening and closing arguments, testimony from expert witnesses, and judge's instructions. Although broader legal attitudes (the PJAQ) predicted verdicts, the Insanity Defense Attitudes-Revised scale provided incremental predictive validity. Attitudes related to the insanity defense also predicted adherence to judge's instructions, whereas more general legal biases predicted a juror's willingness to change their verdict after being provided with accurate information about the defendant's disposition following the verdict. Importantly, misconceptions concerning the insanity defense impacted verdicts and many jurors made decisions that failed to adhere to the judge's instructions, though the nullification tendency does appear to vary as a function of pretrial juror attitudes. Implications for instructing jurors in insanity defense cases will be discussed.     

Writing Human Rights History—And Social Science Encounters

This review essay on Aryeh Neier's The International Human Rights Movement: A History (Princeton University Press, 2012) discusses Neier's central themes: the origins and maturation of the movement and its effects, including the expansion of human rights and humanitarian law, enhanced criminal accountability for human rights crimes, and the appearance of criminal tribunals, culminating in the International Criminal Court. An overview is interspersed by imaginary conversations between Neier and scholars who speak to his themes, especially legal scholar Jenny Martinez, political scientists Margaret Keck and Kathryn Sikkink, historians Devin Pendas and Tomaz Jardim, and sociologists John Hagan, Daniel Levy, Natan Sznaider, Joachim Savelsberg, and Ryan D. King. Linking a practitioner's account with scholarly analyses yields some benefits of “Pasteur's Quadrant.”     

Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

"Insanity" in civil law

The issue of "insanity" is rarely alluded to in the area of civil law. As a consequence, the legal standard for insanity is not clearly understood by many psychiatrists. The standard derives from case law and is based upon statutory law in the criminal sector. A civil case will be presented where the question of "insanity" was raised. In this case an individual committed suicide and his insurance company refused to pay the beneficiaries of his life insurance policy based upon a provision in his policy that excluded payment in situations of suicide. His beneficiaries sued, claiming that the deceased was insane at the time of his suicide and therefore not responsible for his actions. The standard for insanity in New Jersey and the reasoning of the psychiatrists will be presented.     

The social construction of criminal responsibility and insanity

This study examines the effects of judicial instructions (traditional American Law Institute [ALI] not guilty by reason of insanity [NGRI] instructions contrasted with ALI instructions supplemented with the guilty but mentally ill [GBMI] alternative) and case information cues (delusional content and planfulness) on student and community subjects' attributions of responsibility. GBMI instructions substantially reduced the probability of NGRI and guilty verdicts in response to vignettes portraying highly psychotic defendants and altered the pattern of variability in responsibility construal ratings. Variation in delusional content cues (self-defense versus non-self-defense) influenced ratings of criminal appreciation but did not affect the verdict distributions. Less planfully commited crimes resulted in higher proportions of insanity verdicts. However, individual differences in responsibility construals of the defendant and in attitudes toward the insanity defense were stronger predictors of verdicts than the design variables, suggesting that individual differences in social-moral cognition are at least as relevant to the attribution of responsibility as are case cues or legal frames of reference. Contrary to previous studies,Witherspoon death penalty attitudes were not related to verdicts, but people without conscientious scruples toward the death penalty were more likely to render guilty verdicts.     

Measuring the effects of the guilty but mentally Ill (GBMI) verdict

We studied effects of guilty but mentally ill (GBMI) legislation on use of the insanity defense in Georgia using data on all defendants entering an insanity plea before (1976–1981) and after (1982–1985) the introduction of the GBMI verdict. In contrast to earlier studies, our results indicated that GBMI did decrease the likelihood of an insanity verdict and affected the composition of those found not guilty by reason of insanity. Defendants pleading insanity and found GBMI were typically white males with a serious mental disorder, charged with murder or robbery in which an unrelated female victim was involved. The data also indicated that defendants who pleaded insanity and were found GBMI received harsher sentences than their guilty counterparts. We conclude that the GBMI verdict will make the insanity plea a less appealing option for mentally ill defendants.     

The trial of Abner Baker, Jr., MD: monomania and McNaughtan rules in antebellum America

On the third of October 1845, in a small mountain community in Kentucky, Abner Baker, Jr., MD, was executed for the murder of his brother-in-law Daniel Bates. At the trial Baker's attorney argued unsuccessfully that at the time of the crime the accused suffered from monomania, a form of mental disease, and therefore should not be held responsible for the act. The trial bears historical significance by the fact that it took place only a year after the formation of the Association of Medical Superintendents of American Institutions for the Insane, the first professional organization of psychiatrists in the United States, and two years after the McNaughtan ruling in British jurisprudence which molded the insanity plea around the concept of "knowing right from wrong." Because it took place at this particular juncture in the history of both law and medicine, it provides a revealing portrait of how medical and legal concepts on insanity interacted with the indigenous social and political circumstances of antebellum America.     

AN ANALYSIS OF PUBLIC ATTITUDES TOWARD THE INSANITY DEFENSE*

Results from a public opinion survey of knowledge, attitudes, and support for the insanity defense indicate that people dislike the insanity defense for both retributive and utilitarian reasons: they want insane lawbreakers punished, and they believe that insanity defense procedures fail to protect the public. However, people vastly overestimate the use and success of the insanity plea. Several attitudinal and demographic variables that other researchers have found to be associated with people's support for the death penalty and perceptions of criminal sentencing are also related to support for the insanity defense. Implications for public policy are discussed.     

On Finding for Defendants Who Plead Insanity: The Crucial Impact of Dispositional Instructions and Opportunity to Deliberate

One hundred twenty participants functioned as mock-jurors and as members of deliberating juries in an experiment designed to assess the impact of dispositional instruction on verdicts rendered in an insanity trial. Consistent with prior research (K. E. & J. R. Ogloff, 1995), dispositional instruction had no effect on the verdict preferences of individual jurors prior to deliberating. Yet, as expected, the instruction manipulation had a major impact on postdeliberative decisions (i.e., group verdicts; individual juror verdict preferences). Content analyses of jury deliberations revealed that postdeliberative shifts toward harsh verdicts in uninstructed juries and toward lenient verdicts in instructed juries were mediated by the impact of the Instruction manipulation on the content of jury deliberations: uninstructed juries feared that an acquitted-insane defendant would be freed to act again, whereas instructed juries recognized that finding for an insane defendant implied his retention and treatment. Implications of these results for both legal policy and the conduct of mock-trial research are discussed.     

Packer in Context: Formalism and Fairness in the Due Process Model

Herbert Packer's The Limits of the Criminal Sanction (1968) has spawned decades of commentary. This essay argues that Packer's two‐model conceptualization of the criminal process is best understood within his professional milieu of doctrinal legal scholarship and the political context of the Warren Court revolution. Within this context, the essay suggests a distinction between two due process visions: formalism and fairness. This distinction is useful for illuminating debates and decisions on criminal procedure matters in the Supreme Court such as Terry v. Ohio (1968) and Apprendi v. New Jersey (2000) . I conclude by encouraging sensitivity to legal and historical context in future commentary on Packer's framework.     

Insanity plea: predicting not guilty by reason of insanity adjudications

Using 35 variables and discriminant analysis procedures, it was found that, of 133 male defendants entering the insanity plea in Colorado, 87 percent were classified correctly into the disposition groups "adjudicated insane" and "convicted." Most positively related to an insanity adjudication were a psychiatric evaluation of insanity and a diagnosis of schizophrenia. Negatively related to the insanity verdict were diagnoses of substance use and personality disorders.     

'Manifest Madness': Towards a New Understanding of the Insanity Defence

This article introduces a new concept which can serve as a theoretical frame for understanding the way in which insanity is proved for the purposes of the criminal law. With reference to George Fletcher's concept of 'manifest criminality', it introduces the concept of 'manifest madness'. This concept constructs madness (a shorthand for the types of mental abnormality known to the criminal law as insanity) in criminal law as evident to lay observers, and its meanings, which are derived from collective knowledge of it, as encoded in the defendant's acts. Through an historical analysis of the way in which insanity has been proved in criminal law, the article argues that 'manifest madness' is useful for understanding how knowledge about insanity is structured in the criminal courtroom. The concept of 'manifest madness' provides a frame that incorporates evidentiary and procedural features of the insanity defence that have resisted systematic theoretical analysis.     

Factors that influence jury decision making

Investigated whether information regarding the disposition of insanity acquittees and the defendant's mental state at the time of the trial, had a significant effect on mock jurors' verdicts. Two trials were used to assess whether results generalize across cases. participants read excerpts from a trial in which the accused's mental state at the time of the trial (symptom free, neurotic symptoms, or psychotic symptoms) and the disposition instructions (no instructions, indeterminate disposition, and capped disposition) were varied. Participants then rendered a verdict of guilty, not guilty, or not criminally responsible on account of mental disorder (NCRMD). Participants who thought the accused was psychotic at the time of the trial were more likely to render a verdict of NCRMD than guilty, and they were more likely to render a verdict of NCRMD than those who thought the accused was normal. No significant differences were found for disposition. Finally, a significant difference for verdicts was found between trials.     

The insanity defense: effects of abolition unsupported by a moral consensus

The insanity defense reflects the moral judgment that some criminal defendants do not deserve criminal sanctions because of mental incapacity. This Note examines the alternative formulations, such as guilty but mentally ill and diminished responsibility, that some states have enacted in the face of growing controversy over the insanity defense. It observes that the alternatives, if used in lieu of the insanity defense, distort the criminal law and do not comport with the legal doctrine of responsibility, which eschews punishing mentally ill defendants. The Note concludes that the insanity defense should not be abolished unless the moral consensus changes regarding the criminal responsibility of mentally ill defendants.     

The insanity defense

Changing thelegal test definition of insanity remains the remedy of choice when insanity outcomes appear problematic, despite empirical studies showing no significant differences among tests. An alternative strategy suggests changing theverdict schema, although critics contend that jurors will reach compromise verdicts that are unconscionable and incoherent. Undergraduate subjects (N=179) rendered insanity verdicts and ratings for four insanity cases using one of four different verdict schemas: a traditional two-choice schema, a three-choice schema (DR) without instructions, a threechoice schema (GBMI) with instructions, and a sequential schema proposed by Finkel (1988) that separately assesses different types of culpability. When internal consistency measures between verdicts and broad ratings and specific construct ratings of the defendant were examined, the sequential schema produced the highest internal consistency, reducing the most error variance and yielding the highest prediction criterion of any of the schemas.