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。     

Menstrual cycles and criminal responsibility

Since at least the turn of the century, there have been reports indicating that women have an increased tendency toward criminal behavior during certain phases of the menstrual cycle. Recently these reports have served as the basis for a proposal to expand the insanity defense to recognize the impact of menstrual cycles in diminishing criminal responsibility. This paper reviews the empirical literature on the link between menstruation and crime and raises several critical questions regarding interpretation of this data. In light of these questions it is suggested that at this time an insanity defense based on menstrual symptomology would be inappropriate.     

Criminal defense counsels,district attorneys,and the insanity plea: A modest difference of opinion

This research examines differences between samples of 166 city and county prosecutors and 118 defense attorneys from Virginia, Tennessee, and Kentucky concerning their views toward the insanity plea in felony cases. Currently, tests for insanity used by the states are the M’Naghten rule, the ALI Model Penal Code test, and the Smith “irresistible impulse” test or combinations thereof. Defense counsels greatly favor the prosecution bearing the burden of proving a defendant’s sanity, while a majority of prosecutors believe that this is the defense counsel’s responsibility. Twenty-five percent of the prosecutors surveyed believed that it is the prosecutor’s responsibility to show by clear and convincing evidence, beyond a reasonable doubt, that defendants are sane and capable of bearing the responsibility for their crimes alleged. Philosophical and practical arguments about the burden of proof issue are examined. Preferences of defense counsels and prosecutors for different insanity tests are explored, finding that a majority of attorneys favor the more recent ALI test.     

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.     

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.     

An empirical investigation of insanity defense attitudes: exploring factors related to bias

This study's primary aim was to evaluate factors that influence attitudes toward the insanity defense in a sample of 578 college undergraduates. In addition to a comprehensive demographics survey, participants completed the Insanity Defense Attitude Scale-Revised (IDAS-R) and the Attitude Toward the Death Penalty (ATDP) Scale. Favorable attitude toward capital punishment and misperceptions about overuse of the insanity defense were related to negative attitudes toward the insanity defense. Hierarchical regression analyses demonstrated that possessing a favorable attitude toward capital punishment was the most robust predictor of a negative attitude toward the insanity defense. These findings provide valuable information about factors that create and maintain biases against the insanity defense and suggest areas of inquiry that could aid attorneys in selecting unbiased jurors.     

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.     

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.     

New perspectives in the legal psychiatry of cocaine-related crimes.

The legal criteria for the insanity defense as it applies to cocaine-related crimes remains elusive because of cocaine's unique spectrum of effects on human thought and action. This paper discusses the literature relevant to cocaine and forensic psychiatry/psychology, and summarizes the results of a survey of forensic psychiatrists on the topic of drug-induced psychosis. A conceptual framework is posited for the expert witness to distinguish the separable effects of cocaine on human behavior and to clarify their relationship to criminal responsibility.     

Attorney general’s task force on violent crime--1981 three recommendations for legal reform in the criminal justice system

In the spring of 1981 Attorney General William F. Smith appointed a Task Force on Violent Crime with the assignment to report to him concerning specific ways in which the federal government could do more to assist in controlling violent crime without limiting its efforts against organized crime and white-collar crime. The Task Force submitted their final report which contained 64 recommendations. Three of the recommendations concerned the insanity defense, the exclusionary rule and habeas corpus actions.The purpose of this paper is to consider each of these three subjects with regard to their effect on national policy concerning the criminal justice system. In addition each recommendation is discussed with regard to the current status of the law in these areas and proposed congressional legislation on each subject. Further, where applicable, state legislation and federal and state judicial decisions relating to each subject are identified and discussed.In addition to legislation and judicial decisions, selected articles, text books, newspapers, news magazines, and statements by government officials were also utilized as resource material in preparing the article.The Task Force recommended a new option concerning the insanity defense, that of guilty but mentally ill. Concerning the exclusionary rule the Task Force recommended a good faith exception to the rule. With regard to habeas corpus actions, the Task Force recommended several procedural changes including a statute of limitations and a “cause and prejudice” requirement to support federal habeas corpus action. This article supports the recommendations of the Task Force and concerning the insanity defense and exclusionary rule suggests that both should be abolished.     

The psychiatrist's guide to right and wrong: judicial standards of wrongfulness since M'Naghten

In insanity defense litigation, the precise legal definition of wrongfulness is often critically important. References in the M'Naghten Rules to the appropriate standard of wrongfulness were ambiguous, resulting in a divergence of judicial opinion as to whether wrongfulness means legal wrong, subjective moral wrong, or objective moral wrong. This article reviews and analyzes these three judicial standards of wrongfulness in the context of case law from jurisdictions that follow each of the respective standards. The evolution of knowledge of right and wrong tests of criminal responsibility is traced back to its philosophical roots. Most psychiatrists claim no expertise in matters of morality or law. The American Psychiatric Association would bar psychiatric expert testimony on the ultimate issue of insanity, on the grounds that there are "impermissible leaps in logic" when psychiatrists opine on the probable relationship between medical concepts and moral-legal constructs. Whether or not they testify on the ultimate issue, psychiatrists should ascertain the applicable standard of wrongfulness in order to properly relate their findings to the relevant legal criteria for insanity and thereby enhance the probative value of their testimony.     

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.     

The psychiatrist's guide to right and wrong: Part III: Postpartum depression and the "appreciation" of wrongfulness

Whether or not the psychiatrist testifies on the ultimate issue in insanity defense cases, it is critically important that he familiarize himself with the applicable legal standards and interpretations in order properly to relate his clinical findings to the relevant criteria for insanity and thereby enhance the probative value of his testimony. This is the third in a series of articles which attempts to explicate judicial and statutory standards of insanity and correlate them with the psychiatrist's findings of psychopathology. This article analyzes the Model Penal Code formulation of insanity, with special emphasis on the all important distinction between "know" and "appreciate." This formulation permits the defendant possessed of mere surface knowledge or cognition to be exculpated, requiring that he have a deeper affective appreciation of the legal and moral import of the conduct involved if he is to be held criminally responsible. The Model Penal Code approach more readily lends itself to application as a standard of responsibility in cases involving affective disorders. An important disorder within this group, postpartum depression, is discussed in the context of raising the insanity defense in a case of infanticide.     

论中国死刑案件中的精神病抗辩

随着权利话语的流行与国家对被告人权益保护的增强,中国死刑案件中的被告方在庭审阶段频频提出精神病抗辩,意图减轻罪责或不负刑事责任。然而,实践中却显示出如下悖论:被告方虽时时提出抗辩,但法庭却不愿启动精神病鉴定程序。这一现象的原因在于:当前被告方提出精神病抗辩的证明责任分配不明;被判无罪精神病人的监管难题与强制治疗措施缺乏;精神病鉴定一再反复导致法官无以判案等等。因此,在我国近年越来越重视死刑案件审判程序的背景下,有必要重构被告人精神病抗辩的合理制度,使其在维护被告人正当权益的前提下也不至于无章可循、变得过度泛滥。     

An ethical framework for assessments of criminal responsibility: applying Susan Wolf's account of sanity to forensic psychiatry

Within the context of an ethical theory of responsibility, Susan Wolf has argued that people can only be considered fully responsible for their actions when they are sane. In this paper I explore the possibility of applying her ethical account of sanity and responsibility to forensic assessments of criminal responsibility. I argue that after some substantial revisions her account can be helpful in order to arrive at an ethics-based conceptual framework for forensic psychiatric assessments within the context of an insanity defense.     

How the insanity acquittal retards treatment

In the continuing social debate about the insanity defense, little attention has been paid to the effects of the insanity acquittal on treatment. This article suggests that the insanity acquittal may retard treatment of mentally disordered and violent offenders. Failure to assign responsibility to a mentally disordered offender may lessen his/her initiative and emotional opportunity to make needed changes in perceptions and functioning. Three case studies illustrate the argument.     

A comparison of insanity defense standards on juror decision making

Following the Hinckley acquittal, 17 states and the federal government made changes to the insanity defense, including revising the standard, reassigning the burden of proof, and altering the standard of proof. Two studies were conducted to determine whether the specific insanity standard (including the assignment of burden of proof and standard of proof) employed had a significant effect on mock jurors' verdicts. Participants' comprehension of insanity defense instructions was measured and the factors jurors used to decide whether to find the defendant not guilty by reason of insanity (NGRI) were also assessed. Participants' comprehension of insanity defense standards was very low. When asked to identify the factors they considered important in determining whether to find a defendant NGRI, only three elements of insanity defense standards were identified as significant. The results may have important implications for policy decisions regarding the insanity defense.     

Pathological gambling and criminal responsibility

There exists significant interdisciplinary support for eliminating the volitional component of the insanity defense. Somewhat in contrast to this trend is the presentation of pathological gambling as a potentially exculpatory condition in criminal trials. The authors discuss three federal appellate court decisions on this attempted inappropriate usage of psychiatric diagnostic nomenclature. All have upheld convictions, and thereby rejected contentions that such an impulse disorder can form the basis for a valid plea of lack of criminal responsibility. It is suggested that the public interest will be served by statutorily making disturbances of behavioral control insufficient to raise a defense of insanity.