From Toga Guy to John Hinckley: A History of Pleading Insanity

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:03 Jenessa: He showed was up in a toga and stood on the table and and the judge found him incompetent to stand trial so least as early as the 1300s we have records of english kings pardoning murderers because their crimes were committed while suffering from madness so

0:00:33 Thomas: And welcome to Opening Arguments, this is episode 1300, Jenessa, big news, you got to be on 1300, that's pretty cool, you sound excited, tell your face, it's just hard to get you excited about numbers, I guess, no, it's just cool, yeah it's a hundred times the bad luck we'll see how the episode goes how are you doing today yeah

0:00:39 Jenessa: I didn't know about that until just now that's exciting good number I yeah yeah possibly I mean well 1300 I don't know is that like bad luck or something it's got a 13 in it yes a thousand times something doing pretty good I'm uh excited to not talk about the news. Well, kind of. Talk about bad or good voting news. Just not that.

0:01:11 Thomas: Not talking voting news well what are we going to be talking about yeah

0:01:19 Jenessa: Figured we could talk about the so-called insanity defense. Been in the news a little bit lately. And Matt have been talking about it. Other people have been talking about and there's been a lot of talk about, hey, Massachusetts does it so different. And what I haven't heard a lot of is here's how everybody else does it um exactly so I figured we could go through the history of it um did we get here to where uh but four states have some version of an insanity defense um have previous defenses looked like what did the old tests look like and we can talk about new york because it's the one I know yeah

0:01:37 Thomas: Different from what yeah if you're in those four states that does that just mean they're all really perfectly sane just no one has ever probably not oh

0:02:06 Jenessa: Don't know man you was a supreme court case that where they tried to say like obviously due process you have to offer this and the court was like it's up to the states how they they want to handle this like probably not yeah

0:02:16 Thomas: Wow yeah that's not good. Right. Well, that's going to be interesting. I'm excited. Yeah. Like you said, somewhat news related, but more of a deep dive. I am excited to learn more about it. Yeah, I will teach you a thing or two about it, person taking your ticket and the movie, you and you're like you too, you know?

0:02:27 Jenessa: Too oh god I do that all the time it's so awkward and

0:02:38 Thomas: Enjoy your deep dive you too. Ah, God damn it. Ah. Why did I say that and that's

0:02:41 Jenessa: Then I just 10 years later I think about it on my way to falling asleep yeah

0:02:47 Thomas: Why we're insane and can't be held liable for murder it's gonna bring its full circle no I don't know all right well we'll take a quick break sports show patreon .com slash lock at the goodies the lot awful movies that full version that uh was so much fun hope people heard that and uh the book club just happened I bet it was really fun we're recording a few days ahead of that but that's awesome also so lots of good reasons and make take a quick break, and then get into it. Be insane not to join Patreon. Sorry.

0:02:52 Jenessa: There we go good job my God. Wow.

0:03:18 Thomas: So dumb.

0:03:23 Jenessa: First thing I'll say is, there are a lot of misconceptions about this. Initial data I had on this that I did not realize how old it was lingering in my slides from when I used to teach um psychology this was relevant um goes back to 1994 there was like a big study about what do people think about the insanity defense and they had a parallel thing where they were asking um people you know your state legislature or whatever but just asking the general public the perception back then was that um you had people guess like Like, how often do people use this defense? People estimated that it was used in 37% of felony cases.

0:04:09 Thomas: Felony, just any felony cases? Wow.

0:04:12 Jenessa: Just whenever.

0:04:13 Thomas: Usually it's like the murder that I typically would think people think of it.

0:04:17 Jenessa: I think they probably tried to ask more broadly than that. Estimated it was successful 44% of the time. That 26 percent of the people who were successful would be set free and when they said what do you think how much time did they spend in a mental hospital people estimated you know on average 22 months so some people obviously said more some said less uh that same year what were the actual numbers the insanity defense was raised in less than one percent of criminal trials It was only successful about 25% of the time when it was raised. 15 % do just plain old go free. So, you know, some sort of temporary insanity defense. The average sentence would be, you know, sentence, not exactly sentence, would be 32 to 33 months in a psychiatric facility, which on average is as long or longer than they would have served in a uh, jail or prison, uh, for the same crime. Stuck with those because that's data from the exact same time point, just to show how wrong people were about this. I found, uh... Lydia helped me dig up, because things are behind paywalls, which is nonsense. A 2025 paper found, it's like, oh my God, it's so different now, but they're comparing to like some papers had worse numbers and some were better. The estimated frequency of people in that study from 2025, they estimated it was used in 31.6% of criminal cases and that it would succeed 22.27% of the time. So rate is closer to correct, presuming, you correctly guessed that it was never used, which

0:06:09 Thomas: What?

0:06:09 Jenessa: Is, you little off. So still wildly overestimating how frequently this defense is attempted in criminal cases. Does that matter? Um, there are constant calls for reform and, a and, lot of demonizing, honestly, of people with mental illness, um.

0:06:28 Thomas: I haven't seen any of that lately. I don't know what you're talking about. I can't even imagine yeah

0:06:32 Jenessa: Yeah. It's, uh, kind of only getting worse lately, honestly. Um, as a reminder, people with metal illness are more likely to be a danger to themselves or to be the victim of a violent crime than they are to commit a violent crime. In fact, the vast majority of violent crime that's connected to mental illness is really connected to substance use disorders, which are connected to crime because it's illegal to obtain the substance. Usually if you're trying to obtain an illegal substance from a drug dealer, like when violent crimes happen. Happen, it's extremely unlikely that somebody is just going to be crazy walking down the street and attack you for no reason. That's just like very rare. Not the thing you need to spend your time worrying about, but a lot of people are spending their time worrying About it. So matters that people are really overestimating this idea that you're going to just Oh, just say you're crazy. And then it'll get away with it like

0:07:28 Thomas: We've talked about it a lot in the past and uh you know there's the famous simpsons where he's playing the video game it's like plead insanity plead insanity and you know there was this belief that you just like get away with murder if you do that we had it in a lot of movies recently uh yeah it was the kevin bacon one where he was like now I'm gonna plead insanity because I yelled a bunch of stuff in the courtroom yeah it's so stupid ah

0:07:40 Jenessa: Not how it works oh right right great job yeah totally they'll believe you now um does this come from um interesting that you know we always say like insanity is not a term and no psychologist is going to be like I diagnose you insane sane um a thing uh not in the dsm it's not a diagnosis at all but um idea that we have this like antiquated language that doesn't match the medical stuff it's actually because the idea of an insanity defense comes from way before psychology it was ever medicalized or made scientific in any way um most of history psychology was like just built into philosophy if you were thinking about the human mind you were just doing a branch of philosophy um the attempts to make psychology into more of a science um it was intertwined with neuroscience from the very beginning it starts you know you could probably argue about where exactly and when and how but like Germany in the mid -1800s is like the modern psychology movement that we know about dsm -1 is published in 1952 uh -1900s is also around the time we start to get therapies that are going to actually hold up to scientific scrutiny on the other hand thinking about insanity defenses and the criminal system at least as early as the 1300s we have records of english kings pardoning murderers because their crimes were committed while suffering from madness madness so

0:09:31 Jenessa: That you could have committed a crime but not it would not be appropriate to hold you liable for it because of something going on with your mind wildly predates any medicalization of the mind so actually makes a lot of sense that you know we were built off that english legal system we're still using that legal terminology and not the medical terminology it's also true for like all disability law stuff like

0:09:29 Thomas: Madness yeah that's why there's so much language that is not chill I

0:10:08 Jenessa: Um uh in new york uh of this falls under the mental hygiene hygiene laws which

0:10:14 Thomas: Just haven't been flossing my brain enough scrub

0:10:16 Jenessa: We literally still call it that and it leads to confusion like if you have somebody who's really struggling with their mental health and they're like why the document you just handed me says I'm in here because of poor mental hygiene there's a an article from the new york state bar association that's like we have to change this I literally had a patient telling me like all these other people stink I'm clean I brush my hair. I brush my teeth. Why can't I get out of here? It hygiene on this form. I'm hygienic.

0:10:30 Thomas: Your brain oh

0:10:47 Jenessa: Really need to change this. It's so bad. The other hand, we really don't want to be using medical language because don't want it to require that you have any specific diagnosis. If thing you have isn't in the DSM exactly or we don'T know know exactly what's going on with you that shouldn't bar you from legal protections you know ada doesn't do that it's just any physical or mental impairment that is interfering with you know whatever protected function good enough you know doctor can be like I don't know why your legs don't work but they're not working and it's like okay then you get accommodations and probably probably want to keep it that way so first one that's kind of like the beginning of a sort of a real test is I'm gonna try to figure out how to say this it's m and then like an apostrophe n -a -g -h -t -e -n so I'm going to say monoton it's not not like McNaughton. There's no C. Manhattan? Manhattan? The M test. Manhattan test. Something

0:10:46 Thomas: Boy yeah okay what

0:11:56 Jenessa: Like that. So this is one of the earliest tests that like actually got some sort of legal standing in 1843. It became the rule in England and the United States. I think everybody was just hunting for a rule that made any sense. Like earlier stuff was like using terminology like idiot and madman and wholly lose if their memory that's not helping anyone yeah people pontificating various judges um one becomes a rule and so it says this to establish a defense on the grounds of insanity it must be clearly proved that at the time of the committing of the the act the party accused was 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 did know it that he did not know he wasdoing what was wrong it

0:12:53 Thomas: Wow that actually sounds quite a bit like the massachusetts one yeah

0:12:56 Jenessa: Does doesn't it massachusetts the commonwealth that english settlers didn't change much pretty much that test comes out mid -1800s and on the one hand like the u .s and england adopt it but then on the other hand it's like instantly criticized by a lot of people um of the big ones I thought this was so interesting is you had brought this up on uh the show with matt that was But it some podcast where a woman who had had postpartum psychosis talked about being very rational within the delusion, that experience. So this guy, Sir Isaac Ray, I don't know what got him the sir, it's just important, I guess, a noted American physician. So I again don't know how he got to be a sir had argued that the insane mind is often perfectly rational and displays the exercise of a sound and well -balanced mind so he's saying this idea that you're focused just on the cognitive part is incomplete you have to think about your ability to control yourself as well so somebody was like oh I thought I was was being abducted by aliens so this person came running at me I thought it was one of the aliens and

0:14:12 Jenessa: I defended myself within the delusion if we believe the delusion which obviously that person you know presuming we believe them they did believe it it was a rational not just a rational thing to do but like a legal and moral thing to you can defend yourself from an abduction protection.

0:14:29 Thomas: That's what I'm saying yeah I mean it seems like that's so so obvious you know if there's some other part thing that's going on with your brain that leads you to these really out of reality conclusions but you're still able to be reasonable within that to a certain extent yeah

0:14:46 Jenessa: That like, that shouldn't just exclude you. In fact, it fits quite well. He's getting at is more of the like, if somebody is like, well, the aliens are coming. So that's why I had to change the wallpaper. And you're like, oh boy. All right. Get me from A to B to C. I don't even know.

0:15:00 Thomas: I agree that that's more crazy

0:15:03 Jenessa: Yeah, yeah, yeah. One example where, where, okay, was a case in Virginia where the law at that time, the judge did find this person was allowed to raise an insanity defense. Guy believed the government was spying on him. Gets a diagnosis of paranoid schizophrenia. There's a lot more symptoms that fit quite well with that. So when a crop dusting plane flew over, he believed that was was a government spy and he shot the plane down and the person died so if we just focus on the like within the delusion part even if the government had been spying on him it would not be legal right that doesn't make it okay um what this guy's getting at is if he's that lost in the delusion at some point does he have control over what he's doing anyway like should we not add something to pick up that person and not this is a philosophical question really um the context of the delusion the behavior is neither legal nor morally acceptable but um sure seems different than if I just did that right now without paranoid schizophrenia you it's a complaint that gets raised uh um on the other hand now this is the thing where you start seeing people raise like well anybody could just say this and I'm like I don't know if that's true but

0:15:39 Thomas: You can't just shoot them yeah hmm

0:16:28 Jenessa: The test language were taken seriously it would excuse only those totally deteriorated drooling hopeless psychotics you're like oh okay so they This person thinks it's too strict, it's too rigid, that you have to be so... It's such a defect of reason that you can't know what you're doing or that it's wrong and some psychiatrists were like, maybe we should be a little more flexible about this. The monotone test is where, like, everything starts. Some states start doing this sort of supplement thing, so instead of, like a brand new replace that test, we'll put like a little extra piece and they came up with this idea of an irresistible impulse rule so one starts in 1887 in some places and here's what they write the defendant is not legally responsible if the two following conditions occur number one if by reason of the duress of mental disease he had so far lost the the power to choose between the right and wrong and to avoid doing the acting question as his free agency was at the time destroyed to and if at the same time 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 I never know what to do with this one trying to get at that volition idea the do you know what you're doing do I if you shoved me into someone I can't be committing a battery because I had no voluntary control over my behavior I don't know that the law necessarily already would therefore cover like I had had no control over my limbs because I had no mental control but

0:18:21 Thomas: I think that's different because in in the one case there's another person that you can go after hmm

0:18:26 Jenessa: But like uh also if I tripped and fell uh would count if I had a seizure and that caused me to flail my arm I can't be guilty of a battery for hitting you so there'd be a better way to just have that encapsulate also like being lost I don't know problem we have run into here I think is just it's still not picking up much because like it has to be the behavior was solely the product of the mental disease and like when is that ever true

0:18:55 Thomas: I don't know how you do that yeah it's like this all seems really hard to know for sure yeah

0:19:00 Jenessa: Of it it's just I mean putting labels on any of this is so difficult

0:19:05 Thomas: I guess there's like two there's there's two distinct at least two distinct problems which is like how are we defining defining insanity if just to use that shorthand? And then two, how do we know or prove when a person is that? You're not in their brain. So it's like, it's, it'S really challenging.

0:19:18 Jenessa: Yeah that's exactly the legal community response to that again this is the 1800s oh anybody could just easily feign this sort of impulsivity and like again I don't know if that's actually true or knowing exactly what legal standard they're going to hold somebody to like what the evidence would have to be for that it's harder to say

0:19:42 Thomas: I was going to say, you would expect that they'd have to have, you in old timey times, testimonial evidence of like, yeah, this person has this behavior or whatever that has this condition, or there'd be more than just like pretending, I would think.

0:19:46 Jenessa: Say yeah right but don't have like psychologists yet I guess we we sort of have psychiatrists but like not we have medical doctors who will be like there's something not right in the head but like we don'T have officially any sort of diagnosis of pretty much any mental health disorder yet so how does that testimony even work it's really hard um we graduate from that one to the durham rule don't get too married to this one it's going to die really fast um called the durhum rule because of a court case in 1954 um also called the products test because it's like it'll show up in the language somebody first came up with it in 1870 but it finally gets like adopted in uh 1954 in the district of columbia and it'll get picked up in new hampshire so this is the the whole rule an accused is not criminally responsible if his unlawful act was the product of mental disease or defect that's it that's all this this

0:20:59 Thomas: Well how does it become the product why how do you define

0:21:02 Jenessa: Exactly so the biggest problem is just the total lack of guidance on the one hand they were kind of hoping that this would be better because it would put the onus on the expert to explain like what is the mental disease or defect like behavior the product of it like you somebody has to just get on the stand and explain this but what really happened is like end up with total chaos because no, it's just varying way too much from one case to another. As personality disorders got added to the DSM, that time it would have been called a sociopath. Somebody who just like lacks empathy would technically be someone with a mental disease or defect. Effect so does that count like uh nobody liked that it could count let's put it that way way they had originally conceived of this was that like oh you're just so out of your head you don't even know what you're doing and really did not want to think about like well this person struggles to feel empathy for others and that's why they shot someone was not the original intent of the law let's put it that way

0:21:49 Thomas: Doesn't it yeah I think it's more about something because you know again coming from a mindset that's probably religious or or even if not religious like a very punitive mindset people are probably wanting to differentiate like is this temporary or not like is the thing because like should we we kill you for this? Or like, hypothetically, could you be cured of it? And under that kind of thought process, being a sociopath, I'm sure people would have been like, nope, can't be cured. You're dead.

0:22:42 Jenessa: Like two main things there is the um part and the the moral aspect of like is it right to punish you so like obviously if you literally didn't know what you did it's hard to justify why you should be punished for it and also from the deterrent side of things yeah you didn't have control like you for it doesn't deter you from doing it again later because you you didn'T mean to do it the first time and you're so it's kind of hard to make it make sense this is the same logic that'll get used for people with intellectual disabilities that they didn't know what they were doing and they couldn't plan their behaviors obviously extremely dismissive and uh um I don't know how else to say it one died as soon as personality disorders hit the DSM and everybody was like, nope, nope, no, nope. We're not including those people. No, we have to change this. So that test dies in 1972. It gets overturned. Of the publication of this textbook that I'm using from 2020, New Hampshire is the only state that still uses that test. So guess if you get accused of a crime in new hampshire the uh defense is quite uh and hard to define you might struggle a bit okay

0:23:31 Thomas: That's the legal term.

0:24:10 Jenessa: We get the american law institute test this is the one that is probably the test in most places at this point uh Law Institute didn't even know it was a thing um

0:24:18 Thomas: American Law Law Institute. They go crazy and kill somebody or something? Like how did they get to like set the standard?

0:24:29 Jenessa: A lot of places like different institutes create like model whatever so there's like the model penal code and the model anytime it's a state law thing so if there's a federal law obviously congress just makes it the law for the whole country if there is contracts torts property that's state law but man does it help if the states do similar stuff so there's like the um second restatement of torts it's not binding in any way it's just essentially some nerds wrote down what would this would be great rules if y 'all would just do it and your state may or may not have adopted some or all of it or modified some of it and yet you study it in law school because it's easy to test on the thing that is written down and uh the same because

0:25:22 Thomas: Harsh to have to take a test on like, here's the law that's like, wouldn't it be great if it was like this? Like, yeah. Okay. Okay. Is that useful?

0:25:29 Jenessa: Eternal frustration is that the uniform bar exam no such thing as uniform laws across all 50 states so how is this even real uh you You study a bunch of laws that are, like, literally not the law in any state. Every state has modified it to some degree. Why am I doing this? The American Law Institute made up a model penal code. Most states adopted this language to some degree. Like, your state is probably using slightly different wording, but more or less they're using this. And this, 1955 is when they first put this out. Here's our wording. 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, brackets wrongfulness, of his conduct or to conform his conduct to the requirements of law. Might sound really familiar because it's nearly identical to the Massachusetts rule.

0:26:37 Jenessa: I can read that one back to you if you'd like. The standard in Massachusetts comes from Commonwealth v. I'm going to say McCool. It's M -C -H -O -U -L from 1967. And they specifically say in that case, jurors were instructed based on the model penal code from the American Law Institute. Was that acceptable? Because we have our own rule. What the heck are you doing? That's like not the law. Their rule was pretty similar. So their rule is uh of criminal responsibility so they don't call it an insanity defense that's not what they say lack of terminal responsibility because the person suffered from a mental disease or defect and as a result either lacked the capacity to appreciate the wrongfulness of their conduct or lacked the ability to conform their conduct to the requirements of the law very very similar. Biggest thing hinged on like capacity versus the American Law Institute says substantial capacity. Like, is that a different instruction? And we had to have a whole court case about it.

0:27:44 Thomas: Got a question. If two states, like let's say, and it sounds like there are multiple states or groups of states that have similar things, that doesn't even necessarily mean they'll be the same in practice, right? Cause won't each state have it's like judicial history of like, well, in this case, you know, murdery murder face V v or whatever the people versus mr murder um it's like it was interpreted this way or something or you could have two states with the same language but wildly different or at least somewhat different outcomes right yeah

0:28:19 Jenessa: Yeah these are essentially combination of the rule that the judge will use to determine whether you're even allowed to raise the defense and or what the jury instruction is going to sound like so you then especially for when it comes to the judge and they have to say is this close enough? What are the procedures leading up to this? Yeah, that could vary wildly from one state to the next. Even if they had exactly like you're saying, if they Had exactly the same statutory language, the judicial history could make it completely different. Not, you know, wildly different, but it matters that you learn exactly how it works in that state. This is why you can't just cross state lines and start practicing. You really have to beef up your understanding.

0:29:09 Thomas: So like it's hard to know like what those words even mean until you start to say like well here's a a case where this person had this and you know it held up on appeal or something right oh

0:29:25 Jenessa: And is so hard to say like, what is the standard? There is no standard. Is the rule in this state. This is the role in that state. Like, tell you about how it works in New York. Work could pick any one state and focus on it but to tell you like how it works generally there is no right answer to that pretty no state has adopted this test and yet they felt the need to put it in my textbook which I find very funny I don't know what this textbook author was doing except that I I don' t know just find this very funny um this case brauner the judge basil on the one who actually wrote the durham case I

0:29:48 Thomas: That's weird it's like this is our personal favorite judge basil on what a name sounds

0:30:05 Jenessa: Know it's a good one it

0:30:06 Thomas: Like a star trek judge judge basilon what

0:30:08 Jenessa: Does so uh a concurrence where his test in durham was overturned he is of course needs to propose another alternative um person should should be found insane if at the time of his unlawful conduct his mental or emotional processes or behavioral controls were impaired to such an extent that he cannot justly be held responsible for his act it gets rid of mental disease or defect which is nice uh yeah no state has adopted the thing from this concurrence so no to that one um mr moore wrote up his uh example in a textbook that everybody totally should adopt one is a moral agent only if one is a rational agent and you have to be so irrational as to be non -responsible lacking a capacity for rational conduct I

0:31:03 Thomas: What you're just saying the same thing that we're trying to figure out yeah that's

0:31:08 Jenessa: Know yeah that's not helping anybody so no state adopted this in 1984 no you

0:31:13 Thomas: Not a mystery I think they should have one where it's It's like, if you get up there and you sing, won't be held responsible, you know, you could do that. And then that's an insanity defense.

0:31:22 Jenessa: Would think that would work um was at a conference that you would think I would be the only person in the room it was neuroscientists and lawyers and lot of people talking about issues with criminal defense and a man literally told a story about a person he was later able to try to defend on appeals but to represent himself and showed up in a toga and stood on the table and was like singing and the judge found him incompetent to stand trial so

0:31:54 Thomas: That feels like bullshit. You're trying to get out of jury duty at that point. You know, like

0:31:58 Jenessa: Are you gonna do uh this one's my favorite it's my I'll give you the last one of nobody has adopted this um morse said a defendant is not guilty by reason of insanity if at

0:32:08 Thomas: Fell in love in the first place. No, sorry. Okay.

0:32:11 Jenessa: The defendant was extremely crazy and the craziness affected the criminal behavior thanks be we're all crazy sometimes extremely that'll do it um a no for everybody um also found it interesting the you remember uh john hinkley jr who tried to kill ronald reagan yes

0:32:20 Thomas: Helps. Oh yeah. Thank you. Extremely crazy. Course. Yeah. Yeah. Yeah, we're trying to find somebody that he likes enough to, you know, get you know?

0:32:45 Jenessa: Um is the perfect example of the volitional thing the voluntary control of your behavior so belief that if he killed uh president uh foster would surely be impressed and fall in love with him um the one hand uh belief that that would affect the love of an actress doesn't make it moral or legal to kill a person. On the other hand, probably pretty insane, one might argue.

0:33:14 Thomas: If you're thinking that way, then, yeah, try

0:33:17 Jenessa: Has gone terribly wrong. Literally in response to his acquittal, again, he was committed for was not found like guilty because of insanity uh that bothered a lot of people so the american bar association came up with a new test that essentially got rid of the voluntary part um test is a person is not responsible for criminal conduct if at the time of such conduct and as a result of mental disease or defect effect that person was unable to appreciate the wrongfulness of such conduct so not going to get away with uh I couldn't control myself I didn't know what I was doing it has to be I couldn'T appreciate how wrong my behavior was with the idea that uh would not have gotten away with it somehow uh finally we do have one national test if you you are in federal court being accused of a crime where this could be relevant 18 usc section 20 the insanity defense is an affirmative defense and times of the commission of acts constituting the offense the defendant as a result of severe mental disease or defect was unable to appreciate the nature and quality quality the wrongfulness of his acts mental disease or defect does not otherwise constitute a defense so that's the one federal one but uh very rarely are you in federal court for a crime so it doesn't

0:34:38 Jenessa: Tend to matter very much so

0:34:40 Thomas: It's like, I cheated on my taxes because I just, I'm nuts, man. I'm just so crazy.

0:34:46 Jenessa: I I can't even every once in a while there's I mean there's not really like federal murder murder there's like federal I mean what are you going to shoot someone from the other side of the state line I don't even know how any I PINPOINT THAT AFFIRMATIVE DEFENSE THING THIS IS ALSO A BIG DEAL IT'S GOING TO VARY A TON FROM ONE STATE TO THE NEXT THIS IS REALLY WHERE MASSACHUSETTS IS QUITE DIFFERENT it's not in that definition it's in how it's applied so on how your state handles it uh there's a lot of defenses where you happens shifting the burden of proof you just raise your defense you know the classic defense is I didn't do it um could have an alibi, you could propose some alternative theory. You can just do that. You could just say that.

0:35:00 Thomas: Terrorism charges or whatever. Hmm.

0:35:37 Jenessa: Change anybody. You don't have to prove it. It's just you throw that out there and the state still has to meet their burden of proof beyond a reasonable doubt and you're just poking holes, right? Affirmative affirmative defense is different. So not always. Affirmative defenses will involve you admitting to the conduct. So it's like self -defense. Yeah, I did hurt the person or kill them, but.

0:36:04 Thomas: She was touching her face. Yeah. All right, I'm done. Done with the verb pipe reference. It's OK. I've done with the freshman. I.

0:36:13 Jenessa: There is going to be a bit of burden shifting there, depending how your state wants to handle it. So often there's going to Be some sort of gatekeeping on the front end where are you even allowed to do this? Um a judge could say like very often with self -defense you could have a judge say like you just walked into the room and shot a guy who doesn't know you like no I'm not gonna let you what it's

0:36:39 Thomas: That's always an interesting law thingy where there's a big trade off there, obviously, with constitutional rights to, you know, put on your own defense and due process kind of things. But there if it's such a clear boundary is this is my understanding of it. There's such a Clear Boundary where it's not wasting the jurors jury's time with this crap Like it's not even close. You know, that can't be self -defense. And the judge is just like, no. But I have to imagine they're a little hesitant to do that. But they the asshole prairie lane judge didn't let the guy the one guy who fired shots use a self -defense thing or a defense of others defense he didn't even let him argue it which seems way more questionable like just

0:36:42 Jenessa: It uh -huh yeah yeah oh yeah

0:37:18 Thomas: To ask you the question the way it should probably work is if it's a close call the judge has got to let you argue it to the jury right

0:37:26 Jenessa: Generally that's how we think of it from a due process perspective is almost similar to that like if you made a motion for judgment as a matter of law that that it's civil, but that no jury could look at these facts and come to that conclusion, that's an extremely high bar for one individual to say, I am declaring that no jury of any peers of yours could, they're being reasonable, they couldn't come to that conclusion. Conclusion I imagine circumstances where that's true where it is not reasonable to let you say oh defense of others I was defending my cousin who's on the other side of the planet like no okay that's not allowed but they should in general be quite conservative about not stopping you for a criminal defendant like yeah you should when in doubt let them do it is how we tend to think of it so of same thing here with insanity defenses some states it if you want to raise this you can't just say it what makes it an affirmative defense you're gonna have to before the judge put up psychiatrists or something and if you meet some minimum standard it'll never be like beyond a reasonable doubt because that's again a due process problem to put that much burden on a criminal defendant but to some minimum standards the judge is like good enough you're you'll be allowed to put this to the jury um times it could be if you put it to the jury you're gonna have to convince the the jury as the defendant you just admitted to a crime so you have to do the defense so it'll be something like preponderance of the evidence convince the jury that you were not guilty by reason of insanity whatever but if the prosecution wanted to stop you if they wanted to say don't even let them raise an insanity defense this is ridiculous ridiculous they might bear the burden of proof to try to stop you it all depends on how your state runs things um there's going to be gatekeeping with the judge um bears the burden of truth what massachusetts does that is weird is once the judge does the initial gatekeeping of yeah this is like reaches some bare minimum for you to go forward to the jury that's pretty normal. Now the state bears the burden of proof that beyond a reasonable doubt you don't meet the insanity criteria. Most places as an affirmative defense the defendant would have some burden of truth not beyond a reasonable doubt some burdenof proof that they do meet the criteria so flipping that on its head is interesting in massachusetts so than 20 states recognize the volitional impairment part the like I couldn't control myself most of them are uh have the uh didn't appreciate the wrongfulness or um didn' t understand the the wrongfulness, that kind of thing. Four have no insanity defense at all. So Montana, Idaho, and Utah.

0:40:46 Thomas: Are the places that are so boring you probably would go crazy the most so that's like not fair yeah

0:40:53 Jenessa: Have to be examples where like clear as day this crime, behavior happened and it's so obviously because of of a mental illness. And then what? You just get treated just like everybody else? I guess so. I don't know. I mean I hate our entire criminal justice system, so I'm not the right person to ask about like how to do this better. I'm just like, I don' t know, tear it all down. Not a criminal lawyer, but the one that I know because it's my state is New York. Do we do it? For a criminal defendant, the rule is going to be under our penal code 330 .2 or .20. I think it actually matters in New York, the .20 and not .2. We do the most annoying decimal stuff. We don't say insanity. We say not responsible by reason of mental disease or defect so mental disease or defect it's not the most woke of language but it's not insanity and either because I don't want us to start adopting medical language that requires a diagnosis like what's the word I don'T know um we don't say not guilty we say not responsible which know I find that interesting yeah

0:41:53 Thomas: It's not terrible I don't know what you're supposed to mental thing badness no yeah that's not a good idea yeah yeah I because again and it I guess some good it did in this instance but it is at least if people actually listened to opening arguments or had good you know sources on this I think it makes it a little easier in the cases where like this where it is horrifying like clancy I'm talking about obviously um that you're not saying they're not guilty. Like, yes, she did do it, you guilty is a little bit of a weird word, but still, like it's... I think it makes sense to me anyway, where it's like, yeah, you don't want to say she's not guilty, she did it, she's guilty of it, of doing the act, but was she responsible? And I actually think that is probably a step in the right direction, but I don't know.

0:42:50 Jenessa: I felt the same way like something more accurate about what we're trying to say here that that like the responsibility part is lacking um how does this happen um know there's always the exactly how the statute says it and then there's I talk to my uh who work in the criminal side of things they can tell me in practice what's actually going to happen so somebody shows up uh a defense attorney's office uh the public defender what usually if you end up uh picked up with a severe mental illness you're not like let me call my lawyer uh the public defender is gonna come find you um there's like a reason to think oh we should probably consider getting a psychiatrist involved we should consider uh defense not responsible by reason of um you would do is first go get a hold of somebody who is this qualified type of psychiatric examiner um so you can either be a qualified psychiatrist or a licensed psychologist of course is all defined in the law um go get one of those people and say hey what do you think and two options here obviously you can do a plea agreement for that or you go to trial and try to convince a jury of it um and you'll end up with battle of the experts hypothetically you could put prosecution to their burden to prove that I even did it and then at some point see the writing on the wall and like try to raise this realistically you're gonna lose all credibility if you try to be like I didn't do it and be like well

0:44:28 Jenessa: If I did it like no Um, realistically, you're going to have to make a decision early in the case for

0:44:28 Thomas: Or I was insane. Yeah, that makes sense. I mean that makes to me, I mean I know we do that with other stuff, which is, you know, we let people kind of argue in the alternative, but this does feel like something where it's like, if successfully argue you were, you to use the shorthand, insane enough to not be responsible. I feel like you don't get a free, like, well, let me pretend I didn't do it first. You know, that doesn't seem fair.

0:44:57 Jenessa: Realistically, your defense attorney, if they think the state's case is so weak, they're not even going to prove you did it. Well, then that's what you're gonna do, right?

0:45:06 Thomas: Yeah.

0:45:06 Jenessa: You're gonna be like, prove it. The writing is on the wall that like, they're gonna be able to prove you did it anyway, like, yeah, you want to go for this defense. So it's an affirmative defense in new york you're gonna have to prove that uh you meet the standard or hopefully you can just we have an entire statute that lays out the plea process for this so it's not just let's hash it out um some extent of that in the the sense that uh you're like okay let's do this you talk to the da the da can agree or they could hire their own expert who might agree or disagree um they agree then you know really if the defendant says this is how I feel about it and the doctor that the defendant's attorney hired says yeah and the da says okay technically the judge still has to approve it but like the judge is gonna approve it if everybody's on board um just in case something really shady is going on the ultimate decision rests with the judge at that point to go like I agree that this person has one of two things in new york it's either a dangerous mental disorder or mentally ill and it matters because it's going to determine where you end up um is so interesting about this is essentially what's going happen in you in new york is what I wish happened to every person found guilty of a crime and in this case you're not even technically being found guilty you're going to go to a place where you're to have your mental health issues be treated by a medical professional um dangerous mental disorder is the defendant currently suffers from a mental illness as defined in mental hygiene law uh that because of the condition they constitute a physical danger to themselves or others mentally ill they're suffering from a mental illness which uh and treatment as a patient in the inpatient services of a psychiatric center is essential to their welfare. Their judgment is so impaired, they're unable to understand the need for such care and treatment. This language is nearly identical to involuntary commitment unrelated to criminal issues. So is this all laid out like this? Because you almost cannot raise this defense and then just go home. Is hypothetically possible that you could could be found not to have a dangerous mental disorder or to be mentally ill but if that was like before trial without the da agreeing to any plea you're going to trial and you can't raise the defense so that's like not what you were hoping for right um that point let's say you are either found not responsible by reason of or um you do the plea process process. At first, they have to have a hearing after 30 days. Then they have a hearing after a year. And then after that, every two years. Biggest difference between this and regular involuntary commitment is with involuntary commitment, kind of at any time, you can be like, I would like a hearing, I'd like to go home, I don't have to be here, if I don't want to be here. Your doctor can be, like, they don't have to here, they can go home. If If as a result of this criminal process of a trial or the plea, it's going to be every two years you're going to go up for potentially getting out. And what I've been told is realistically, if it was a violent crime, it is not happening. Just in. So on the one hand, this perception that you're gonna plead insanity and go home, like, no. no

0:48:55 Thomas: It's going to be like, oh, you just needed a Snickers. Like, ah, I was those commercials where I was just a murderer. And then someone's like thomas you hungry need this and then I like turned back into me and I should go home like after I killed people that's not how it works yeah and

0:49:10 Jenessa: Really it's in rare rare cases that could hypothetically happen it's almost certainly not going to happen um could have somebody with like lower level offenses like they were found dangerously ill and then they got downgraded to just mental illness You can slowly move from a higher security facility to lower security and then move to into the general public with a care plan where the care facility has to check in on you and then eventually graduate to totally on your own. But that can take years and years and you could get recommitted again or it might never happen for violent offenses like it's kind of just not happening. So on the one hand uh don't go into the terrible prison system that is like violent and scary and produces more trauma and does not treat your mental illness which like realistically if you didn't have a mental illness when you went to jail you do now um the other hand like compared to a sentence where it's like oh you were sentenced to four years you're done um serving much on average, much longer, or maybe not getting out at all. So do you want to go to the, the nice, you know, hopefully nice hospital where the people who are trained to treat your mental illness are going to treat you and stay a lot longer, maybe forever? Or do you wants to go, to the terrible torture murder prison? No good answers, uh, it just sucks. Um, hate our system.

0:50:44 Thomas: That's a good place to wrap it just sucks and you hate our system yeah

0:50:50 Jenessa: Do. I do. It can work out if it's, especially for the lower level stuff, to slowly graduate people, as written in the statute, to slowly undergraduate people back out into society who were found not responsible for what their actions were but need help. It CAN be good and work. Needs a lot of help. Somebody

0:51:13 Thomas: Well that was really interesting I appreciate a deep dive into, um, pleading insanity and, accurately, not responsible by mental defect. It's not, what's, what is the best language for this?

0:51:28 Jenessa: Tell me mental disease or defect is not responsible because I got I got nothing I don't know

0:51:30 Thomas: Not responsible cause brain, ow. She was touching her face. That's what it is.

0:51:48 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:52:21 Thomas: Just haven't been flossing my brain enough scrub

0:52:24 Jenessa: Cat is trying to get in the fucking door I

0:52:29 Thomas: Sound excited, tell your face,