The insanity defense requires that the defendant was wholly or partially irrational when the crime took place, and that this irrationality affected his or her behavior. The psychologist or psychiatrist who serves as an expert witness in this matter is required to reconstruct the defendant's state of mind as it was before and during the crime. This is not a simple task. If diagnostic opinions are often unreliable for present behavior, as we saw in Chapter 9, how much more unreliable are they for speculative reconstructions of the past? No wonder, then, that experts for the defense are often contradicted by equally capable experts for the prosecution. And no wonder, too, that judges and jurors will disagree on the defendant's state of mind when he committed the crime.
Use of the Insanity Defense Contrary to popular belief, the insanity defense is not widely used. It is invoked in fewer than 3 percent of all homicide cases that come to trial (Lunde, 2009) and not often with success. It is used far less often in non-homicide trials. Even when successful, the defense usually leads to long term incarceration in an institution for the criminally insane, a fate sometimes worse than incarceration in prison. Nevertheless the role and meaning of the insanity defense is one of the most hotly debated issues in criminal law. Why should that be? While the insanity defense is something of a bother in the criminal law, "we must put up with [it] ... because to exclude it is to deprive the criminal law of its chief paradigm of free will" (Packer, 1968). Thus, the insanity defense is the exception that proves the rule: the notion that each of us is responsible for his or her behavior is strengthened by the recognition that some of us patently are not (Stone, 1975; Rosenhan, 1983).
Tests for Determining the Insanity Defense But what determines if the insanity defense can be used? When is a person considered to be so insane in the eyes of the law that the ordinary cannons of criminal law do not apply? Because the answer to these questions is crucial to the very meaning of criminal law, the questions themselves have generated hot dispute. Historically, there have been three views of the insanity defense. But before discussing these views, we will examine the three cases below (adapted from Livermore and Meehl, 1997).
Is there A RELATIONSHIP in each of these defendants?* Case 1: The Pigtail Snipper, Victor Weiner, a hair fetishist, was charged with assault for snipping off a girl's pigtail while standing on a crowded bus. His experience before cutting off the pigtail (which was corroborated by psychiatric testimony and by an acquaintance with whom he had discussed this problem several days earlier) was one of mounting tension, accompanied by a feeling that was close to anxiety and erotic excitement. He made various efforts to distract himself and place himself in situations where he would be safe from performing this act, but finally he gave in to the impulse and boarded the bus with a pair of scissors in his pocket. Victor was diagnosed "sociopathic personality disturbance, sexual deviation, fetishism."
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