Counseling Chapter 5 Five Criminal Responsibility And The Capacity Commit Crime Learning Objectives After

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CHAPTER FIVE

CRIMINAL RESPONSIBILITY AND THE CAPACITY TO

COMMIT A CRIME

Learning Objectives

After reading this chapter, students will be able to:

1. Learn when a child can be held responsible for violation of a criminal law.

3. List the two prongs of the M’Naghten Rule.

5. Describe the difference between the M’Naghten Rule and the “substantial capacity” test.

7. Distinguish the “not guilty by reason of insanity” verdict from the verdict of “guilty but

mentally ill” verdict.

9. Explain why a defendant of questionable competency should not be tried for a criminal

violation.

Lesson Plan

Correlated to PowerPoints

I. Ancient concepts of criminal responsibility

Learning Objective 1: Explain when a child can be held responsible for violation of a criminal

law.

Learning Objective 2: Distinguish between the method of imposing criminal liability upon a

child under age seven, and a child of age fourteen.

A. Past determination of criminal responsibility: Trial by ordeal and by battle

1. Torture imposed with hope of miraculous deliverance

2. Accused is guilty if he or she comes in second they lose the fight

B. Today criminal responsibility and capacity are generally seen as potential excuses

for the commission of acts that would ordinarily be criminal, as opposed to

defenses to criminal liability.

C. Preponderance of the Evidence: Level of proof that generally inclines a person

to believe one side of an issue than another.

2. Most states require that defense proof insanity by this level of proof.

3. The Supreme Court held in Atkins v. Virginia, that a mentally retarded

person could not be subject to the death penalty.

D. Presumptions about sanity

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2. In the case of adults, in most states a defense of insanity requires the

defendant to prove insanity by a preponderance of the evidence.

3. In only a very few states the prosecution must prove the presence of capacity

or sanity, usually beyond a reasonable doubt. While many state statutes only

require proof by a preponderance of the evidence, others require proof by

“clear and convincing” evidence.

E. Infancy and Criminal Responsibility

Class Discussion/Activity

Discuss the methods used to impose criminal liability on children under

the age of seven and between ages seven and fourteen. Should the methods

be different?

1. Under the civil law, an infant (child) is a person who has not yet reached the

3. Many states have codified some version of the common law rules on

children’s criminal capacity, though they vary on the age limits adopted.

4. People over a certain age—in most states, around fourteen years of age—are

5. A rebuttable presumption exists under most state statutes and the common law

that children between the minimum age (usually around seven) and the

maximum age (usually around fourteen) are presumed to be without criminal

capacity to commit a crime.

a. This presumption may be overcome by the presentation of evidence

by the state showing that the child has the mental capacity and the

ability to formulate the necessary criminal intent.

b. The U.S. courts look to a variety of factors when the capacity

presumption is at issue, and they usually hold that the younger the

child, the stronger must be the evidence of mental capacity.

F. The Juvenile Court System

1. All states have enacted statutes governing the jurisdiction of children’s

3. States vary on the maximum age for the jurisdiction of juvenile courts but

usually set a limit around eighteen years of age.

4. State statutes also generally provide that juvenile courts may waive

the juvenile court.

5. Waiver

II. The Insanity Defense

Media Tool

Judge Accepts James Holmes’ Insanity Plea

http://video.foxnews.com/v/2434176103001/judge-accepts-james-holmes-

insanity-plea/

o Provides a video discussing the legal impacts of an insanity plea.

o Discussion: What are the effects of an insanity plea according to

the video? Do you agree with the statements in the video? Why

are so few insanity pleas successful? What factors are important

in the Colorado statute?

A. Criminal Incident: Foucha v. Louisiana: the State must establish insanity and

dangerousness by clear and convincing evidence in order to confine an insane

convict beyond his criminal sentence, when the basis for his original confinement

no longer exists.

B. Insanity Tests

o M’Naghten rule: cognitive and moral incapacity

o “substantial capacity”: volitional incapacity

o “product” rule: product of mental illness

What If Scenario

A recent murder trial has resulted in a child murderer being found not guilty by reason of

insanity. The resulting public outcry has motivated the passage of legislation eliminating the

insanity defense in your state. Examine similar changes in other states to answer the following

questions. What impact will this change have on the murder rate in your state? What impact

will this change have on incarceration rates in your state? How will this change affect murder

trials in your state?

C. The insanity defense is most often used in murder cases and for other serious

felony charges.

D. Not an easy way out for criminal defendants.

E. Only about 2 percent of defendants charged with serious crimes use the insanity

plea.

F. In most jurisdictions the burden is on the defendant to prove the insanity defense,

usually by a preponderance of the evidence.

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What If Scenario

Your state legislature has decided to change the law regarding the insanity defense. Previously,

the burden was on the defendant to prove insanity. The new law requires the prosecutor to

prove sanity. How would this affect prosecutions? What impact would it have on trials in your

state? Would it have an effect on plea bargains?

G. Insanity at the Time of the Criminal Incident

1. If a defendant is found insane at the time the crime occurred, a judgment of

not guilty by reason of insanity is then entered by the court, and the defendant

may never again be tried for that offense.

a. Almost always committed to a mental institution

b. Foucha v. Louisiana

c. The holding in Foucha, where the State conceded the defendant was

no longer insane, should be contrasted to the burden of proof

required for the release of a person committed after a finding of not

guilty by reason of insanity.

III. Tests used to determine insanity – Assignment Number 1, 2, 3, 4

Learning Objective 3: List the two prongs of the M’Naghten Rule.

Learning Objective 4: Describe the difference between the M’Naghten Rule and the

“substantial capacity” test.

Learning Objective 5: Identify the extent, if any, to which the voluntary use of drugs or alcohol

may be used as an insanity defense or diminished capacity defense.

Class Discussion/Activity

What are the different tests for determining insanity? Which is the “best”

test? Why?

A. If a state permits a defense to criminal charges based on insanity, it remains to be

determined how the insanity decision is made.

1. Clark v. Arizona, 126 S. Ct. 2709 (2006)

B. The M’Naghten case and the “Right and Wrong” Test

1. An insanity test that claims that defendants are not legally responsible for their

acts if, due to a defect of the mind, at the time of the crime they were unable

to understand the difference between right and wrong.

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(the jury’s) satisfaction; and that to establish a defense on the ground

of insanity, it must be clearly proved.

C. The “Product-of-Mental-Illness” Test and “Irresistible Impulse”

1. Many courts critical of the M’Naghten rule

a. Narrow and restricted application

2. In response to this criticism, a few states adopted a form of “volitional

4. Insanity Defense Reform Act, 18 U.S.C. § 17

D. The Model Penal Code “Substantial Capacity” Test

1. A test to determine criminal responsibility based on whether the defendant

3. Idaho, Montana, Kansas, Nevada, and Utah have abolished the insanity

defense.

E. The plea and verdict of guilty but mentally ill

Media Tool

Woman Accused Of Killing Daughter In Murder-Suicide Attempt

http://www.ksl.com/?nid=148&sid=19674412

o Provides a video and article about a woman who attempted to kill

herself and her daughter and pled guilty but mentally ill when

charged with the crime.

o Discussion: What are the important factors regarding this case?

What burden does the defendant have in pleading guilty but

mentally ill? Is this an appropriate defense for the case?

1. A defendant may be found guilty but mentally ill if all the following are found

2. In most states, the statute authorizing a GBMI verdict allocates the burden of

3. Opponents of the guilty but mentally ill verdict argue that it is nothing but a

nice name for “guilty and going to prison.”

4. Designed to protect the public

IV. Mental conditions that do not satisfy the insanity defense

A. Many mental conditions do not rise to the level of “insanity” and thus do not

provide a defense to criminal conduct.

2. The voluntary use of drugs or alcohol does not qualify as a mental disease nor

does compulsive gambling.

V. The defense of diminished capacity – Assignment Number 3

Learning Objective 6: Distinguish the “not guilty by reason of insanity” verdict from the

verdict of “guilty but mentally ill” verdict.

A. The diminished capacity defense applies when a defendant has introduced evidence

of mental incapacity that does not satisfy the requirement for a finding of insanity

under the relevant statute.

B. Whereas following a successful legal insanity defense the court retains control of the

defendant and may order involuntary commitment, a successful diminished capacity

defense results in a complete acquittal of the crime charged.

VI. The requirement of competency to stand trial – Assignment Number 3

Learning Objective 7: List factors that may present issues of a criminal defendant’s

competency to be tried on criminal charges.

Learning Objective 8: Explain why a defendant of questionable competency should not be tried

for a criminal violation.

What If Scenario

In a recent case the Supreme Court has determined that it is no longer necessary to determine

competency prior to trying a defendant. How would trials change as a result? What impact

would such a change have on the civil rights of defendants? Why is this issue important? Who

would be impacted by this change?

Class Discussion/Activity

Why is it important that a defendant be “competent” to stand trial? Should

the government be allowed to force a defendant to take medication to

make him/her competent to stand trial? What are the rules in your state for

determining competency?

A. Defendants must have the ability to cooperate with their attorneys and the ability to

understand the charges and proceedings against them.

1. The standard of proof on defendants to prove incompetency is that of the

“preponderance of the evidence.”

2. A criminal defendant found to be incompetent might remain so for a short

time, or indefinitely.

VII. The criminal liability of corporations – Assignment Number 5

Class Discussion/Activity

What is the purpose of making corporations liable for the actions of their

employees? What kinds of crimes are appropriate to hold corporations

criminally liable? Are there any crimes for which corporations should

not/cannot be held liable? What crimes?

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What If Scenario

Following a great deal of debate in the media the Supreme Court has ruled that corporations

are not people and are thus no longer criminally liable for the actions of their employees. What

effects would be seen as a result of such a ruling? Consider the impacts on white collar crime,

organized crime, and environmental crime.

A. The rules for making corporations liable for actions taken by officers, directors, or

employees

B. Corporations can be vicariously criminally liable for actions of their agents if the

offense is minor, a duty is specifically assigned to a corporation, a statute explicitly

creates vicarious criminal liability, or the person committing the crime is acting in the

interest of the corporation and is a high managerial agent.

Media Tool

Corporate Vicarious Criminal Liability

http://www.youtube.com/watch?v=MUtYW5d9_mw

o Provides a brief explanation of corporate vicarious criminal

liability and discusses the problems and the alternative of

corporate compliance programs.

o Discussion: After watching the video, which is better…to

prosecute corporations for the criminal actions of their employees

or to allow corporate compliance programs? What factors should

be considered in determining which is appropriate in a situation?

C. Corporate liability for environmental crimes

2. These statutes usually are aimed at some harm that an environmental interest

suffered based on actions of the corporation.

3. Attaching criminal liability for those actions can be unclear.

Lecture Notes

The defenses of insanity, diminished capacity, and age are considered legitimate excuses for

criminal behavior that reduce or entirely eliminate the defendant’s blameworthiness. The

criminal law is designed to punish only those who are truly blameworthy for their conduct.

involve strict liability. Often people will comment that a person must have been crazy to have

committed such a horrible, despicable act, but being crazy is not the same as being insane.

This might be a good time to introduce students to the civil commitment process in their state,

since a successful insanity defense generally results in such a commitment. Involuntary civil

commitment only occurs according to a strict set of procedures with the person being protected

defendant’s condition. In many states, however, expert testimony isn’t required on the insanity

issue. Testimony from individuals who can describe the defendant’s behavior and his or her

statements before, during, and after the crime was committed, can be used to try to persuade the

fact finder as to the defendant’s mental status. Just how much evidence is required on the

insanity defense will differ from jurisdiction to jurisdiction. Some states use the reasonable

doubt standard; others use the preponderance of the evidence standard. Who carries the

burden—the state to prove sanity or the defendant to prove insanity—also differs from

jurisdiction to jurisdiction.

Key Terms

trial by ordeal — A test used to determine criminal responsibility in ancient England involving

subjecting the individual to a torturous ordeal. These ordeals were essentially appeals to God;

surviving the ordeal was viewed as God’s judgment of innocence. (p. 112)

preponderance of the evidence — The greater weight of the evidence, though not necessarily the

amount needed to remove every reasonable doubt. It is proof sufficient to incline a reasonable person

toward one side of an issue rather than the other. (p. 113)

that age is eighteen, nineteen, twenty, or twenty-one, as determined by the law of each jurisdiction.

(p. 113)

insanity tests — Tests to determine legal and moral liability. (p. 116)

“right and wrong” test — An insanity test that claims that defendants are not legally responsible

for their acts if, due to a defect of the mind, at the time of the crime they were unable to understand

the difference between right and wrong. (p. 118)

M’Naghten rule — The insanity defense rule requiring proof that because of mental disease or

defect defendants did not know the scope or character of their actions. (p. 118)

“substantial capacity” test — A test to determine criminal responsibility based on whether the

defendant could (1) distinguish between right and wrong or (2) conform his or her conduct to the

requirements of law. (p. 120)

guilty but mentally ill — A defendant may be found guilty but mentally ill if all the following are

found beyond a reasonable doubt: (1) defendant is guilty of offense; (2) defendant was mentally ill at

time offense was committed; (3) defendant was not legally insane at time offense was committed. (p.

121)

diminished capacity defense — A defense for criminal responsibility based on the fact that because

of mental or emotional conditions, the defendant did not possess the required mens rea for

conviction of crime charged. (p. 125)

competency to stand trial — Defendants must have the ability to cooperate with their attorneys and

the ability to understand the charges and proceedings against them. (p. 128)

criminal liability of corporations — The rules for making corporations liable for actions taken by

officers, directors, or employees. Corporations can be vicariously criminally liable for actions of

their agents if the offense is minor, a duty is specifically assigned to a corporation, a statute

explicitly creates vicarious criminal liability, or the person committing the crime is acting in the

interest of the corporation and is a high managerial agent. (p. 130)

Assignments

1. Compare and contrast the Durham and substantial capacity insanity tests with the

M’Naghten test. Which test makes it more difficult for a defendant to prove in court?

2. Students should compare their state’s insanity laws with the M’Naghten test and

substantial capacity test found in the Model Penal Code. What is the burden of proof for

the defense and who carries the burden? Should decisions about whether a defendant is

not guilty by reason of insanity be made by a jury, a judge, or a panel of experts? [LO 3,

3. Students can break up into groups. Have each group research a current insanity defense

from their local news media. Have each group prepare a PowerPoint presentation

4. In groups or as an individual assignment have students examine a state with involuntary

5. In groups or individually, have students brief the cases in the chapter related to the

Case Analysis and Writing Exercises

1. Can a defendant prevent a court from entering a verdict of “Guilty but Mentally Ill”

(GBMI)? Assume a defendant is charged with attempted murder. While there is

2. Many states bifurcate the guilt/insanity portions of a trial, so that a jury first must

determine beyond a reasonable doubt that a defendant is guilty of committing the

crime charged. If a guilty verdict is returned, the second phase begins. In some states

the burden remains on the state to prove sanity, but more commonly it becomes the

defendant’s duty to prove insanity. In those states, must the defendant always

introduce medical evidence of mental illness? Or can lay testimony be sufficient?

N.W.2d 42 (Wis. 2014). The defendant testified he could not remember the criminal

incident (attack on prison guard) because he was unconscious, and thus in his

unconscious state he lacked the substantial capacity to appreciate the wrongfulness of

his conduct. Why did the Wisconsin Supreme Court find this evidence insufficient?

3. When the Pennsylvania legislature passed its Juvenile Act, setting procedures for

juvenile courts, it abolished the infancy defense. Does that mean there is no infancy

defense in adult courts? That was the position of the state in Com. v. Martz, 118 A.3d

1175 (Pa. Super. 2015). Was it correct? What did the state contend based on the age

4. Assume a defendant is convicted of murder under a state felony-murder statute. (See

Chapter 10) The underlying crimes were rape and burglary. The defendant contended

he was “high” on Quaaludes and alcohol and had no memory of committing the

crime. Assuming the state had a “diminished capacity” defense available at the time

the crime was committed (California subsequently abolished the defense), what mens