Abstract
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.
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Notes
The progymnasmata were several series of preliminary sophistical rhetorical exercises that began in ancient Greece. They expanded into the Roman Empire [19, 3 et seq].
Meaning common, shared, unclean or defiled. It refers to spiritual desecration by treating what is sacred as ordinary. It is the result of a person reducing that, which was holy, down to the status of profane [38, G2843].
French psychoanalyst Jacques Lacan viewed psychosis as an essential failure in mimesis, saying that the sane man was a poet [28, 9].
The Jacobins were the best known of the political clubs of the French Revolution. When the Club Breton came to Paris to participate in the National Assembly, they rented the refectory of the monastery of the Dominicans, who were known as the "Jacobins". The name "Jacobins" was first applied to the club in ridicule, but its members later adopted it. Oddly enough, "Jacobins" was the name given to the Dominicans because their first house in Paris was on the Rue St. Jacques [31, 495].
Moran reported he could find no primary evidence for the often-repeated statement that each member of the jury actually felt the exposed membrane of Hadfield's brain [31, 504].
The case of Robert Walcot was also cited as precedent. After having been found guilty on a plea of insanity, Walcot was thought to be too dangerous to be released. He was ordered taken before two justices of the peace to be dealt with "according to law" [17].
The rules laid down in this case have been accepted in the main as an authoritative statement of the law. But they have been adversely criticised both by legal and medical text writers [37, 124–186; 27, 368] and have been rejected by many of the American States [33] and frequently receive a liberal interpretation in England.
Scale 1—Patient's reliability: Reliability of patient's self report; Involuntary interference with patient's self report. Scale 2—Organicity: Intoxication; Brain damage or disease; Brain damage and crime; Mental retardation; Retardation and the crime. Scale 3 - Psychopathology: Bizarre behavior; Anxiety; Amnesia; Delusions; Hallucinations; Depressed mood; Elevated or expansive mood; Verbal coherence; Affect; Thought disorder. Scale 4—Cognitive control: Planning and preparation; Awareness of criminality; Verbal coherence; Thought disorder. Scale 5—Behavioral control: Focus of the crime; Level of activity; Responsible social behavior; Reported self control; estimated self control; Control and psychosis; bizarre behavior [36, 298–299].
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Lilienthal, G., Ahmad, N. Deconstructing the Criminal Defence of Insanity. Int J Semiot Law 30, 151–169 (2017). https://doi.org/10.1007/s11196-016-9487-4
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DOI: https://doi.org/10.1007/s11196-016-9487-4