THE DARK KNIGHT RISES: AN EXAMINATION OF THE INSANITY PLEA AND JAMES HOLMES CASE
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Vol. 6, 2013 154
LSD Journal
THE DARK KNIGHT RISES:
AN EXAMINATION OF THE
INSANITY PLEA AND JAMES
HOLMES CASE
Kathleen A. Bantley, Esq.
Susan V. Koski, LP.D
I. INTRODUCTION
On July 20, 2012, the United States
experienced one of the most catastrophic shootings
in its history. 1 James Holmes attended a midnight
screening of The Dark Knight Rises, a movie in the
Batman series. 2 During the film, he stunned the
audience with tear gas and fired shots from an
assault rifle, a shotgun, and a Glock handgun. 3
When he was done with his rampage, twelve people
1
Michael Kelly, Police Audi Suggests there Were Multiple Shooters
in the ‘Dark Knight’ Massacre, BUSINESS INSIDER, Aug. 7, 2012,
available at http://www.businessinsider.com/james-holmes-
conspiracy-theories-2012-8.
2
Id.
3
James Dao, Aurora Gunman’s Arsenal: Shotgun, Semiautomatic
Rifle and, at the End, a Pistol, N.Y. TIMES, July 23, 2012 at A12.
Bantley, KoskiVol. 6, 2013 155
LSD Journal
were dead and seventy people injured. 4 He is
charged with 166 counts of murder, attempted
murder, and other crimes, and, if convicted, he
could face the death penalty. 5
On June 4th Holmes pled “Not Guilty By
Reason of Insanity” (NGRI). 6 In Colorado, where
the shooting occured, if a person pleads insanity,
then the prosecution has the burden of proving the
offender’s sanity. 7 If the attack had occurred in
California, however, then the defendant would have
this burden.8 Therefore, the responsibility of
proving sanity or insanity differs among the states.9
In addition, the basic standards for proving insanity
4
Electa Draper, James Holmes' Mental Health Records Given to
Prosecutors in Aurora Theater Shooting Case, Oct. 8, 2013, THE
DENVER POST, available at http://www.news-herald.com/general-
news/20131008/james-holmes-mental-health-records-given-to-
prosecutors-in-aurora-theater-shooting-case.
5
Id.
6
Tim Skillern, Colorado Judge Accepts James Holmes’ Insanity Plea
in Theater Shootings, THE LOOKOUT, YAHOO NEWS, June 4, 2013,
available at http://www. news.yahoo.com/blogs/lookout/prosecutors-
could-soon-look-james-holmes-notebook-094230715.htm
7
C.R.S. 16-8-105.5 (2) (2013).
8
Cal. Evid. Code §522.
9
G.G.L. R.S. (CRS) 16-8-101.5(a) & (b) and California Penal Code §
1026(a).
Bantley, KoskiVol. 6, 2013 156
LSD Journal
10
differ among the states. For example, Colorado
uses a combination of a modified M’Naghten rule
with the “Irresistible Impulse” test, while California
uses just the M’Naghten rule. 11 Members of the
public may have difficulty understanding these
differences. 12 Since states’ definitions vary, a court
may deem a person insane and acquitted in one
state, but find the same person guilty and sentenced
in another state for the same act.
Undoubtedly, the insanity plea is one of the
most controversial defenses available in American
criminal jurisprudence.13 The defense and others
like it were created to avoid punishing defendants
who are not blameworthy. 14 These defenses are
commonly referred to as “excuse” defenses. 15
Although rarely used, and seldom ever used
10
The Insanity Defense Among the States, available at
http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-
among-the-states.html (last visited Oct. 15, 2013).
11
Id.
12
Wallace A. MacBain, THE INSANITY DEFENSE: CONCEPTUAL
CONFUSION AND THE EROSION OF FAIRNESS, 67 MARQ. L. Rev. 1, 10
(1983).
13
David C. Brody et al., CRIMINAL LAW Ch. 5 (Aspen Publishers, In.
2001).
14
Id.
15
Id.
Bantley, KoskiVol. 6, 2013 157
LSD Journal
successfully, the insanity defense has gained much
public attention.16 Some of the most notorious
defendants who have successfully used the insanity
plea include John Hinckley Jr., Lorena Bobbitt, and
Andrea Yates. 17 Now, Holmes seeks to use the
insanity defense. 18
Public opinion about the insanity defense
has been controversial. Many people disfavor the
insanity plea because they believe that it allows a
guilty person to “beat the rap” 19 or “get off easy”. 20
Members of the public misunderstand the insanity
defense because they are usually exposed to only
high profile cases that receive intense media
16
Philip Resnick, THE 2006 FRIEDMAN & GILBERT CRIMINAL
JUSTICE FORUM: THE ANDREA YATES CASE: INSANITY ON
TRIAL, 55 CLEV. ST. L. REV. 147, 154 (2007).
17
WEST ENCYCLOPEDIA OF AMERICAN LAW (2005),
http://www.encyclopedia.com/topic/Insanity_Defense.aspx. See also
Andrea Yates, Fast Facts, CNN LIBRARY (2013), available at
http://www.cnn.com/2013/03/25/us/andrea-yates-fast-facts/.
18
Supra note 6.
19
Valerie P. Hans & Dan Slater, John Hinckley, Jr. and the Insanity
Defense: The Public’s Verdict, 47 PUB. OPINION Q. 202, 207 (1983).
20
Anglea L. Blooechl et al., An empirical investigation of insanity
defense attitudes: Explaining factors related to bias, 30 INT’L J.L. &
PSYCHIATRY 153-161(2007) (citing R. T. Salekin & R. Rogers,
Treating Patients Found Not Guilty By Reason of Insanity, in J.B.
Ashford, B.D. Sales, & W. H. Reid (Eds.) Treating adult and juvenile
offenders with special needs (171 -196), Washington D.C.: American
Psychological Association).
Bantley, KoskiVol. 6, 2013 158
LSD Journal
coverage. 21 It will be interesting to see the public’s
reaction to James Holmes’s potentially successful
use of an insanity defense.
First, this article explains differing standards
for insanity pleas across the country. Part II
provides a brief discussion of the insanity plea’s
history and application across the United States.
Part III discusses Colorado’s insanity statute and its
possible application in Holmes’ case. Part IV
examines challenges to the insanity defense and
public perceptions. Finally, Part V provides
recommendations for the insanity plea’s use to
assist the public in understanding its application.
II. HISTORY AND APPLICATION OF THE
INSANITY PLEA
The insanity plea is one of a criminal
defendant’s most controversial defenses. 22 The term
“insanity” is a legal term used by many jurisdictions
21
Supra note 16.
22
John P. Martin, The Insanity Defense: A Closer Look,
WASHINGTON POST.COM, Feb. 27, 1998, available at
http://www.washingtonpost.com/wp-
srv/local/longterm/aron/qa227.htm.
Bantley, KoskiVol. 6, 2013 159
LSD Journal
to “excuse” a crime.23 States may decide the
required criteria to determine if an individual was
“insane” at the time he or she committed the
criminal act.24 Criteria vary from state to state,
partly explaining why people have difficulty
understanding the meaning of “insanity.” 25
For a court to find a defendent guilty of the
commission of a crime, he or she must meet certain
key elements. Some of the elements include: an act;
a requisite mental state, known as the mens rea;
concurrence between the act and mental state; and a
harm. 26 The law recognizes that, in certain
situations, an offender may have an incapacity to
commit a crime. 27 These situations are often noted
as “excuses.” 28 If a defendant successfully uses an
excuse defense, such as insanity or infancy, then the
court may excuse him or her from criminal
23
Wallace A. MacBain, The Insanity Defense: Conceptual
Confusion and the Erosion of Fairness, 67 MARQ. L. REV. 1, 10
(1983).
24
MacBain, The Insanity Defense: Conceptual Confusion and the
Erosion of Fairness, 67 MARQ. L. REV. 1, 10 (1983).
25
Id.
26
Supra note 13 at CH. 3.
27
John M. Scheb & John M. Scheb, II. CRIMINAL LAW, 4th ed.
(Belmont, CA: Thomas Higher Education, CH. 14, 314 (2006).
28
BLACK’S LAW DICTIONARY 566 (6th ed., 1990).
Bantley, KoskiVol. 6, 2013 160
LSD Journal
liability. 29 For example, under common law, an
offender under the age of seven is too young to
understand and appreciate his or her actions. 30 This
doctrine is known as the “infancy defense.” 31 An
example is a five-year-old taking a gun and
shooting his best friend while playing “cops and
robber”. 32 Therefore, the court cannot hold the
defendant responsible for his or her behavior. 33 If
the child is between the ages of seven and fourteen,
the presumption of incapacity is rebuttable. 34 Once
a person is over the age of fourteen, courts presume
that the person understands his or her actions and
can be criminally prosecuted for these actions. 35
The insanity defense is similar to the infancy
defense because both defenses determine if the
offender appreciated and/or understood his actions
29
AM JUR 2D CRIMINAL LAW § 47. See also 29 AM. JUR. 2D EVIDENCE
§ 252
30
29 AM. JUR. 2D EVIDENCE § 252.
31
John M. Scheb & John M. Scheb, II. CRIMINAL LAW, 4th ed.
(Belmont, CA: Thomas Higher Education, CH. 14, 315 (2006).
32
See generally Id.
33
Id.
34
Id.
35
Wallace A. MacBain, The Insanity Defense: Conceptual
Confusion and the Erosion of Fairness, 67 MARQ. L. REV. 1, 10
(1983).
Bantley, KoskiVol. 6, 2013 161
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at the time of the crime’s commission. 36 Many
jurisdictions define insanity as
an offender committing an act when
he or she did not appreciate the
nature or quality of his actions
because of a mental disease or
defect, or when he or she did not
understand what he or she was doing
was wrong due to a mental disease or
defect.37
Scholars often refer to this test as the right/wrong
test or the M’Naghten rule. 38
The M’Naghten rule comes from the 1843
trial of Daniel M’Naghten in England.39 M’Naghten
attempted to assassinate the British Prime Minister,
Sir Robert Peel. 40 M’Naghten alleged that he
36
BLACK’S LAW DICTIONARY 566 (6th ed., 1990).
37
Rollin M. Perkins and Ronald N. Boyce, CRIMINAL LAW, 3rd ed.
(Mineola, NY: Foundation Press, 958-959 (1982).
38
Id.
39
Ira Mickenberg, A Pleasant Surprise: The Guilty but Mentally Ill
Verdict has Both Successfully Preserved the Traditional Role of the
Insanity Defense, 55 U. CIN. L. REV. 943, 943-47 (1987) (citing
Kaufman, The Insanity Plea on Trial, N.Y. TIMES, Aug. 8, 1982, § 6
(Magazine), at 17; The Times (London), Mar. 6, 1843, at 5, col. 3.;
Block, The Semantics of Insanity, 36 OKLA. L. REV. 561, 563
(1983); RAY, A TREATISE ON THE MEDICAL
JURISPRUDENCE OF INSANITY (W. Overholser ed. 1962)
(1838); Daniel M'Naghten's Case, 8 ENG. REP. 718, 719 (1843).
40
Id.
Bantley, KoskiVol. 6, 2013 162
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suffered from delusions of persecution when he
attempted to assassinate the Prime Minister. 41 Here,
for the first time, a defendant relied upon
psychiatric evidence to establish a defense based on
his mental illness. 42 The court accepted
M’Naghten’s insanity defense and acquitted him.43
The court found that:
[T]o establish a [sic] defence on the
grounds of insanity, it must be
clearly proved that at the time of
committing 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 as not to
know what he was doing was
wrong. 44
In more recent history, there are other
notable cases where the insanity defense was
successfully used. Three notable cases over the last
41
Id.
42
Id.
43
Id.
44
Id. (citing Daniel M’Naghten’s Case, 8 ENG. REP. 718, 719
(1843)).
Bantley, KoskiVol. 6, 2013 163
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30 plus years are the cases involving John Hinckley,
Lorena Bobbitt, and Andrea Yates. 45
In 1981, John Hinckley attempted to
assassinate then President Ronald Reagan in an
attempt to gain respect and love from actor Jodie
Foster. 46 At trial, Hinckley raised the insanity
defense and the jury found him not guilty by reason
of insanity. 47 In 1994, Lorena Bobbitt was found
not guilty by reason of temporary insanity when she
cut off her husband’s penis. 48 Lastly, in 2006,
45
John P. Martin, The Insanity Defense: A Closer Look, Washington
Post com.staff writer, Feb. 27, 1998, found at
http://www.washingtonpost.com/wp-
srv/local/longterm/aron/qa227.htm & CNN Library, Andrea Yate
Fast Facts, Mar. 25, 213 at
http://www.cnn.com/2013/03/25/us/andrea-yates-fast-
facts/index.html.
46
Henry F. Fradella, From Insanity to Beyond Diminished Capacity:
Mental Illness and Criminal Excuse in the Post-Clark-Era, 18 U.
FLA. J.L. & PUB. POL’Y 7, 24 (2007).
47
United States v. Hinckley, 525 F.Supp 1342 (D.D.C. 1981).
48
Anne Gearan, Lorena Bobbitt Found Innocent; Jury Cites
Temporary Insanity : Law: Judge places her in custody to undergo
psychiatric evaluation after she severed mate's penis. Associated
Press, LOS ANGELES TIMES, Jan. 23, 1994, at
http://articles.latimes.com/1994-01-23/news/mn-14584_1_lorena-
bobbitt
Bantley, KoskiVol. 6, 2013 164
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Andrea Yates was found not guilty by reason of
insanity for the murder of her children.49
What is interesting about these cases is that
different standards of the insanity plea were used. In
the Hinckley case the Model Penal Code was used
as he was tried in Federal court. 50 In the Bobbitt and
Yates cases the M’Naghten Rule with the
Irresistible Impulse Test was used even though
Bobbitt was tried in Virginia and Yates was tried in
Texas. 51
Currently, courts use several standards
across the United States.52 Courts in about half of
the states use the M’Naghten rule, or variations of
the right/wrong test. 53 Essentially, the test requires
two criteria. 54 First, a defendant must not know the
nature and quality of his or her act due to a mental
49
CNN Library, Andrea Yate Fast Facts, Mar. 25, 213 at
http://www.cnn.com/2013/03/25/us/andrea-yates-fast-
facts/index.html.
50
Supra note 48.
51
The Insanity Defense Among the States, available at
http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-
among-the-states.html (last visited Oct. 15, 2013).
52
Id.
53
Id.
54
AM. J UR. 2D CRIMINAL LAW § 53.
Bantley, KoskiVol. 6, 2013 165
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disease or defect.55 Second, a defendant must not
know that his or her act was wrong due to a mental
disease or defect.56
Other states may have differing standards,
such as the “irresistible impulse test,” 57 the Durham
rule, 58 or the “substantial capacity test” established
by the Model Penal Code. 59 The “irresistible
impulse test” provides that a person may know that
his behavior is wrong, but he has no control over his
actions. 60 The Durham rule, on the other hand,
holds that if a mental disease or defect caused the
act, then the court cannot find the defendant to be
responsible for such act. 61 Finally, the “substantial
capacity test” states that a person is not responsible
for his conduct if, at the time of the conduct and as
a result of a mental disease or defect, the defendant
lacked the substantial capacity either to appreciate
the wrongfulness of his or her conduct, or to
55
Id.
56
Id.
57
AM. J UR. 2D CRIMINAL LAW § 54.
58
AM. J UR. 2D CRIMINAL LAW § 55.
59
AM. J UR. 2D CRIMINAL LAW § 56.
60
AM. J UR. 2D CRIMINAL LAW § 54.
61
AM. J UR. 2D CRIMINAL LAW § 54.
Bantley, KoskiVol. 6, 2013 166
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conform his or her conduct to the requirements of
the law. 62 Some states combine the above tests. 63
For example, Colorado uses a modified version of
the M’Naghten rule combined with the “irresistible
impulse test.” 64 Arizona also uses a modified
M’Naghten rule, but allows a finding of guilty but
65
mentally ill demonstrating that state to state, the
insanity standard could differ.66
As of this article’s publication, seventeen
states use the M’Naghten rule, 67 Fourteen states and
the District of Columbia use the substantial capacity
test. 68 Six states modify the substantial capacity
62
AM. J UR. 2D CRIMINAL LAW § 55.
63
Colorado General Laws R.S. (CRS) 16-8-101.5(a) & (b) and
California Penal Code Section 1026(a).
64
Colorado General Laws R.S. (CRS) 16-8-101.5(a) & (b).
65
Arizona Rev. State Sec.. 13-502(A).
66
The Insanity Defense Among the States, available at
http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-
among-the-states.html (last visited Oct. 15, 2013).
67
Id. listing Alabama, California, Florida, Iowa, Louisiana,
Minnesota, Mississippi, Nebraska, Nevada, New Jersey, North
Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South
Dakota, Washington.
68
Id. listing Hawaii, Kentucky, Maryland, Massachusetts, Michigan,
New York, North Dakota, Oregon, Rhode Island, Tennessee,
Vermont, West Virginia, Wisconsin, Wyoming., District of
Columbia.
Bantley, KoskiVol. 6, 2013 167
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test. 69 Four states use a modified M’Naghten rule, 70
three states use the M’Naghten rule with the
irresistible impulse test, 71 one state uses a modified
M’Naghten with irresistible impulse, 72 and one state
uses the Durham rule. 73 Four states, however, do
not have an insanity defense at all. 74
In many states, if a court finds that the
defendant is “insane,” then the court will acquit the
defendant of the alleged crime.75 Other states’
courts may find a defendant “guilty but mentally
ill;” 76 the defendant is responsible for his or her acts
but may be placed in either a jail or prison like other
offenders or may be committed to a state mental
hospital if inpatient treatment is needed.
69
Id. listing Arkansas, Connecticut, Delaware, Illinois, Indiana,
Maine.
70
Id. listing Alaska, Arizona, Georgia, Missouri.
71
Id. listing New Mexico, Texas., Virginia.
72
Id. listing Colorado.
73
Id. listing New Hampshire.
74
Id. listing Kansas, Montana, Idaho, Utah.
75
Supra note 13.
76
Jennifer Kuyts & Jennifer Esterman, Guilty but Mentally Ill
(GBMI) vs. Not Guilty By Reason of Insanity (NGRI): An Annotated
Bibliography, THE JURY EXPERT, 21(6), 28-37 (2009).
Bantley, KoskiVol. 6, 2013 168
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77
Furthermore, some states do not allow an insanity
defense. 78 Therefore, a court could consider a
defendant “insane” in one state and acquit him or
her of a crime, but a court in another state would not
acquit him or her.
III. BEING INSANE IN COLORADO AND THE
HOLMES CASE: VALIDITY OF NOT
Guilty by Reason of Insanity Findings
As more facts come to light about Holmes’
shooting at the Megaplex in Colorado, the insanity
plea in general and in Colorado will probably be
examined by the public because of Holmes’ plea of
“Guilty By Reason of Insanity.” 79 Colorado General
Laws R.S. (CRS) 16-8-101.5(a) & (b) defines
insanity as:
77
Id. and Ira Mickenberg, A Pleasant Surprise: The Guilty but
Mentally Ill Verdict has Both Successfully Preserved the Traditional
Role of the Insanity Defense, 55 U. CIN. L. REV. 943, 988 (1987).
78
The Insanity Defense Among the States, available at
http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-
among-the-states.html (last visited Oct. 15, 2013) listing Kansas,
Montana, Idaho, Utah.
79
Draper, James Holmes' Mental Health Records Given to
Prosecutors in Aurora Theater Shooting Case.
Bantley, KoskiVol. 6, 2013 169
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a) A person who is so diseased or
defective in mind at the time of
the commission of the act as to
be incapable of distinguishing
right from wrong with respect to
that act is not accountable;
except that care should be taken
not to confuse such mental
disease or defect with moral
obliquity, mental depravity, or
passion growing out of anger,
revenge, hatred, or other motives
and kindred evil conditions, for,
when the act is induced by any of
these causes, the person is
accountable to the law; or
b) A person who suffered from a
condition of mind caused by
mental disease or defect that
prevented the person from
forming a culpable mental state
that is an essential element of a
crime charged, but care should be
taken not to confuse such mental
disease or defect with moral
obliquity, mental depravity, or
passion growing out of anger,
revenge, hatred, or other motives
and kindred evil conditions
because, when the act is induced
by any of these causes, the
Bantley, KoskiVol. 6, 2013 170
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person is accountable to the
law. 80
Colorado also provides for “Not Guilty by Reason
of Impaired Mental Condition” (“NGRIMC”) in
C.R. S. 16-8-102(2). 81 It states
a person who does not meet the
criteria for insanity may be found
NGRIMC if the defendant suffers
from “a condition of mind, caused by
mental disease or defect, which does
not constitute insanity but,
nevertheless, prevent the person
from forming a culpable mental state
which is an essential element of the
crime charged”. 82
If a court finds that a defendant fits into
either of these categories, then the court would not
find him or her criminally responsible for his or her
act, and, instead, would commit him or her to an
indefinite term at a state forensic facility until he or
80
Colorado General Laws R.S. (CRS) 16-8-101.5(a) & (b).
81
Colorado General Laws R.S. (CRS) 16-8-102(2).
82
Robert D. Miller, et al.,The Validity of Colorado not Criminally
Responsible Findings, 34 J. OF PSYCHIATRY & L. 37, 39 (2006) citing
C.R.S. 16-8-102(2).
Bantley, KoskiVol. 6, 2013 171
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she could establish that he or she is no longer
mentally ill and dangerous. 83
A study by Miller, et. al., examined the
validity of Colorado’s insanity findings. 84
Specifically, the study looked at appropriateness of
insanity pleas and verdicts, based on the Colorado
“insanity” statute. The study discussed possible
reasons for inappropriate “Not Guilty by Reason of
Insanity” verdicts. 85
Additionally, a group of research evaluators
reviewed retrospective sources of data on 104 cases
that resulted in NGRI or NGRIMC findings. 86 This
sample included almost all defendants found NGRI
and NGRIMC and admitted to the Institute for
Forensic Psychiatry of the Colorado Mental Health
Institute at Pueblo from July 1986 through February
1992. 87 Records included initial forensic
observation reports, forensic hospital records, court
83
Robert D. Miller, et al.,The Validity of Colorado not Criminally
Responsible Findings, 34 J. OF PSYCHIATRY & L. 37, 39 (2006).
84
Robert D. Miller, et al.,The Validity of Colorado not Criminally
Responsible Findings, 34 J. OF PSYCHIATRY & L. 37, 37-49. (2006).
85
Id.
86
Id. at at 40.
87
Id. at 39.
Bantley, KoskiVol. 6, 2013 172
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orders finding the defendants’ lack of responsibility,
external hospital psychiatric records, police reports,
and psychological evaluation and testing. 88 In
addition, evaluators discussed cases with acquittees’
current treating psychiatrist or psychologist. 89 Then,
evaluators theorized on the accuracy of the
“criminally not responsible” finding. 90 Evaluators’
opinions were either “agreed,” “disagreed,” or
“unsure.” 91 The group met to discuss their findings
and reached one of three possible consensus
opinions about the not guilty findings: “agree,”
“unsure/divided,” or “disagree.” 92
Of the one hundred and four cases
examined, seventy-seven percent of the defendants
had a principal diagnosis of a psychotic disorder,
“such as schizophrenia, bipolar disorder, or major
depression psychosis”. 93 The remaining twenty-
three percent had a principal diagnosis either of
substance abuse or non-psychotic, non-substance
88
Id. at 40.
89
Id..
90
Id.
91
Id.
92
Id.
93
Id. 41.
Bantley, KoskiVol. 6, 2013 173
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abuse. 94 Interestingly, in sixty-one percent of the
cases95 evaluators agreed with the not criminally
responsible findings. In twenty-six percent of cases
however, evaluators disagreed with the findings. 96
Finally, in thirteen percent of the cases they were
unsure or divided. 97 For the most part (61% of the
time), surprisingly, evaluators agreed with the
courts’ decision. 98 The authors initially
hypothesized that evaluators would agree with the
not criminally responsible findings ninety-five
percent of the time.99 When evaluators disagreed or
were unsure/divided, they based their reasoning on
several factors, including the court’s confusion
regarding substance abuse or intoxication with
mental disease or defect; the court’s lack of
detection of malingered psychiatric symptoms, the
court’s lack of familiarity with Colorado statues, the
court’s desire for defendants to receive psychiatric
treatment, and the court’s lack of documented data
94
Id.
95
Id. at 42. The number of cases described by 61% is 63.
96
Id. The number of cases described by 26% is 27.
97
Id. The number of cases described by 13% is 14.
98
Id.
99
Id. at 44.
Bantley, KoskiVol. 6, 2013 174
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to support the forensic recommendation. 100 Another
interesting point made by the authors in regard to
the insanity defense in Colorado is that once a
person raises the defense, he or she is presumed to
be insane unless the State can prove beyond a
reasonable doubt that he or she was sane at the time
of the alleged offense. 101 Since this favors the
defendant, authors felt that at times a person could
“inappropriately” be found insane. 102
The potential outcome of the Holmes case
raises these issues. Under the applicable statute,
Colorado needs to prove Holmes’ sanity. 103 On
October 7, 2013, Holmes’ state mental hospital and
university submitted his mental health records to
state prosecutors. 104 Prior to the shooting, Holmes
received psychiatric treatment at the University of
Colorado, and, since his arrest, he received
100
Id. at 41.
101
Id. at 45 citing Colorado R.S. (CRS) 16-8-101 (1).
102
Id.
103
John Ingold, Why Colorado Law Will Make Prosecutors Prove
James Holmes is Sane, June 7, 2013, The RAPSHEET
blogs.denverpost.com/crime available at
http://blogs.denverpost.com/crime/2013/06/07/why-colorado-law-
will-make-prosecutors-prove-james-holmes-is-sane/5044/.
104
Supra note 4.
Bantley, KoskiVol. 6, 2013 175
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treatment at the Colorado Mental Health Institute at
Pueblo. 105 It will be interesting to see if prosecutors
will find any useful information from these records
to prove Holmes was “sane” at the time he
committed the offense. The trial is planned for
February 2014. 106
Also of interest will be how the public reacts
if Holmes is found NGRI. After the Hinckley
verdict public reaction was intensely negative. 107 A
poll conducted by ABC on the day of the verdict
indicated that 76% of Americans thought justice
had not been done.108 After the Lorena Bobbitt
verdict, there appeared to be mixed emotions
depending on gender. 109 When the Andrea Yates
verdict came out in 2006, the public acted with
restraint indicating a possible shift in attitudes
105
Id.
106
Id.
107
Supra note 41 at 946.
108
Reaction to Hinckly’s Bot Guilty Verdict, available at
http://law2.umkc.edu/faculty/projects/ftrials/hinckley/polls.htm.
109
David Usborne, Fireworks Over Bobbitt Verdict, Jan. 23, 1994,
THE INDEPENDENT available at
http://www.independent.co.uk/news/world/fireworks-over-bobbitt-
verdict-1401863.html.
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LSD Journal
toward mental illness and the insanity plea. 110
Holmes’ verdict may provide a clearer picture of
this shift.
IV. CHALLENGES TO THE INSANITY
DEFENSE AND PUBLIC PERCEPTION
Many people believe that the insanity
defense is a loophole that allows guilty defendants
to “go free.” 111 In one survey, sixty-six percent of
respondents believed that the insanity defense
should not be available. 112 One researcher analyzed
data from seven states to assess the accuracy of both
the public’s opinion and researchers’ conclusions
regarding the method of insanity adjudications. 113
Some examples include the public’s perception that
most insanity trials are decided by a jury, when, in
110 Editorial Opinion, Yates Verdict Reflects a Healthy Evolution,
July 27, 2006, USA Today available at
http://usatoday30.usatoday.com/news/opinion/editorials/2006-07-27-
yates_x.htm.
111 Valerie P. Hans & Dan Slater, “Plain Crazy” Lay Definitions of
Legal Insanity, 7 INT’L J.L. & PSYCHIATRY 105, 110 (1984).
112 Canton F. Roberts et al., Implicit Theories of Criminal
Responsibility: Decision Making and the Insanity Defense, 11 L. &
HUM. BEHAV. 207, 225 (1987).
113 Carmen Cirincione, Revisiting the Insanity Defense: Contested
or Consensus? BULLETIN OF AMERICAN ACADEMY OF
PSYCHIATRY & LAW, 24, 165-176 (1994).
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fact, only 14.4% 114are decided by a jury, and, of
these trials, only 16.1% of these trials result in an
acquittal.115
In addition to the public failing to
understand usage of the defense, at times, it has
even been challenged in the courts. This certainly
adds to the misunderstanding. An example of this
would be in the case of Reyna v. State 116
In Reyna v. State, the court rejected the
defendant’s insanity plea and found the defendant
guilty of aggravated assault and deadly conduct. 117
He appealed his conviction because the jury’s
rejection of his insanity plea went against the
118
weight of the evidence. On February 7, 2001, the
defendant took a rifle and shot cars driving along a
highway. 119 He hit a driver. 120 The evidence
indicated that the defendant had a history of both
114
Id.
115
Id.
116
Renya v. State, 116 S.W. 3d 362 (2003).
117
Id. at 364.
118
Id.
119
Id.
120
Id.
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auditory and visual hallucinations. 121 He also
suffered from delusions that the Mexican Mafia
hunted him and that he was born of Jesus. 122 In
addition, when police officers questioned him, he
was incoherent.123 The Texas Appeals Court
decided whether the jury should have found the
defendant was insane based on the evidence
presented at trial. 124 In this case, the court
considered insanity an affirmative defense, and the
defendant had both the burden of proof and the
burden of persuasion. 125 The court found for Reyna,
and, based on the evidence, held that the jury should
have found that he could not distinguish right from
wrong. 126
It would be interesting to know what the
jurors were originally thinking when they convicted
Reyna especially since the evidence showed he
could not determine right from wrong. 127 Bloechl,
121
Id. at 365.
122
Id.
123
Id. at 366.
124
Id.
125
Id. at 369.
126
Id.
127
Id.
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Vitacco, and Neumann studied perceptions of the
128
insanity defense. They discovered that having a
positive attitude toward capital punishment and an
overestimation of the use of the insanity defense
were strong predictors of negative attitudes toward
the insanity defense. 129 These authors felt that if
these attitudes and/or misconceptions led jurors “to
believe that finding an individual NGRI the
individual is ‘getting off easy’ they will certainly be
reluctant to vote in the affirmative for the
defense.”130
State v. Johnson, however, demonstrates a
court that deemed the insanity defense outdated.131
In this case, the Rhode Island Supreme Court
decided whether the court should abandon the
M’Naghten test and adopt a new standard. 132 The
court discussed M’Naghten’s history, its
128
Anglea L. Blooechl et al., An empirical investigation of insanity
defense attitudes: Explaining factors related to bias, 30 INT’L J.L. &
PSYCHIATRY 153-161(2007)
129
Id. at 158.
130
Id. at 159.
131
State v. Johnson, 399 A.2d 469 (R.I. 1979).
132
Id. at 470.
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application, and the concept of free will. 133 It
decided that it was time to “modernize” its
definition and abandon the M'Naghten rule. 134 The
court adopted a new standard of insanity for Rhode
Island, based on the Model Penal Code test. 135 One
of the court’s primary reasons was to protect the
jury’s role in trial. 136 The court wanted the jury to
focus on the “legal and moral aspects of
responsibility because it must evaluate the
defendant’s blameworthiness in light of prevailing
community standards.” 137 The court did not believe
the M’Naghten test allowed for this evaluation
because that test required total incapacity. 138 The
court stated that “impairment is a matter of degree
the precise degree demanded is necessarily
governed by the community sense of justice as
represented by the trier of fact.”139 Therefore, the
court opted for the Model Penal Code test, which
133
Id. at 470-73.
134
Id. at 470.
135
Id. at 476.
136
Id. at 476-77.
137
Id.
138
Id. at 477.
139
Id.
Bantley, KoskiVol. 6, 2013 181
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called for a “substantial” impairment as opposed to
a “total” impairment under M’Naghten. 140
In a more recent case, Clark v. Arizona, the
Supreme Court held that an Arizona insanity statute
did not deprive the defendant of due process. 141 In
1993, Arizona amended its insanity defense
eliminating the first part of the two-part insanity test
used in M’Naghten. 142 Arizona dropped the test’s
cognitive incapacity part but retained the moral
incapacity part. 143
The facts involved an occurrence in June
2000, when a defendant shot and killed a police
officer.144 At trial, the court found that when the
defendant committed the act he was a paranoid
schizophrenic suffering from delusions. 145 Under
the Arizona statute as amended in 1993, the court
found the defendant guilty of murder, however, and
not insane, even though he had these delusions. 146
140
Id.
141
Clark v. Arizona, 548 U.S. 735 (2006).
142
Id. at 746.
143
Id. at 747.
144
Id. at 743.
145
Id. at 746.
146
Id.
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This defendant appealed this case to the United
States Supreme Court.147 The Supreme Court asked
whether due process prohibited Arizona from
narrowing its insanity test, or from excluding
evidence of mental illness and incapacity due to
mental illness to rebut evidence of the requisite
criminal intent. 148 The Court held149 that the 1993
amendment to Arizona’s insanity definition did not
violate the defendant’s due process right, and
sustained his conviction.150
This case demonstrates the Court’s
willingness to allow states to define insanity in any
manner that does not violate a defendant’s due
process rights. 151 The case also demonstrates that,
even if a defendant operated under a hallucination
or a delusion, a court may not deem him or her
147
Supra note 149.
148
Id. at 747.
149
Souter delivered the opinion of the Court, Roberts, C.J. & Scalia,
Thomas, and Alito, JJ., joined, and in which Breyer, J., joined except
as to Parts III-B and III C and the ultimate disposition. Breyer, J.,
filed an opinion concurring in part and dissenting in part. Kennedy,
J. filed a dissenting opinion, in which Stevens and Ginsberg, JJ.,
joined.
150
Id. at 778.
151
Id.
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“insane,” especially if the court finds that he or she
knew right from wrong even in the state of delusion.
V. RECOMMENDATIONS
As Holmes’ case progresses to trial in
February 2014, the public will again consider the
insanity plea. While the public may discuss some of
the same considerations as in the John Hinckley
trial,152 this time, a main focus should remain on
educating the public and jurors about the facts of
the plea and addressing their misperceptions
regarding an insanity plea. In addition, media
should address the different standards for “legal”
insanity along with the reasons for these standards’
variances. Lastly, the media and legal scholars
should discuss the Clark case and other such
decisions in detail. Newspapers, websites, blogs,
social media and traditional news broadcasts all can
provide the public with this information
152
Kimberly Collins et al., The John Hinckle Trial & its Effects on
the Insanity Defense, available at
http://law2.umkc.edu/faculty/projects/ftrials/hinckley/hinckleyinsanit
y.htm.
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instantaneously. As the trial begins, these
disseminators of information should take the
opportunity to thoroughly explain the defense, all of
its implications, and prejudices against its use. If the
media emphasizes law, holdings, and various
courts’ rationales, then maybe the public, including
jury members, would not think defendants found
NGRI are “getting away with murder.”
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