Encyclopedia of Psychology and Law

other people do; they may steal because they are

greedy, fight because they are angry, or drive poorly

because they are intoxicated. To sustain an insanity

defense, the mental impairment must have contributed

to the occurrence of the criminal behavior.

Finally, the link between the predicate mental

impairment and the criminal behavior must specifi-

cally be of the type prescribed in the legal test. As

noted above, depending on the legal jurisdiction, the

test for insanity may reference either cognitive or voli-

tional impairments. Imagine a scenario in which a per-

son with a well-established diagnosis of generalized

anxiety disorder (“mental disease”) suddenly felt

extremely anxious in a situation where the only means

of escaping was to take another person’s car and drive

away. He is not confused as to the ownership of the car

(i.e., he “knows” that it belongs to another person),

does not think that he has that person’s permission to

take the car (i.e., has no illness-related delusion that he

has the authority or approval to take the car), and is

aware of, and maybe even consciously anxious about,

the possibility that he could be arrested for taking the

car. Under a purely cognitive insanity formulation that

focuses on “knowing” or “appreciating” the wrongful-

ness of his behavior, there is little to suggest that the

actor’s illness (acute anxiety symptoms)—although it

motivated his decision to take the car—impaired his

cognitive abilities in the way prescribed by the legal

test. Alternatively, under a volitional formulation that

referenced impaired control of impulses or capacity to

conform conduct, the sudden strong urge to flee,

arguably animated by his anxiety disorder, might sup-

port a finding of insanity.

Clinical Assessment of

Criminal Responsibility

When the defense decides to pursue a defense of insan-

ity, mental health professionals, commonly psychia-

trists or psychologists, are hired by the prosecution and

defense and/or appointed by the court to evaluate the

defendant’s mental condition and to provide reports

and/or testimony as to the defendant’s criminal respon-

sibility. This is one of the most challenging types of

evaluation for mental health professionals in their roles

as forensic examiners because it is different, in so

many ways, from the ordinary evaluations that they

conduct in clinical (nonlegal) settings.

Clinical diagnostic assessments are imperfect even

under optimal conditions—that is, when the clinician

is working with a voluntary, candid, and willing client

and the focus is on present mental functioning and

treatment planning. Such conditions are almost never

present when evaluations for criminal responsibility

are being conducted. Because the insanity evaluation

focuses narrowly on a specific point in time in the past,

this inevitably diminishes the utility of commonly used

clinical measures, such as psychological tests or other

diagnostic procedures. Instead, insanity evaluations

rely to a large extent on reviews of investigative evi-

dence collected by the police, interviews with defen-

dants, and information collected from third parties

who may have knowledge relevant to the defendant’s

behavior and functioning at or near the time of the

offense. Thus, investigative reporting, rather than tradi-

tional clinical assessment, is perhaps a better concep-

tual model for criminal responsibility evaluations.

The challenges faced in conducting criminal respon-

sibility evaluations include the following:

The Evaluation Is Retrospective. It is not uncommon

for insanity evaluations to be conducted weeks or

months after the defendant’s arrest. Furthermore, the

time window between the crime and the clinical eval-

uation may be extended considerably if the arrest is

made only after a prolonged investigation. Much can

happen during this interval to distort the reconstructed

picture of the defendant’s prior mental state, including

the following:

1. The defendant has a mental illness that has deterio-
   rated over time; the clinician interviews the defen-
   dant in this more disturbed state and may attribute
   more psychopathology at the time of the offense than
   was actually present.


2. The defendant has a mental illness that improves
   either spontaneously, due to the cyclical nature of the
   disorder, or to treatment received (e.g., in jail); the
   clinician interviews the defendant in this less dis-
   turbed state and may attribute less psychopathology
   at the time of the offense than was actually present.


3. Although not symptomatic at the time of the
   offense, the defendant may have developed symp-
   toms subsequent to the offense (e.g., a reaction to
   the nature of the crime itself, to events that occurred
   at arrest or in the jail, or in anticipation of serious
   consequences); the clinician may attribute some of
   this symptomatology as being present at the time of
   the offense.

Criminal Responsibility, Assessment of——— 159

C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 159