“balance between the forces of law and the forces of
lawlessness.” Yet the percentage of insanity defenses
pled is small (at the most 1%), the percentage of those
successful is smaller (1/4 of 1%), and the percentage
of those successful in contested cases is minuscule
(1/10 of 1/4 of 1%).
Notwithstanding the defense’s relative numerical
insignificance,it touches—philosophically, culturally,
and psychologically—on our ultimate social values
and beliefs; it is rooted in moral principles of excuse
that are accepted in both ordinary human interaction
and criminal law; and it continues to serve as a surro-
gate for resolution of the most profound issues in
criminal justice. Although the defense has been signif-
icantly narrowed in many jurisdictions in the past 25
years—a condition intensified by the verdict in the
John Hinckley case (which involved the attempted
assassination of President Ronald Reagan) as well as
several other unpopular or “wrong” jury verdicts in
cases involving sensationalized crimes or public fig-
ure victims—reports of its demise are, to a great
extent, exaggerated and, in spite of public outrage, the
doctrine has remained alive in most jurisdictions.
The insanity defense has been a major component
of the Anglo-American common law for more than
700 years. Rooted in Talmudic, Greek, and Roman
history, its forerunners actually can be traced back to
more than 3,000 years. The sixth-century Code of
Justinian explicitly recognized that the insane were
not responsible for their acts and also articulated the
early roots of the temporary insanity and diminished
capacity doctrines. By the ninth century, the “Dooms
of Alfred” (a code of laws compiled by Alfred the
Great) acknowledged that an impaired individual—
who could not acknowledge or confess his offenses—
was absolved from personally making restitution. In
pre-Norman England, the law similarly shifted repara-
tions responsibility in the event that a “man fall out of
his senses or wits,...and kill someone.”
The defense’s “modern” roots can be traced at least
as far back as 1505, the first recorded jury verdict of
insanity, but it is clear that even prior to that case,
juries considered “acquittal to be the appropriate
result” in certain insanity defense cases. Furthermore,
William Lambard’s late-16th-century text on criminal
responsibility (The Eirenarcha) suggested that the
insanity defense was already well settled in England,
and Sir Edward Coke’s 1628 treatise,Institutes of the
Laws of England, gave the law the familiar maxim
that the “ madman is only punished by his madness.”Early Developments
In the early 18th century, English judges began the
process of attempting to define for juries that condi-
tion of the mind which would excuse, as a matter of
law, otherwise criminal behavior. In Rex v. Arnold
(1724), the first of the historically significant insanity
defense trials, Judge Tracy charged the jury in the fol-
lowing manner:That is the question, whether this man hath the use of
his reason and sense? If he... could not distinguish
between good and evil, and did not know what he
did...he could not be guilty of any offence against
any law whatsoever....On the other side...it is not
every kind of frantic humour or something unaccount-
able in a man’s actions, that points him out to be such
a madman as is to be exempted from punishment:it
must be a man that is totally deprived of his under-
standing and memory, and doth not know what he is
doing, no more than an infant, than a brute, or a wild
beast, such a one is never the object of punishment.The law of criminal responsibility evolved further
in 1800, in the case of James Hadfield, which envi-
sioned insanity in the following manner:That a man could know right from wrong, could
understand the nature of the act he was about to com-
mit, could manifest a clear design and foresight and
cunning in planning and executing it, but if his men-
tal condition produced or was the cause of a criminal
act he should not be held legally responsible for it.This trend toward a more liberal defense continued
in the case of Regina v. Oxford(1840), which con-
cerned the attempted assassination of Queen Victoria,
in which the jury charge combined portions of what
would later be known as the “irresistible impulse” test
and the “product” test.MM’’NNaagghhtteennCase
The most significant case in the history of the insanity
defense in England (and perhaps in all common-law
jurisdictions) arose out of the shooting by Daniel
M’Naghten of Edward Drummond, the secretary of
the man he mistook for his intended victim, Prime
Minister Robert Peel (as with all the other cases
already discussed, the victim was a major political162 ———Criminal Responsibility, Defenses and StandardsC-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 162