RANDY BORUM THE COMPETENCE QUESTION

To establish that one is guilty of a crime, the law typically requires proof that an individual engaged in proscribed (unlawful) conduct (actus reus) and did so with unlawful intent (mens rea).

If one's capacity to exercise rational will in forming an intent to act is impaired by illness, disease, or defect (as opposed, for example, to volun­tary intoxication), then the law stipulates that the individual's moral and legal culpability (blameworthiness) is diminished. This is the basis for the legal doctrine of the insanity defense, and for the designation of not guilty by reason of insanity (NGRI).

To establish an insanity defense, it must be proven that at the time of the offense, the defendant had a severe mental illness or disability and that the condition impaired his or her cognitive and/or volitional capaci­ties in certain ways. If these conditions are met, and the defendant is found to be NGRI, that individual is deemed "not guilty" in the legal sense and therefore is not subject to criminal sanctions for the behavior; however, he or she is likely to be civilly committed to a psychiatric hospi­tal. This disposition is rooted, in part, in a belief that punishment would not serve as a deterrent and that treatment (usually with confinement) is a more appropriate disposition than imprisonment.

Although there is a legitimate role for mental health professionals in these proceedings, it is important to understand two clinical-legal distinc­tions in criminal responsibility assessments. First, the assessment of insan­ity or mental state at the time of the offense (MSO) does involve an appraisal of capacity, but it is not customary to refer to this ability as a legal "competency." One would not refer to a defendant who meets criteria for legal insanity as being legally incompetent. As explained in Chapter 1, assessments of criminal responsibility/insanity are covered in this book (which otherwise focuses only on legal competencies) because they are among the more common questions posed in criminal forensic assessment, because they focus on human capacities and mental states, and because there is potential heuristic value in submitting the insanity question to analysis based on the assessment model for legal competencies.

Second, although clinical and mental health expertise may be rele­vant for an appraisal of insanity, the concept and definition of insanity in the law is legal, not clinical. The term "insanity" in criminal proceedings has a very specific legal meaning, and is not equivalent to simply having a mental illness. People can be mentally ill—even actively psychotic—at the time they commit a crime, but not be legally insane. Indeed, most offenders with mental illness do not meet the legal criteria for insanity. Mental illness or disability is a necessary but not a sufficient condition for legal insanity. Moreover, the law even determines what constitutes a men­tal illness, disease or defect for purposes of the defense, and legal defini­tions often are not synonymous with clinical convention, official diagnostic nomenclature, or other clinical criteria such as those found in DSM-IV (American Psychiatric Association, 1994).

Mental health professionals who conduct MSO evaluations or insanity assessments should know not only the doctrine of insanity and the rele­vant legal standard, but also how the defense operates in actual practice.

The insanity defense is rarely used and, when used, is usually not successful. In fact, on average the insanity defense is raised in less than 1% of all felony cases, and is only successful about 25% of the time (Perlin, 1994; Melton, Petrila, Poythress, & Slobogin, 1997). The publicity of these cases makes them seem much more common (Silver, Cirincione, & Steadman, 1994). In a survey of seven states, the rate of insanity pleas ranged from.29 to 1.73 with an average of.85 (less than 1%) per 100 felony indictments. The aggregated success rate for insanity pleas in that survey was 28.1% (Cirincione, Steadman, & McGreevy, 1995). Similar findings have emerged from at least two other multi-state studies (Pasewark & McGinley, 1986; Steadman et al., 1993).

The insanity defense is raised in cases ranging for misdemeanors to serious violent felonies. Cases in which a defendant accused of a homi­cide raises an insanity defense often receive the greatest public attention. Murder cases, however, account for only about one-third or less of insan­ity defenses (Rodriguez, LeWinn, & Perlin, 1983), and the rate of success (NGRI acquittal) for these defendants is no better than for those accused of other offenses (Steadman, Keitner, Braff, & Aravanites, 1983). In addi­tion, research suggests that, on average, insanity acquittees do not tend to be more dangerous or to be at greater risk of recidivism than other defen­dants convicted of felony offenses (Pasewark, Pantle, & Steadman, 1979; Steadman & Braff; 1983).

These concerns underscore the need for mental health professionals to develop a clear understanding of how the defense operates in practice so that they have an appropriate context for their assessments in insanity cases.

Law and Current Practice

Legal Standards

The insanity defense doctrine has been a well-established part of Anglo-American criminal law since at least the 17th century. Through the years, the substantive standards and criteria have changed (e.g., wild beast test, "good and evil", "right and wrong"), but most states currently use one of two insanity defense standards: the McNaughtan standard, or the standard provided in American Law Institute (1962) Model Penal Code (called the "ALI standard"). About one-half of the states use McNaughtan and one-half the ALI standard. (Only New Hampshire employs a distinctly different standard, based on Durhamv.U.S. [1954], which requires showing only that the unlawful act was the "product" of mental disease or defect.)

The McNaughtan standard requires proof that, at the time of the offense, as a result of a mental disease or defect, the defendant did not know the nature or quality of his act or did not know that the act was wrong. This standard arose out of England's case of Daniel McNaughtan (McNaughtan's Case, 1843), who mistakenly shot the secretary of Prime Minister Robert Peel (his intended target) and was acquitted as not guilty by reason of insanity. There was a tremendous public outcry about this verdict. Queen Victoria was outraged and demanded clarification from the House of Lords concerning the rules governing insanity. The Supreme Court of Judicature responded to the Lords' request and answered in part with the following statement: "(T)o establish a defense on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring 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 if he did know it, that he did not know he was doing what was wrong" (McNaughtan's Case, 1843, p.

Some states adopted the McNaughtan standard strictly, while others supplemented it with an "irresistible impulse" test. The rationale for this expansion was that the strict McNaughtan standard considered only know­ledge and cognitive considerations, not permitting courts to consider men­tal impairments that may have affected the defendant's ability to control his or her own actions, also known as volitional impairments (Morris, 1975).

The American Law Institute (1962) formally included a volitional component in the test of insanity when it drafted its Model Penal Code (Sect. 4.01). The ALI standard provides that: "a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law." Because this ALI standard is broader, allowing either cognitive or volitional impairment to qualify, the McNaughtan stan­dard is generally considered to be the more conservative of the two.

In the ABA Criminal Justice Mental Health Standards project, the American Bar Association (1989) attempted to achieve equipoise between the narrow "knowledge" standard in McNaughtan and the broad "conform" element of ALI. It proposed using language from the cognitive prong of the ALI test, without the language from the volitional prong. Thus, the project proposed that the test of insanity should be: "A person is not responsible for criminal conduct if, at the time of such conduct, and as a result of mental disease or defect, that person was unable to appreciate the wrongfulness of such conduct" (American Bar Association, 1989, Standard 7-6.1, p. 330). This was intended to focus the test on issues more typically within the purview of mental health expertise (cognitive and affective functioning) rather than on the perceived strength of one's desire or impulse and the capacity to control it.

A few states have chosen, however, to abolish the insanity defense altogether. Montana and Idaho eliminated their insanity defense provi­sions before John Hinckley was found not guilty by reason of insanity for his assassination attempt on President Ronald Reagan, and Utah abol­ished its insanity defense shortly thereafter (Steadman et al., 1993). Nevada and Kansas followed suit in the mid-1990s.

While the insanity defense is intended to designate individuals who are not guilty or not criminally responsible due to impairment from a mental disability, some states also have a designation for offenders who have a mental illness, but who are held criminally responsible for their acts. This provision is known as guilty but mentally ill (GBMI). Since the first GBMI provision was enacted in Michigan in 1975, approximately 12 other states have created similar laws. The GBMI verdict was initially cre­ated as an alternative verdict to NGRI for use when it was proven that a defendant had a mental illness, but otherwise did not meet the insanity defense criteria. The statutory provisions for GBMI vary across the states, but they generally recognize either (a) that the defendant is currently men­tally ill or (b) that the defendant was mentally ill at the time of the offense. However, unlike the insanity defense, this recognition does not affect the defendant's culpability or criminal disposition.

The original intent of GBMI was twofold: (a) to reduce the number of insanity acquittals by allowing jurors an explicit mechanism to convict mentally ill persons who did not meet the insanity defense criteria, and (b) to assure treatment for such individuals within a correctional setting (Robey, 1978). Recent research suggests, however, that in many instances these objectives have not been achieved (Borum & Fulero, 1999). In addi­tion, the American Bar Association's Criminal Justice Mental Health Standards, the American Psychiatric Association's Statement on the Insanity Defense, the National Mental Health Association's Commission on the Insanity Defense, the American Psychological Association, and the National Alliance for the Mentally Ill all have opposed or recommended against adoption of GBMI.

It is important for evaluators to understand the distinction between NGRI and GBMI. The insanity defense is an affirmative defense to a crime. If defendants meet all criteria in the standard, they may be deemed "not guilty" (not criminally culpable) in the eyes of the law. Accordingly, they may be subject to civil proceedings for their confinement, but not to crimi­nal incarceration or punishment. In contrast, GBMI is a verdict that implies that one is "guilty" (criminally culpable) and is subject to criminal sanctions including incarceration and possibly death (Harris v. State, 1986; People v. Crews, 1988). The addition of "but mentally ill" only denotes a finding that the defendant had a mental disorder at the time of the offense (or sentencing), but it does not lessen his or her guilt or culpability. As noted above, all states (except Utah and Nevada) with GBMI have added it to their existing insanity defense. The GBMI verdict is not considered in detail in the remainder of this chapter because it seems to raise no special assessment questions concerning a defendant's capacities in relation to the alleged criminal act.

Legal Process

Because the insanity defense is an affirmative defense, it is an issue raised most often by defense counsel. When the question is raised, mental health professionals often conduct assessments in inpatient psychiatric settings, although since the mid-1980s there has been a significant shift toward greater use of community-based forensic assessments (Grisso et al, 1994). Some states conduct full assessments in the community, while others use community-based evaluations for screening and then refer a defendant to an inpatient unit for a full evaluation if necessary. As noted in Chapter 4 ("Legal Process"), some judges routinely request simultane­ous evaluations of criminal responsibility and competency to stand trial. This obscures the differences in purpose and definition between the two legal concepts, and creates some evidentiary challenges concerning dis­closure of, and access to, potentially incriminating information (Keilitz, Farthing-Capowich, McGraw, & Adams, 1984).

Although numerous issues of legal procedure affect the operation of the insanity defense in U.S. courts (e.g., instructions to jury, burden of persuasion on prosecution or defense, forms of verdict), most do not directly affect the way that the examiner conducts the evaluation or how the expert offers opinions and evidence. There are, however, two notable exceptions.

First, jurisdictions differ with regard to the nature and scope of opin­ions on the issue of insanity that an expert is permitted to offer. In general, the Federal Rules of Evidence offer broad latitude to experts in providing any opinion that may assist a judge or jury in determining a fact at issue. In fact, in most cases, Rule 704 even permits an expert to offer an opinion on the "ultimate issue" of whether the elements of a particular legal stan­dard are met in a given case. This is not true, however, for opinions on the issue of insanity. Mental health professionals are explicitly prohibited from offering opinions on the ultimate issue of a defendant's mental state or condition in federal proceedings involving the insanity defense (Rule 704b). Similarly, some state courts, such as California, expressly prohibit mental health professionals from testifying as to whether the mental state of the defendant meets the requirements of the legal standard. The ration­ale for excluding such testimony is that the ultimate judgment of insanity (excusing one from criminal responsibility) is a moral or normative deci­sion, not a clinical one. To allow a mental health professional to offer an opinion on this issue would arguably invade the province of the judge or jury as fact finder. Examiners, therefore, should be familiar with the rele­vant evidentiary rules in the jurisdictions in which they practice.

A second procedural issue concerns the introduction of potentially incriminating information gained directly from the defendant about the act with which he or she is charged. Evaluators routinely inquire into the defendant's actions, thoughts, and emotions at the time of the alleged offense as part of gathering relevant information about the defendant's mental state. The evaluator often must disclose or refer to that informa­tion in testimony when describing the bases for his or her opinion, yet that information may incriminate the defendant. Possible remedies, including instructing the jury to disregard self-incriminating testimony (American Bar Association, 1989) and creating separate fact finding processes for the act and the mental state, have met with limited success.

Insanity Assessment: Current Practice

Little empirical evidence is available on the nature or quality of mental health professionals' assessments related to the question of insanity. Some surveys, however, have suggested that judges often use the testi­mony of mental health professionals in insanity cases and typically find it helpful and important (Melton, Weithorn, & Slobogin, 1987; Petrella & Poythress, 1983).

reliability and validity. Because evaluations for mental state at the time of the offense (MSO) are conducted in the context of an adversarial process, an important fundamental question is whether different examin­ers reach the same conclusions regarding a defendant's mental state. Psychometrically, this is the issue of reliability (inter-examiner reliability). Fukunaga, Pasewark, Hawkins, and Gudeman (1981) examined the relia­bility of MSO assessments in a naturalistic, archival sample of 355 cases in Hawaii. Courts in that state often appoint at least two independent exam­iners when the issue of a defendant's sanity is raised, but those examiners are not barred from communicating with one another before submitting their own reports. The frequency with which such communication occurs, however, is not known. Nevertheless, it is encouraging that pairs of inde­pendent evaluators agreed on the ultimate conclusion of sanity/insanity in 92% of the cases.

That study does not account, however, for the biases that may occur when the experts are in a more typical and explicitly adversarial relation­ship. Otto (1989) examined a phenomenon known as "forensic identifica­tion" in MSO assessments. The notion of forensic identification posits that when examiners are retained by a given party (as opposed to being court appointed) during an adversarial proceeding, they are likely to experi­ence a subtle influence that causes them to interpret information or to form conclusions in a light most favorable to that side. Indeed, using writ­ten scenarios in an analogue study where the designation of the retaining party was randomly assigned, Otto found that participants given an iden­tical set of facts were more likely to assign an ultimate conclusion that favored the side by which they were retained.

If the judgments are reliable, one may inquire as to whether they are valid. Determining the validity of judgments about MSO is challenging because there is no "gold standard" criterion that is unaffected by the opinion rendered in the evaluation itself. The conventional approach has been to examine the concordance between examiners' opinions and ulti­mate legal judgment/determinations. The obvious limitation with this strategy is "criterion contamination;" the legal determination typically is informed or affected by the results of the mental health evaluation. Studies that have assessed validity in this way, however, have consis­tently found very high rates of agreement—on average, 95%—between expert opinions and legal determinations (Albers & Pasewark, 1976; Fukunaga et al., 1981).

the assessment process. There is a dearth of professional or scien­tific literature describing normative practice in MSO evaluations. What little empirical information is available can only be inferred from mental health professionals' reports in insanity cases. At the broadest level, all forensic reports, including MSO reports, should include (a) data, (b) clinical and forensic opinions, and (c) some indication of how the opinions arise from, or are supported by, the data (Melton et al., 1997).

Accordingly, the first question about the assessment process is what sources of data an evaluator should seek, use, and consider when arriving at an opinion on a defendant's MSO. Based on an analysis of recent sources of authority on forensic assessment practice, information from multiple sources appears critical. The following data sources are fre­quently recommended (Heilbrun, 2001; Melton et al., 1997; Rogers & Shuman, 2000; Shapiro, 1999):

• Extensive interviews with the defendant, focusing on the events surrounding the offense, the defendant's mental state before and during the offense, and their relation to each other.

• Comprehensive review of police reports and other legal documents related to the alleged offense.

• Review of criminal justice and mental health system records of the defendant's life prior to the event.

• Review of jail and/or hospital ward notes and records concerning the defendant's incarceration between the time of arrest and the assessment, and during the period of time over which the assess­ment process occurs.

• Collateral interviews with any individuals who were in contact with the defendant in the period of time leading up to, during, and after the alleged offense, or reviewing written statements by these individuals.

• Collateral interviews with the defendant's family members and friends.

• Interview with the defendant's attorney (if appropriate with regard to the expert's role in the case) to obtain information of which the expert might not be aware from other sources, as well as the attorney's direct observations of the defendant.

• Conducting or ordering neurological, psychological, and/or neuro­psychological testing when such information may address specific questions raised by data from other sources.

The second, related question is what specific information (data) should be collected or analyzed from these sources. This selection should be informed and guided by the three key objectives: (a) to assess the nature and severity of any mental illness or disability that the defendant may have had at the time of the alleged offense; (b) to assess the defen­dant's thought processes and emotional states before and during the act; and (c) to assess the relationship between them.

Borum and Grisso (1996) surveyed experienced forensic psycholo­gists and psychiatrists regarding the importance of specific elements in insanity/criminal responsibility reports. Although these opinions were asked with respect to report writing, they also have implications for understanding recommended practice, since gathering and analyzing particular information would be necessary to include in the report. The consensus of these expert forensic examiners was that the following data elements were essential for the MSO report. "Essential" means that participants felt that these elements must be included in a competent forensic report, and excluding the information would suggest that the report was below acceptable standards.

• Psychiatric History; Information that addresses whether or not defendant has a history of mental illness (or mental retardation).

• Current Mental Status: Information (data) about defendant's current mental status, derived at least in part from direct observation of defendant by examiner (must be a description of mental state at the time of the evaluation). (For example, describing delusions or other symptoms, describing thoughts or thought processes, describing level of intelligence at present time).

• Formal Mental Status Exam: Description of mental status that com­ments on the following: Orientation; Memory; Emotion; Behavior; Thought.

• Psychotropic Medication: Statement identifying defendant's current use of psychotropic medication (since time of arrest and at time of evaluation) or absence of it.

• Psychological Testing: Among Forensic Psychiatrists, 61% rated test­ing as either essential or recommended, with only about a third (37%) rating it as optional. Among Forensic Psychologists, 68% rated testing as either essential or recommended, with 32% rating it as optional.

• Mental Health Records: Includes a statement indicating that some document(s) from previous mental health evaluation/treatment was reviewed by examiner, or that such records were not available when an attempt was made to obtain them.

• Information from Police: Description of information (data) from police concerning defendant's behavior at time of arrest OR statement indi­cating that the examiner made an effort to obtain information from police, but such information was not made available to the examiner.

• Prior Diagnosis : Statement indicating a diagnosis from earlier med­ical or psychiatric treatment, or indicating the absence of earlier diagnosis or treatment history.

• Alcohol/Substance Abuse: Statement identifying presence and degree, or absence, of alcohol or other substance abuse in the past (prior to current charges).

• Defendant's Disclosure: Information (data) about defendant's behav­ior at time of the alleged offense based on the defendant's own report; or a statement indicating that the examiner made an effort to obtain the information, but defendant was not willing or able to pro­vide a description of behavior and events at time of alleged offense.

• Collateral Description: Information (data) from interview with wit- ness(es) concerning defendant's behavior at time of the alleged offense, or from others who encountered the defendant soon before or after the alleged offense; or a statement that no persons are known to have had contact with the defendant immediately before, during or after the alleged offense, or that potential informants were contacted by the examiner but were either unwilling or unable to provide relevant information.

It is the process prior to the reporting of data, however, that requires far more attention than it has been given. Remarkably little is documented con­cerning the process with which examiners collect and interpret data to describe a defendant's past mental state, to rule out alternative states, and to relate the defendant's pathological thoughts or feelings to the behaviors in question. Our frequent inability or disinclination to specify the evidence and logic with which we "postdict" diagnoses and mental processes in insanity cases has been one of the courts' greatest concerns (e.g., Bazelon, 1982). The following discussion continues the search for ways to better articulate the logic involved in clinical inferences related to the legal question of insanity.

From Legal Standard to Forensic Assessment

Functional Component

As noted above, insanity is not designated a legal competence. The general assessment model used in this book (chapter 2), however, may still have heuristic or conceptual value to structure or organize an evalua­tor's thinking about the requirements of legal standards for insanity. Thus, we begin by examining the functional capacities and contexts of existing tests of insanity.

Between the two major standards currently used in the U.S.— McNaughtan and ALI—there are two significant domains of functional capacity: cognitive and volitional. In the McNaughtan test, the cognitive component refers to "knowing," whereas in the ALI standard the cognitive element refers to "appreciation." Many legal scholars have noted that these two concepts are distinct and distinguishable. From a psychological perspective "knowing" is a relatively narrow process, typically referring to an individual's storage of information and capacity to retrieve it. In subsequent legal analysis in the United States, the word know in the McNaughtan test was interpreted to refer to the capacity to be aware of or to comprehend the character of the act and its probable or possible conse­quences (Goldstein, 1967).

Legal scholars have suggested that the shift from "know" to "appreci­ate" in subsequent tests of insanity was deliberate, intending to broaden relevance beyond rote knowledge or memory or the existence of a law or social proscription, thus including "an ability to recognize and understand the significance of [one's] personal actions" (American Bar Association, 1989, p. 343). Knowledge is a predicate condition. Appreciation extends further to one's capacity to understand how that knowledge may apply— and its implications—in relation to one's own situation or a given set of facts. For example, one may "know" that an automobile engine requires oil; yet one does not "appreciate" the engine's need for oil unless one com­prehends and can rationally evaluate the potential risks and consequences of failure to put oil in the engine. Thus, the functional capacities that may be the object of assessment are broader in relation to the ALI and ABA stan­dards than for the McNaughtan standard.

That which one must be capable of knowing (McNaughtan) or appre­ciating (ALI, ABA) is specified as the "criminality" or as the "wrongful­ness" of the act. Courts in the U.S. have interpreted these terms in somewhat different ways. Some have interpreted this element strictly to refer to a defendant's recognition that the conduct was illegal or against the law, while others have focused on the defendant's apprehension of moral wrongfulness or transgression.

The term criminality, on its face, implies a focus on the illegality of the act. "Knowledge of criminality" of one's act seems to require only that one has stored in memory, and can retrieve, the fact that the act is prohibited by law. Appreciation of criminality would seem to require more. Knowledge is necessary, but one must also have the ability to compre­hend his or her own situation in regard to a potential breach of that law. One might need to comprehend and believe that if the law is transgressed, that he or she may be subject to certain consequences. For example, one may know that it is unlawful to kill another person, but believe that the "laws of man" do not apply to or affect him because he is acting as an agent of God. The individual may believe that God will not allow any punishment to come to him and therefore not appreciate the likely conse­quences of his act.

Although the term wrong may be more readily associated with moral transgression, wrong in the McNaughtan standard has generally been regarded as referring to legal rather than moral proscription. Wrongfulness in the ALI and ABA standards, however, was intended to focus inquiry more broadly on "prevailing social morality" and views of "moral justi­fication" (American Bar Association, 1989, p. 343) with regard to one's conduct, not merely on whether the act was illegal. Therefore, knowledge of wrongfulness of one's act would require that one has stored in memory and can retrieve the fact that prevailing moral standards (not merely laws) hold the act unjustifiable. Beyond that knowledge, an appreciation of wrongfulness would require one to have the capacity to comprehend and incorporate the prevailing moral standards that may undergird the formal laws.

If assessing one's functional capacity to know or appreciate the wrong­fulness of the act seems challenging and complex, the appraisal of volitional capacity required by the ALI standard (the ability to "conform one's con­duct to the requirements of law") is, in many ways, even more thorny and ambiguous. The general psychological capacities associated with this legal component might be construed as abilities to inhibit affective or behavioral reactions, to modulate impulses or desires to act, to delay one's responses, or to redirect one's responses toward options that might have less harmful consequences. Specifically, the issue for the legal standard is the defen­dant's capacity to have behaved in some other (nonoffending) manner at the time of the offense. Historically, some have suggested using the "police­man at the elbow" test; that is, would the defendant have committed the act even if there had been a police officer standing next to him?

Fundamentally, the ultimate distinction regarding the volitional ele­ment of the insanity standard is between an irresistible impulse and an unresisted (although resistible) impulse, which the American Psychiatric Association (1982) and others have rightly characterized as an often subtle differentiation. Moreover, the ALI standard requires that the impairment in volitional capacity be substantial, so that deficits or impairments that are less serious might have little or no relevance concerning the defen­dant's claim of incapacity at the time of the offense. This is made even more challenging by the fact that the appraisal must focus on the defen­dant's capacity at some prior point in time (not currently) and under the particular set of conditions (including perceptions and emotions) that existed when the defendant committed the act.

In summary, translating concepts in insanity standards into func­tional ability constructs amenable for assessment is a different task than for other legal standards that are designated as legal competencies. This is partly because the focus in an insanity assessment is on the individual's mental state at a particular moment in time in the past. Concepts and terms in other legal competencies relate primarily to an individual's cur­rent abilities. Depending on the circumstances, one's current capacity may have limited relevance to the postdictive question. Nevertheless, the deconstruction of these concepts into their psychological components may help to guide one's questioning and analysis of data and help to structure one's reasoning and communication of opinions in these cases.

Causal Component

Both of the major insanity standards (McNaughtan and ALI) require a causal connection between a "mental disease or defect" and the functional cognitive and/or volitional impairment. Because the analysis in these cases is postdictive, establishing the relation of the two elements poses some unique challenges. In assessing most legal competencies, the exam­iner first assesses a current functional deficit, then hypothesizes and tests potential causes. The law is concerned specifically with the defendant's mental state at the time of the offense, rendering this approach less practical. Unlike functional abilities in other legal competencies, the deficits neither stand alone nor are assessed alone. The deficits also do not typically pro­vide evidence of the disorder; rather, the predicate mental condition pro­vides evidence for the deficits.

The matter of what constitutes a "mental disease or defect" has been the subject of some debate. Typically, courts have determined that the condition must be characterized by a severe disorder of thought or mood and, typically, must interfere with one's capacity accurately to perceive reality. What is most important for the examiner to consider is that the standard of "mental disease or defect" is established by the fact finder, not by clinical opinion or convention. The inclusion of a syndrome in the DSM-IV (American Psychiatric Association, 1994) is neither necessary nor sufficient to satisfy the legal standard.

The definition of "mental disease or defect" in the ALI standard specifically excludes abnormalities "manifested only by repeated criminal or otherwise antisocial conduct." Arguably, this would exclude a diagno­sis like Antisocial Personality Disorder, as it is currently defined in the DSM-IV. Similarly, the Criminal Justice Mental Health Standards project (American Bar Association, 1989) noted that, generally, "defects of charac­ter or strong passion" should not satisfy the "mental disease" require­ments of the insanity defense. If they were included, the report said, "the defense would have no threshold at all; every abnormal defendant—and every normal defendant who became abnormally impassioned—could be said to have a 'mental disease'" (American Bar Association, 1989, p. 346).

Traditionally, voluntary intoxication (influence of alcohol or drugs) at the time of the offense has not been accepted as a condition fulfilling the "mental disease or defect" element of the insanity defense (American Bar Association, 1989). Circumstances in which alcohol or drug use might be relevant to the predicate mental condition, however, include potentially the alcohol-induced precipitation of a psychotic episode in a person already predisposed, or chronic alcoholism that has produced organic brain pathology (which itself is the mental disease resulting in incapaci­ties relevant for the insanity defense).

The question of the presence or absence of a mental disease or defect is often the focal point of disagreement between different examiners in insanity cases. Data concerning the defendant's actual behavior typically do not produce much disagreement. No objective data, however, can be available on the defendant's actual perception of wrongfulness or ability not to act in a certain way. Evidence for impairment in cognitive or voli­tional capacity can be inferred only from history and behavior around the time of the offense. Present abilities are less relevant here.

Differences occur in the inferences, explanations, or causal attribu­tions for the defendant's behavior. For example, if a defendant burned a victim's body, one expert might infer that this behavior was consistent with the subject's delusional belief that the victim was possessed by demons that needed to be "purged," while another might infer that this was done to destroy evidence of the crime. The same behavior could be used by different experts to argue for cognitive or volitional impairment (arising from a mental disease), and for the existence of a rational process indicating that the defendant was not disorganized or mentally ill. Thus, the causal element (mental disease or defect) is almost always inferred from the behavior. In contrast to the inferences required for most legal competencies, the judgments and interpretations required for insanity evaluations rely more heavily on theoretical speculation.

Interactive Component

Application of the insanity doctrine does not seem to require a con­sideration of the degree of a defendant's abilities in contrast to the demands of the defendant's particular external circumstances. Environmental circumstances certainly are considered in a number of ways in insanity cases, especially as explanations for the mental disorder, as triggering events for the offensive act, or as precipitants of heightened affective arousal. Nevertheless, insanity decisions seem to focus primarily on the defendant's presumed perceptions or interpretations of events rather than on the events themselves. Thus if two psychotic defendants both had commands from God to kill, but external conditions subjected one but not the other to extreme stress before the command or during the act, logically the degree of external stressors would make no difference in the application of the insanity standard as long as evidence for the disease and arguments for the delusions themselves were convincing.

Therefore, insanity cases seem not to require the same types of inter­active information as the legal competencies. That is, the fact finder is not expected to consider the degree of congruency between the individual's capacities and the demands placed on the individual by external condi­tions. The insanity decision depends on assumptions about the character­istics of the defendant alone.

Judgmental and Dispositional Components

The "ultimate issue" issue is perhaps most debated in insanity cases (Rogers & Ewing, 1989). The dispute is about whether it is appropriate for mental health professionals to offer a clinical opinion that the defendant was or was not insane at the time of the offense, was or was not criminally responsible, or is recommended as NGRI.

As noted in Chapter 1 and in discussions of other specific legal com­petencies, there is arguably a line between clinical and legal issues that should be drawn at the dispositive issue of sanity or insanity. A finding that one is insane in a criminal proceeding implies, by definition, that one should not be held criminally responsible or blameworthy for an act that she or he committed. Some professionals and scholars have argued that this threshold decision is a moral or normative judgment and not a clinical one. The argument is that mental health professionals may have expertise and offer evidence regarding a defendant's mental condition, and poten­tial impairments in functional cognitive and volitional capacities, but that addressing the threshold (whether the defendant was "crazy enough" or whether the nature and severity of the impairments were sufficient that he/she should not be held morally or criminally blameworthy) is right­fully a question only for the factfinder (judge or jury), not the expert. Accordingly, critics, including the American Psychiatric Association (1982) and the American Bar Association (1989), assert that mental health professionals should not testify as experts to the ultimate issue of sanity or insanity. As noted earlier, Federal Rules of Evidence (704b), as well as some states, do not allow such testimony by experts in insanity cases.

Other scholars and many forensic practitioners, however, believe that offering ultimate issue testimony on the issue of a defendant's sanity is entirely appropriate and, in fact, may help to reduce confusion or lack of clarity about the substance of one's opinions (Rogers & Ewing, 1989). In support of their argument, they point to empirical studies showing that the form of an expert's testimony—ultimate vs. non-ultimate issue—does not significantly affect verdicts or decisions (Fulero & Finkel, 1991; Rogers, Bagby, Crouch, & Cutler, 1990). They support the permissibility of "reliable and well-substantiated testimony that speaks to the ultimate issue" (Rogers & Shuman, 2000, p. 46). Moreover, among a national sam­ple of experienced forensic psychologists and psychiatrists, only 17-19% held the position that offering such an opinion in a report would be inap­propriate (Borum & Grisso, 1996).

All mental health professionals conducting insanity assessments must determine for themselves the propriety of offering an opinion on the ultimate legal issue. That decision, however, should be informed by a careful analysis of the ethical, professional and empirical arguments on both sides of the debate.