Chapter 6 Confessions Historical and background and Current Legal Standing o Many confessions don t come spontaneously  Result

from intense police questioning/interrogation y Promises, threats, harassment, and even brutality o Miranda v. Arizona  Supreme court held that a confession resulting from an in custody interrogation was admissible only, if in addition to meeting the standard for voluntariness, it had been obtained after the police had read Miranda warnings .(pg 175 double check)  Did not solve all problems with validity of confessions  Many waive their Miranda rights, and after a suspect voluntarily enters the interrogation room investigators can use any # of tactics to obtain a confession y Colorado v. Connelly o Mental and psychological limitations/problems don t necessarily lead to the conclusion that the confession was involuntary y Jackson v. Denno o Criminal defendants are entitled to pretrial hearing that determines whether any confession made to officials was voluntary and not because of coercion  This explicitly acknowledged the possibility of coerced confessions Whittling Away at Miranda o Miranda v. Arizona  One of the most controversial criminal procedure decisions  Dickerson v. U.s y Miranda was an illegitimate exercise of judicial power that freed thousands of guilty defendants on technicalities y Miranda warnings don t significantly deter people from confessing and that Miranda has become part of the national culture  1) Confessions that violate Miranda may be used to impeach a defendant  2) Confessions by defendants who don t fully the warnings may still be admissible  3) To stop and interrogation, a request for lawyer must be unequivocal  4) Miranda doesn t apply unless the suspect is in the custody of the police  5) Miranda doesn t apply unless the defendant is being interrogated  6) The police aren t required to tell the defendant anything more than what is combined in the Miranda warnings




7) The police can mislead defendants about the evidence in order to get them to confess  8) Miranda warnings are not required in situations in which public safety is a concern The Validity of Confession of Evidence o False negatives  When guilty suspects fail to confess o False positives  When innocent suspects confess o Proving that a confession is false  1) a suspect could confess to a crime that didn t occur  2) a situation where it was physically impossible for the crime to occur  3)the actual perpetrator is identified and his guilt is objectively established  4) when there is scientific evidence (like DNA) that establishes the defendants innocence Inside the Interrogation Room o No 3rd party tactics more like psychologically oriented coercion  Less blatant, may be more insidious o Criminal Interrogation and Confessions  Outlines an interviewing/interrogating protocol that can be used to elicit statements from witnesses  Techniques of social influences y Small, bare, soundproof room sued for interrogating o Devoid of sensory stimulation and distractions o Invade the suspects personal space during questioning y Interview begin with confronting the suspect with the suspicion of their guilt o Emphasize/exaggerate the strength of evidence against them o Coerced-compliant false confessions  Suspects confess in order to escape or avoid continuing aversive interrogation or to gain some sort of promised reward o Coerced-internalized false confessions  Related to the manipulative techniques that were used during the interrogation  Can be directly related to the manipulative techniques that were used during the interrogation o Behavioral Confirmation  Self fulfilling prophecy  Target person (suspect) behaves in ways that support the initial belief o Interrogators who assumed that suspects were guilty used more guilt based interrogative techniques  Underestimated risks of behavioral confirmation in actual interrogations o Source Misattribution 

- - Mistaking memories that arise primarily from one s thoughts and images for memories that arise primarily from one s thoughts and images for memories that come from actual. experienced events  Imagining events in their life can increase people s belief in the occurrence events that didn t occur o Priniciples of adult interrogation are just as applicable to use on juveniles  Juveniles sometimes confess falsely Inside the Courtroom o If a defendant confesses while under sever interrogation. that confession may be viewed as either as a reflection of the defendants true guilt or as means of avoiding the negative consequences of silence o Discounting principle  Have more doubts about the truth and reliability of a confession elicited by threat than about one made in the absence of threat y Give less weight to the confession because it was generated by the threat of force o Fundamental Attribution Error  When making attributions about other people s behavior they don t give significant importance to the external situation as a determinant  Instead they believe the behavior is caused by stable internal factors unique to the actor o Positive Coercion Bias  When confessions are non-coercively encouraged by interrogators who sympathetically attempt to minimize the severity of the charges or the culpability of suspects during questioning  Willing to vote guilty even when they see the confessions as being involuntary Reforming the System to Prevent False Confessions o Many advocate the recording of all police interrogations o More than half of all alw enforcement agencies record at least some of their interrogations o Filming can be an effective tool but it must be used judiciously  Entrapment In efforts to catch criminals police may induce law-abiding citizens to commit crimes they otherwise wouldn t have committed o This practice is called entrapment Defendants can claim entrapment under two explanations o 1) they were induced to break the law by a person/persons working for the police o 2) they weren t predisposed to break that law  Police created a crime that wouldn t have otherwise occurred Proactive law enforcement necessitates deception - - .

Twigg o Most often cited authority for the due process defense  Speed Lab y Government too involved government has manufactured the drug the defendants were accused of conspiring to sell o Supplying the person who harbors general criminal tendencies with the means and opportunity to commit a crime that they wouldn t have otherwise committed is unacceptable Average citizens reaction to the defense of entrapment? o 1) difficulty understanding the judges definitions of entrapment o 2) when evidence indicates that the defendant may have been ready to commit the offense in the absence of inducement and when he has a prior conviction he is more likely to be convicted o Most likely to acquit the defendant in the scenario that described low predisposition and high inducement . he/she was predisposed to commit it anyway  If so. v.S. U.S o trap for the unwary innocent and the trap for the unwary criminal Objective Approach o Focuses on the situational factors that may have prompted commission of a crime Subjective Approach o Focuses on the offender s subjective state of mind rather than the objective facts of the police methods  Must prove they were induced or persuaded to commit the crime Respond to the claim of Entrapment o 1) the police didn t induce the defendant to commit the offense but rather just provided an opportunity o 2) even though police induced the defendant to commit the offense. whether the predisposition originated before or after police contacts y Jacobson v. U.S o Child porno U.- - - - Sherman v.

Chapter 7 Steps Between Arrest and Trial Initial Appearance o Taken soon after the arrest o Key players: judge and defense counsel o 4th amendment requires that the arrestee be brought before the judge w/in 48hrs of his arrest  We inherited this from England o Primary purpose  Judge review the evidence summarized by the prosecutor to determine whether probable cause exists for believing the suspects committed the crimes charged Preliminary Hearing o One purpose: to filter out those cases in which the prosecutions proof is insufficient o Hearsay  One witness may summarized what another said earlier  Is admissible at this hearing  A victims account of a crime may be presented thru the testimony of the investigating officer o Cross examination by defense lawyers is limited to the issue of probable cause  Defense lawyers often waive prelim because of publicity it may receive and make it difficult to find an impartial jury o At times serves an opportunity for defense to seize up prosecution s case and their chief witnesses o Judge bind defendant to grand jury. compels reluctant witnesses to testify. protecting those accused of a crime from unjust prosecution o Listens to the witnesses called in by prosecutor o In all states the defendant may testify with the consent of the grand jury  Often interested in both sides of the story and may reward testifying defendants by refusing to indict Arraignment - - - . reviewed the amount of bail originally set Grand Jury o Meets in private w/prosecutor to investigate criminal activity and return indictments  Indictments: a complaint prepared and signed by the prosecutor describing the crime charged y Written by grand jury accusing one or more persons of one or more crimes y Inform defendants of the nature of the charges against them o Gives them an opportunity to prepare a defense o Issues subpoenas. or reduce charges.

- Judge makes sure the defendant has an attorney and appoints one if necessary Indictment read to the defendant and then asked to plead guilty or not guilty Provide opportunity for discovery  Which means that the defendants attorney gets to examine some of the evidence against the defendant o Also opportunity for plea bargaining Discovery and Pretrial Motions o Defendants and their attorneys want to be aware of the materials the prosecution will use to prove its case o Exculpatory evidence  Tends to show the defendant to not be guilty or suggests that prosecution witnesses are not credible o Brady V. pretrial motions are filed by both sides  Defense usually wants dismissal  Both seek favorable rulings on admissibility of evidence and explore the possibility of a plea bargain o Most common pretrial motions  1) Defense motion for separate trials y If 2 people are jointly indicted one of them can be counted on to move for a separate trial  2) Defense motion to sever counts y Defendant may move for separate trials on different offenses y Jury will be tempted to combine evidence and introduce on separate crimes to find defendant guilty  3) Defense motion for change of venue y Community opinion (usually product of prejudice pretrial publicity) make it impossible for fair jury  4)Defense motion to dismiss on speedy trial grounds o o o . Maryland prosecution must disclose to the defense evidence in its possession favorable to the defendant o The extent to which discovery occurs is determined by local statues not constitutional right o Many cases prosecutors provide open file discovery even tho they re not obligated to do so  Encourages a guilty plea and avoids a trial o Discovery 2 way street  Defense turns over materials that the prosecution is also required to turn over  Give pretrial notice to give the state an opportunity to investigate the claim and avoid being surprised at trial y State required to notify the defendant of witnesses it would call to refute the defense o During discovery phase.

    Delay in trial is cause for dismissal if prosecutor was attempting to obtain an unfair advantage and defendant was harmed by the delay o Like cruicial defense witness died y Dismissals with prejudice are rarely granted 5) Defense motion to dismiss on grounds of selective prosecution y Many participants but only a few are charged y Selective enforcement and prosecution are unconstitutional y Drug trafficking crimes y 12% of U.S population is black and 90% of defendants prosecuted in federal courts for trafficking crack coke are black o Mere disparity cant claim defendants were selected for prosecution based on race 6) Defense motion to dismiss on double jeopardy grounds y 5th amendment: no person shall be subject for the same offense to be twice put in jeopardy of life or limb o Only and only one fair chance to convict o Cant be retried o Doesn t protect against 2nd prosecutions for some crime by another state or by federal government after a state prosecution 7) Defense motion to suppress evidence on 4th amendment grounds y Exclusionary rule o Requires court to suppress evidence obtained in violation of defendants right under 4th amendment to be free from unreasonable search and seizures 8) Defense motion to suppress a confession or other statement by defendant y 5th amendment protects against self incrimination y Typically defense counsel files a motion alleging the confession was obtained in violation of the defendant s constitutional rights o Prosecutor files written response and court holds hearing at which defendant and police give their versions of what happened under which the confession was obtained o Who is telling the truth usually ruled in favor of the police y 9) Discovery motions o When a dispute arises in the discovery process either side can ask the trial court for assistance y 10) Motions in limine o Most common pretrial motions are those that seek advance rulings on evidentiary issues that will arise at trial o Pretrial ruling on a certain piece of evidence to plan the opening statement y .

seriousness of defense* Can High Risk Defendants Be Identified? o Judges have difficulty knowing which defendants are dangerous and which can be trusted - - - . not a federal law but on the books  Race and gender influence pretrial detention y Hispanic and AA s  Ability to post bail y Minority defendants less able to do so  Female more likely to be released than males o Best predictor of judicial behavior on the bail question if what the prosecutor asks for  Prosecutors request  Position of the police  Actions of previous court *these are all better predictors than other models incorporsting various factors thought to be relevant to the bail setting decision* **E.o Motion in Limine  Simply a request for a pretrial ruling  Judges not constitutionally required to grant this but most will cooperate with attorneys who are trying to avoid mid trial problems Decision to Set Bail Released on Recognizance (ROR) o Minor offenders  Their promise to appear Purpose of Bail o Determines whether they re detained or released before trial o When bail is higher than what they can afford they have no choice but to remain in jail What Considerations Affect the Decision to Set Bail o Traditionally. defendants record. The degree of risk that the defendant will not appear for their trial o Around 1970 increase the use of preventive detention  Detention of arrested persons who pose a risk of flight or dangerous o Bail Reform Act of 1984  Ensure that judges consider community safety when they set bail for criminal defendants o Preventative Detention of Defendants  If prosecutors could establish probable cause that the defendants committed the crimes charged and convince judge that safety of community or other person would be jeopardized if defendant released on bail  Based on the grounds that theyre dangerous.g.

. and uncertainty of trial - - .- Assessing risks and predicting violent behavior are difficult tasks and difficult making accurate long term predictions o Goldkamp and Gottfredson Study  Within 90 days of release. erodes family and community ties o Opposition to Pretrial Detention  Conflicts with society fundamental assumption that youre innocent until proven guilty o Plea Bargaining Sometimes pretrial detention is used as a bargaining chip to encourage/coerce a guilty plea No better example of the dilemma between truth and conflict resolution like plea bargaining 85% of criminal cases end between arrest and trial o Primarily when the defendant pleads guilty to some charge usually in exchange for a concession by the prosecutor  Both mundane and serious cases Some defendants plead guilty with no promise of leniency because they chose to end the process as quickly as possible and get on w/serving their sentences o However most plead guilty as a result of negotiation  Part of the bargain is admission of guilt Prosecutors offer plea deals cause they worry they might have trouble w/their evidence at trial Many states allow deferred prosecution for minor crimes o 1st time offenders placed on probation and have charges against them dismissed if they stay out of trouble during probation  Saves time. expense. they had previously had failed to show up. 17% had been arrested either for a new crime or for failing to appear as required in court  Factors that predicted new offense/failure to appear in court y If defendant lived alone. arresting officer noted factors at time of arrested suggesting a risk of fleeting Does Pretrial Release Affect Trial Outcome? o Yes o Defendants who are detained in jail are more likely to plead guilty or be convicted and to receive higher sentences than those who can afford bail.even when seriousness and evidence against them are the same o Some suggest that prosecutors use pretrial detention as a resource to encourage/coerce guilty pleas o Likely to cost defendants their jobs = harder to pay for attorney threat of it may make them more likely to plead guilty o Jailed defendants cant meet with lawyers and less time to prepare for trial. less access to records and witnesses. orginal charge was for robbery or property offense.

intelligent.S Sentencing Comission s Sentencing Guidelines o Assign an offense level to each offense  Adjusting up or down according to what happened o Defendant assigned a criminal history category o presumptive sentence range  However if defendant accepts responsibility they re entitled to a 2 level decrease in the offense level o Court may not use these when the defendant has provided assistance in the investigation aka snitched Evaluations of Plea Bargaining o Supreme Court calls it an essential component of the administration of justice o Guilty pleas must be voluntary.- - - - - Charge Bargaining o Common procedure o Prosecutor drops some charges in return for a guilty plea o overcharging effective  More likely to accept a plea bargain when relatively many charges had been filed against them Sentence Bargaining o Plea bargaining may take this form o Prosecutors recommend reduced sentences in return for guilty pleas o Defendants try to negotiate a plea to get less severe punishment if they were to go to trial Prosecutors are motivated for plea bargaining because o 1) to dispose of cases in which the evidence against the defendant is weak or defense attorney is a formidable foe o 2) to obtain the testimony of one defendant against a more culpable or infamous codefendant o 3) to expedite the flow of cases for an overworked staff o 4) maintain cordial working relationship with defense attorneys from whom they might want favors from in the future o 5) avoid trials that might be unpopular because defendant is well liked figure in the community U. and knowing o Plea can be voluntary even if encouraged by threat of more charges should they insist on going to trial o Remains a controversial procedure o Advocates justify by  1)admission of guilt is 1st step of rehabilitation  2) guilty pleas relieve backlogged cases  3) outcomes reached promptly and with finality  4)other participants benefit (officers. etc)  5) defendant s cooperation my facilitate prosecution of others . victims.

- Critics urge abolishment .. enhancing the value of the benefit as much possible without misstating facts y Guilty pleas eliminate uncertainty of outcome of trial  2) offer prosecutor the chance to do the right thing for a client who deserves a break  Many prosecutors are open to alternatives to jail o Its wrong for someone to be able to plead guilty cause the system lacks the resources to handle the case Ethical Issues in Plea Bargaining o May work against the long range goal of achieving justice o May prevent families of victims from seeing the defendant get justice or hearing them acknowledge full responsibility for their offenses o The use of criminals as prosecution witnesses  Occurs when lawbreakers turn states evidence to avoid prosecution or to reduce their own penalties y Ex: drug trafficking.  1) improper sentences  2) encourages to surrender constitutional rights  3) prosecutors exert too much power in negotiating guilty pleas  4) process is private and encourages shady deals  5) innocent defendants maye feel coerced to please guilty because they fear the more severe consequences of being convicted by a jury o Not as evil or essential as both sides claim  Rate of plea bargain are consistent across rural and urban jurisdictions o Risk of innocent parties pleading guilty is uncertain  Guilty parties are more likely to plea-bargain than are the innocent o Defense attorneys appeal plea bargains to prosecutors by . etc o Common problem  Local media releases incriminating info that is later ruled as inadmissible at a trial y Can bias the opinion about the defendant . Michael Jackson. the mule has no info and doesn t get a break  Reward informants to find/convict perpetrators of more heinous crimes o Pretrial Publicity Conflicting Rights o 1st amendment: freedom of speech  Written and spoken word. public trial before an impartial jury o Press published info that can threaten a defendant s right to a trial by impartial jurors  Ex: Martha Stewart..  1) Trying to offer something to benefit the prosecutor. press and individuals th o 6 amendment: right to a speedy. Catholic Priests.

regardless if theyre being truthful or not o Defendants don t have the constitutional right to ask prospective jurors if they ve been exposed to pretrial publicity Effects of Pretrial Publicity o Experimental Studies  Participants are exposed (or not exposed) to some form of publicity and then asked to assume the role of juror in a simulated trial . credibility.- - y Difficult to disregard previously acquired info  Local new coverage in small towns have a greater impact than in large cities o Cases w/extensive pretrial publicity courts must answer 2 basic questions  1) does publicity threaten the fairness of a defendants trial?  2) if the answer to above is yes what steps should be taken to remedy the situation? Court Decisions on Pretrial Publicity o free press/fair trial controversy has several phases o Phase 1  Question of pretrial publicity was evaluated in terms of effects of jurors reported it to have on their minds o Phase 2  Whether jurors own assurances of impartiality in the face of massive amounts of prejudicial publicity constituted a sufficient protection for defendants subjected to this publicity  Exposure to news that included info strongly pointing to the defendant s guilt was a violation of due process o Phase 3  Concerned with various preventive or remedial techniques for adverse pretrial publicity  Judge to order the press not to publish pretrial info likely to be prejudicial aka a Gag Order y Press cant be barred from attending and reporting a trial because of 1st amendment (guarantees public access to criminal trials) y Press can be excluded from pretrial hearings in which prejudicial material might be an issue o Phase 4  presumption of correctness should be given to the trial judge s opinion because being present at the trial. the judge was in a better position to evaluate the demeanor. and competence of prospective jurors o Issue is that there are many reasons why ppl may not admit the full measure of their prejudice in public o Evaluation Apprehension  Provide answers that they perceive the judge wants to hear.

o Points to the conclusion that jurors may adversely be affected by pretrial publicity and that can prejudice them in surprising ways  Researcher manipulates presence of publicity and measures impact on juror decisions y Recently looked at effects of varying amounts of negative info in pretrial publicity  These studies generally show the pretrial publicity affect jurors evaluations of defendants character. and their final verdicts y Also defendant will be more likely to find liable in the aftermath of negative pretrial information  TV publicity has the greatest biasing impact but combined TV and newspaper had the greatest impact of all y People usually generally unaware their opinions have been biased  Specific Pretrial Publicity y Showing that case specific information made available prior ro trial can affect sentiments of jurors in that trial  General Pretrial Publicity y Media coverage of issues not specifically related to a particular case but relevant to the issues at hand y Probably works by transferring preexisting prejudices and stereotypes about categories of ppl to a particular defendant in a trial setting o Racial and ethnic most common Field Studies  Consistently find that ppl exposed to pretrial publicity posses more knowledge about events in question and more likely to have prejudged the case. their perception of defendants culpability. more knowledgeable of incriminating facts that would be inadmissible at the trial y Move trial? o Ex: Oklahoma City Bombing  Participants typically asked about their knowledge of the crime in question. pretrial sentiments of guilt. their feelings of liking and sympathy of them. and their ability to be impartial in light of their knowledge  Generic prejudices can also be endangered by publicity about jury damage awards and tort reform in civil cases  Survey studies have several strengths y Use large representative samples of prospective jurors y Rely on naturally occurring publicity about actual cases  Survey studies also have several weaknesses y Data is correlational in nature o Cant indicate direction of relationship b/w exposure of publicity and prejudice y .

inconvenient. time consuming so courts reluctant to use them  Trials should be moved to locations where the demo are similar to those of original venue o When pretrial contimaination is extensive a professionally conducted public opinion survey is the technique of choice for evaluating the degree of prejudice in the community y Change of Venue Surveys .- - Courts shouldn t conclude that pretrial publicity biases jurors because it saffects their attitudes to be truly prejudicial it must also affect their verdicts o Prospective jurors influenced by other things  Juror has direct ot indirect interest in outcome of the trial or perceives there is a strong community sentiment in favor of a particular outcome in the case Remedies for the Effects of Pretrial Publicity o 1) Continuance  Trial can be postponed for a later date with the expectation that the passage of time will lessen the effects of prejudicial material  May decrease jurors recall of factual evidence and use emotional instead (biasing) o 2) Expanded Voir Dire  Questioning of potential jurors  Can be valuable but not always adequate  Can hide their true feelings if they choose  Allows attorney to make informed decisions about which jurors to excuse o 3) Judicial Instructions  Involves instruction from a judge to the jurors to base their decision on the evidence rather than on nonevidentiary info y May have unintended consequence of drawing their attention to it (bad) o Boomerang effect o 4) Imported Jurors  Imported jurors from another county  Judges often reluctant to do this because its inconvenient and expensive ** first 3 ineffective based on research and 4th is seen as not practical** Once the idea that someone is guilty it may become an organizing principle for the processing of additional information about the person o Also if people try to suppress forbidden thoughts they often find that the thoughts become stronger/more frequent o 5) Change of Venue  Most extreme remedy for pretrial prejudice  Expensive.

1) Planning the survey and designing the questionnaire o Scripts written for telephone interviews 2) Training the interviewers o Administer questionnaire in standardized fashion o Interviewers. and meaning  This way is stronger . if poss. results. original county and a comparison county 4) Presenting the results o Prepare an affidavit  Written report sworn to be truthful o OR expert tstifies in person about the design. be blind to the purpose of survey 3) Drawing the sample o Must be drawn at random for the results to be valid o Surveyed in e2 places.

communicating with their attorneys. psychiatry. and making legally relevant decisions One fundamental principle o Criminal proceedings should not continue against someone who cannot understand their nature and purpose Have to be competent because o Competent defendants must be able to understand the charges against them o Punishment of convicted is morally acceptable only if they understand why theyre being punished o Have capacity to defend themselves against the charges of the state Adjunctive Competence o Competence to Stand Trial  Sufficient present ability to consult with one s attorney with a reasonable degree of rational understanding amd as well as factual understanding o Competence to Plead Guilty  Would require defendants understand the alternatives they face and have the ability to make the reasoned choice among them o Dusky Standard is what the majority use for both competencies o No plea of guilty (nolo contendere)  Should be accepted from a defendant who is mentally incompetent to enter a plea of guilty o Adjunctive competence  A better concept for describing the multiple abilities that criminal defendants are expected to exercise in diff legal contexts o Foundational Competence - - - .Chapter 8 The Scope of Forensic Psychology Use knowledge and techniques from psychology. and other behave sciences to answer q s about indiv involved in legal proceedings Of expert witnesses called 40% were in the mental health field The law permits and encourages the use of expert testimony in a host of areas Daubert Standard o Suggests that for expert testimony to be admitted the expert should have relied on methods and knowledge that are scientifically based o This requirement also applies to opinions that are tied to the technical or professional skills of practitioners and clinicians Competence Refers to defendants capacity to function meaningfully and knowingly in a legal proceeding o If declared incompetent they are seriously deficient in one or more abilities  Like understanding the legal system. appreciating their role in proceedings.

- - Question of whether the defendant has the capacity to assist counsel 3 requirements y 1) ability to understand the basic elements of the adversary system y 2) ability to relate to one s attorney information that is relevant to the case y 3) ability to understand one s situation as criminal defendant o Decisional Competence  4 interrelated abilities  1) understanding info relevant to decisions the defendant must make  2) thinking rationally about the alternatives involved  3) appreciating he specific legal questions one must resolve  4) making and expressing a choice about one s legal alternatives o This is standard across all American courts  Basic criteria for competence  These refer to PRESENT abilities rather than mental state of the defendant at the time Evaluating Competence o Physicians. one hr interview o IFI  Specific legal areas o GCGT  Highly reliable. Connecticut. Pennsylvania. social workers all authorized o Presence of mental illness/retardation doesn t guarantee they ll be found imcompetant to stand trial o Current competent evaluations focus on the defendant s present ability to function adequately in the legal process o CST Competency Screening Test  22 item sentence completion tasl  Quickly identified those who are competent o CAI  More indepth. psychiatrists. psychologists. and Rhode Island y Higher standard of proof: clear cut and convincing Results of Competence Evaluations o About 70% of those referred for evaluation are found to be competent to stand trial   . 3 dimensions o Malingering  Faking or grossly exaggerating mental illness  18%  M-FAST: identify those who are faking mental disorders o State can require defendant to prove that they re incompetent  Not Oklahoma.

Montana. provide this decision is made competently o Ex: Colin Fergurson o Competency to Refuse Insanity Defense o Competence to be sentenced  Do they understand the punishment and the reasons why its being imposed? o The Insanity Defense Harder to find someone not guilty by reason of insanity in some states than others because of diff definitions of insanity o Idaho.- - - Judges seldom disagree with clinicians decisions about competence and opposing attporney will often stipulate (agree without further examination) to their findings o IST Defendants: For crimes that aren t serious. Utah abolished insanity defense  They do allow info about mental condition at the time of the offense . sometimes in exchange for them to receive treatment o Most defendants have their adjunctive competency restored with about 6 months of treatment o Many state permit the defendant to be hospitalized for a period up to the maximum sentence they could receive if they were convicted of charges  They can be found unrestorably competent y State must show person is mentally ill and danger to themselves or others or so disabled they cannot care for themselves y Some states confine incompetent individuals for indefinite periods Amensia and Competence to Stand Trial o Law doesn t assume per se that amnesia is incapacitating  Case-by-case basis y Extent of amnesia to consult and assist counsel y Ability to testify at trial y Extent that evidence reconstructed by others y Extent prosecution assisted in that reconstruction o Must judges believe amnesia can be easily faked Competent with Medication. Kansas. Imcompetent without o Meds have been treatment of choice because its assumed it s the best for restoring competence o If medicated will they be found to be competent to stand trial even though the medication might undercut a defense such as insanity? Other competence issues o Waive Miranda Rights  6th amendment y Right to be represented by counsel when in police custody y Have right to waive counsel and represent yourself at trial. the charges are occasionally dropped.

cognitive determinats of criminal actions  Also includes both a cognitive and volitional element making the inability to control ones actions a sufficient criterion by itself for insanity Insanity Reform Act o Prohibited experts from giving ultimate opinions about insanity .- - - - - Must determine whether they were insane at the time of the crime. possibly months or years before Fewer instruments designed to specifically asses insanity than to asses competency o RCRAS  Only formal instrument w/some proven reliability and validity for insanity evaluations Insanity is a legal concept. didn t know what they were doing was wrong. posses a sufficient degree of reason to be responsible for his crime until the contrary can be proved to their satisfaction. or the quality/nature of it o Criticized for being too restrictive Brawner Rule o Defendant is not responsible for criminal conduct if at the time the conduct was a result of mental disease/defect  Appreciate criminality of their conduct o This standard alloes consideration to whether mentally ill defendants have the capacity to understand the nature of their acts or to behave in a lawful way  Incorporates emotional. defense on grounds of insanity must be clearly proved that at the time of committing the act  Disease of mind. not a medical or psychological one Rationale for Insanity Defense o Allowing someone to plead not guilty by reason of insanity reflects a fundamental belief that society shouldn t punish people who don t know what they re doing or incapable of controlling their conduct o Judgment that someone is not competent doesn t make the individual not responsible for an illegal act  It only delays the determination of whether the individual is guilty  Competency refers to the defendents relevant legal capacities at the time of the proceeding  Insanity refers to the defendants mental state at the time the offense was committed o If pleading insanity you have to present evidence that would disprove the presumption of criminal responsibility in their case  Known as affirmative defense o Mens Rea  Mental state of knowing the nature and quality of the forbidden act M Naughten Rule o In all cases every man is presumed to be sane.

5% of insanity acquitees had been charged with murder o 64% had been charged with crimes against persons o Majority have been diagnosed as psychotic o Don t appear crafty  Significantly lower IQ scores than those who pleaded insanity but were convicted o 1 out of 4 or 5 defendants being assessed for insanity engages in at least moderate malingering mental disorders  Research has found y Most NGRI defendants have record of prior arrests and convictions but this rate doesn t exceed that of other felons y Come from lower SES y Prior history of psychiatric hospitalizations and been diagnosed with serious forms of mental illness y Previously had been found incompetent to stand trial y Female backgrounds similar to male counterparts o The more serious the crime the longer the confinement for those found NGRI o Conditional Release  Monitored and supervised by mental health personnel o Are quickly committed to an institution following their acquittal Current Criticisms of Insanity Defense o Confinement is indeterminate for NGRI whereas criminal convictions are determinate Revisions and Reforms of Insanity Defense o Guilty but Mentally Ill (GBMI)  Typically will sentence as the same defendant found guilty of same offense  Intent for prisoner to start term in hospital then transferred to prison after treatment is completed y Problems over overcrowding at hospitals. some sent straight to prison with no treatment Diminished Capacity Defense o Legal doctrine that applies to defendants who lack the ability to commit a crime purposely and knowingly  Usually involves evidence that they suffer a mental disorder o .- - - - Placed on the defendant the burden to prove insanity by clear and convincing evidence replacing that the prosecution prove a defendants sanity beyond reasonable doubt Empirical Evidence to Insanity Defense o Jurors only 51% correct on series of questions testing their comprehension about the M Naghten rule o Thousands of seriously mentally ill people live disoriented and disrupted lived byt they never murder anyone NGRI (not guilty by reason of insanity) o 22.

 Differs from insanity because It focuses on whether defendants had the state of mind to act w/purpose and intent to commit a crime y That s to think through the consequences of their contemplated actions o Not one whether they knew the crime was wrong or control their behavior y Offenders should be convicted of the crime that matches their mental state .

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