Under the American Jurisdiction
In the United States, use of the insanity defense is rare. The insanity defense is based on evaluations by forensic mental health professionals with the appropriate test according to the jurisdiction. Their testimony guides the Jury but they are not allowed to testify to the accused’s criminal responsibility as this is a matter for the Jury to decide. Similarly, mental health practioners are restrained from making a judgment on the issue of whether the defendant is or is not insane or what is known as the ultimate issue.
In the United States, the defense of diminished responsibility/capacity is applicable to more circumstances than the insanity defense.
Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in habeas petition to pursue an alternative. However, other
rulings have allowed it. In state V. Conelly.For example, the petitioner who had originally been found not guilty by reason of insanity and committed for ten years to the jurisdiction of psychiatric security Review Board filed a prose writ of habeas corpus and the court vacated his insanity acquittal. He was granted a new trial and found guilty of the original charges, receiving a prison sentence of 40 years.
Where the defendant voluntarily wishes to forgo the defense, he should be allowed to. In the landmark case of Frendak V. United states, the court rules that the insanity defense cannot be imposed upon on unwilling defendant if an intelligent defendant voluntarily wishes to forgo the defense.
Those found to have been not guilty by reason of insanity are generally then required to undergo psychiatric treatment except in the case of temporary insanity. Defendants found not guilty by reason of insanity are generally placed in a mental institution until they are determined not to be a threat.
Under the American Jurisdiction, a person may be found not guilty by reason of insanity if at the time of committing the act he 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 if he did know it that he did not know that what he was doing was wrong. This test is also referred to as the right/wrong test.
The insanity test is recognized in most U.S states with the exception of mortana, Kansas, Idaho and utah.
Canadian Jurisdiction Insanity
In the criminal law of Canada, the defense of mental disorder is a legal defense by excuse which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions. The defense of mental disorder is in section 16 of the criminal code of Canada which states in its part: “No person is criminally responsible for an act committed or an omission made while sufferring from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
To establish a claim of mental disorder the party raising the issue must show on a balance of probalities. First that the person who committed the act was suffering from a “disease of the mind” and second that at the time of the offence they were either
i) Unable to appreciate the nature quality of the act or
ii) did not know it was wrong.
Once a person is found not criminally responsible, he or she will have a hearing by a review board within 45days (90 days if the court extends the delay). A review board to established under part xx.1 of the criminal code of Canada and is composed of at least three members; a person who is a judge or eligible to be a judge, a psychiatrist and another medical expert.
Parties at a review board hearing are usually the accursed, the crown and the hospital responsible for the supervision or assessment of both accursed. A review board is responsible for both accursed persons found not criminally responsible or accursed persons found unfit to stand trial on account of mental disorder. A review board must consider two questions:
1)whether the accursed is a significant threat to the safety of the public “and
2)if so what is the “least onerous and least restrictive”.Restrictionson the liberty of the accused should be an order to mitigate such a threat. Where the review board is unable to conclude that the accused is a significant threat to the safety of the public, the review board must grant the accused an absolute discharge, an order essentially terminating the jurisdiction of the criminal law over the accused.
Otherwise the review board must order that the accused be either discharged subject to conditions or detained in a hospital, both subject to conditions. The conditions imposed must be the least onerous and least restrictive necessary to mitigate any danger the accursed may pose to others.