Editing Insanity defense (section)

==Worldwide==
===Australia===
In Australia there are nine [[Jurisdiction (area)|law units]], each of which may have different rules governing mental impairment defenses.<ref>{{cite web |title=Mental Impairment Defences |url=https://www.lrc.justice.wa.gov.au/_files//P97-ch05.pdf |website=Law Reform Commission of Western Australia |access-date=12 May 2021 |page=228 |date=2007}}</ref>

====South Australia====
In [[South Australia]], the Criminal Law Consolidation Act 1935 (SA) provides that:
269C—Mental competence

A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
:(a) does not know the nature and quality of the conduct; or
:(b) does not know that the conduct is wrong; or
:(c) is unable to control the conduct.
269H — Mental unfitness to stand trial

A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is —
:(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
:(b)  unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
:(c)  unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

====Victoria====
In [[Victoria (Australia)|Victoria]] the current defence of mental impairment was introduced in the ''Crimes (Mental Impairment and Unfitness to be Tried) Act'' 1997 which replaced the common law defence of insanity and indefinite detention at the governor's pleasure with the following:
:the accused was suffering from a mental impairment; and
:the mental impairment affected the accused so they either did not understand the nature and quality of the conduct, or did not know that it was wrong.<ref>{{cite Legislation AU|Vic|act|ciautbta1997472|Crimes (Mental Impairment and Unfitness to be Tried) Act|20}} Defence of mental impairment.</ref>
These requirements are almost identical to the M'Naghten Rules, substituting "mental impairment" for "disease of the mind".<ref name="M'Naghten's case"/><ref>{{cite BAILII |litigants=Bratty v Attorney-General for Northern Ireland |year=1961 |court=UKHL |num=3 |date=3 October 1961 |parallelcite=[1963] [[Appeal Cases Law Reports|AC]] 386 |courtname=auto}}.</ref>

====New South Wales====
In New South Wales, the defence has been renamed the 'Defence of Mental Illness' in Part 4 of the ''Mental Health (Forensic Provisions) Act 1990''.<ref>{{cite Legislation AU|NSW|act|mhpa1990355|Mental Health (Forensic Provisions) Act 1990}} Part 4.</ref> However, definitions of the defence are derived from M'Naghten's case and have not been codified. Whether a particular condition amounts to a disease of the mind is not a medical but a legal question to be decided in accordance with the ordinary rules of interpretation.<ref>{{cite AustLII|HCA|49|1990|litigants=R v Falconer |parallelcite=(1990) 171 [[Commonwealth Law Reports|CLR]] 30 |courtname=auto}}.</ref> This defence is an exception to the ''Woolmington v DPP'' (1935)  'golden thread',<ref>{{cite BAILII |litigants=Woolmington v DPP |year=1935 |court=UKHL |num=1 |parallelcite=[1935] [[Appeal Cases Law Reports|AC]] 462 |date= |courtname=auto}}.</ref> as the party raising the issue of the defence of mental illness bears the burden of proving this defence on the balance of probabilities.<ref name="R v Porter">{{cite AustLII|HCA|1|1933|litigants=R v Porter |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1933/1.pdf (1933) 55 {{abbr|CLR|Commonwealth Law Reports}} 182] |courtname=auto}}.</ref> Generally, the defence will raise the issue of insanity. However, the prosecution can raise it in exceptional circumstances: ''R v Ayoub (1984).''<ref>''R v Ayoub'' (1984) 2 [[NSW Law Reports|NSWLR]] 511.</ref>

Australian cases have further qualified and explained the ''M'Naghten Rules''. The NSW Supreme Court has held there are two limbs to the ''M'Naghten Rules'', that the accused did not know what he was doing, or that the accused did not appreciate that what he was doing was morally wrong, in both cases the accused must be operating under a 'defect of reason, from a disease of the mind'.<ref>{{cite AustLII|NSWSC|789|2005|litigants=R v Jennings |date=11 August 2005 |pinoint=[26] |courtname=auto}}.</ref> The High Court in [http://www.austlii.edu.au/au/cases/cth/HCA/1933/1.html ''R v Porter''] stated that the condition of the accused's mind is relevant only at the time of the [[actus reus]].<ref name="R v Porter"/> In ''Woodbridge v The Queen'' the court stated that a symptom indicating a disease of the mind must be prone to recur and be the result of an underlying pathological infirmity.<ref>{{cite AustLII|NSWCCA|185|2010|litigants=Woodbridge v The Queen |parallelcite=(2010) 208 [[Australian Criminal Reports|A Crim R]] 503 at 531 |courtname=auto}}</ref> A 'defect of reason' is the inability to think rationally and pertains to incapacity to reason, rather than having unsound ideas or difficulty with such a task.<ref name="R v Porter"/> Examples of disease of the mind include Arteriosclerosis (considered so because the hardening of the arteries affects the mind.<ref>{{cite AustLII|NSWCCA|282|2000|litigants=R v Cheatham |courtname=auto}}.</ref>

===Canada===

====Criminal Code provisions====
The defence of mental disorder is codified in section 16 of the ''[[Criminal Code (Canada)|Criminal Code]]'' which states, in part:
:''16. (1) No person is criminally responsible for an act committed or an [[omission (criminal law)|omission]] made while suffering 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.''<ref>{{cite web|title=16. Defence of mental disorder|url=http://yourlaws.ca/criminal-code-canada/16-defence-mental-disorder|url-status=dead|archive-url=https://web.archive.org/web/20151210213557/http://yourlaws.ca/criminal-code-canada/16-defence-mental-disorder|archive-date=2015-12-10|access-date=2015-12-09}}</ref>

To establish a claim of mental disorder the party raising the issue must show on a [[balance of probabilities]] 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 1) unable to appreciate the "nature and quality" of the act, or 2) did not know it was "wrong".

The meaning of the word "wrong" was determined in the Supreme Court case of ''[[R. v. Chaulk]]'' [[Case citation#Canada|[1990] 3 S.C.R.]] which held that "wrong" was NOT restricted to "legally wrong" but to "morally wrong" as well.

====Post-verdict conditions====
The current legislative scheme was created by the [[Parliament of Canada]] after the previous scheme was found unconstitutional by the [[Supreme Court of Canada]] in ''[[R. v. Swain]]''.  The new provisions also replaced the old insanity defense with the current mental disorder defence.<ref>{{Citation |last=Pilon |first=Marilyn |year=2002 |title=Mental Disorder and Canadian Criminal Law |publisher=[[Government of Canada]], Law and Government Division |url=http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/prb9922-e.htm |access-date=10 September 2011 |url-status=live |archive-url=https://web.archive.org/web/20090310030223/http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/prb9922-e.htm |archive-date=10 March 2009 }}</ref>

Once a person is found not criminally responsible ("NCR"), they will have a hearing by a Review Board within 45 days (90 days if the court extends the delay). A Review Board is established under Part XX.1 of the ''Criminal Code'' and is composed of at least three members, a person who is a judge or eligible to be a judge, a psychiatrist and another expert in a relevant field, such as social work, criminology or psychology. Parties at a Review Board hearing are usually the accused, the Crown and the hospital responsible for the supervision or assessment of the accused. A Review Board is responsible for both accused persons found NCR or accused persons found unfit to stand trial on account of mental disorder. A Review Board dealing with an NCR offender must consider two questions: whether the accused is a "significant threat to the safety of the public" and, if so, what the "least onerous and least restrictive" restrictions on the liberty of the accused should be in order to mitigate such a threat. Proceedings before a Review Board are inquisitorial rather than adversarial. Often the Review Board will be active in conducting an inquiry. 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 accused may pose to others.

Since the Review Board is empowered under criminal law powers under s. 91(27) of the ''[[Constitution Act, 1867]]'' the sole justification for its jurisdiction is public safety. Therefore, the nature of the inquiry is the danger the accused may pose to public safety rather than whether the accused is "cured". For instance, many "sick" accused persons are discharged absolutely on the basis that they are not a danger to the public while many "sane" accused are detained on the basis that they are dangerous. Moreover, the notion of "significant threat to the safety of the public" is a "criminal threat". This means that the Review Board must find that the threat posed by the accused is of a criminal nature.

While proceedings before a Review Board are less formal than in court, there are many procedural safeguards available to the accused given the potential indefinite nature of Part XX.1. Any party may appeal against the decision of a Review Board.

In 1992 when the new mental disorder provisions were enacted, Parliament included "capping" provisions which were to be enacted at a later date. These capping provisions limited the jurisdiction of a Review Board over an accused based on the maximum potential sentence had the accused been convicted (e.g. there would be a cap of 5 years if the maximum penalty for the index offence is 5 years). However, these provisions were never proclaimed into force and were subsequently repealed.

A Review Board must hold a hearing every 12 months (unless extended to 24 months) until the accused is discharged absolutely.

====Accused unfit to stand trial====
The issue of mental disorder may also come into play before a trial even begins if the accused's mental state prevents the accused from being able to appreciate the nature of a trial and to conduct a defence.

An accused who is found to be unfit to stand trial is subject to the jurisdiction a Review Board. While the considerations are essentially the same, there are a few provisions which apply only to unfit accused. A Review Board must determine whether the accused is fit to stand trial. Regardless of the determination, the Review Board must then determine what conditions should be imposed on the accused, considering both the protection of the public and the maintenance of the fitness of the accused (or conditions which would render the accused fit). Previously an absolute discharge was unavailable to an unfit accused. However, in R. v. Demers, the [[Supreme Court of Canada]] struck down the provision restricting the availability of an absolute discharge to an accused person who is deemed both "permanently unfit" and not a significant threat to the safety of the public. Presently a Review Board may recommend a judicial stay of proceedings in the event that it finds the accused both "permanently unfit" and non-dangerous. The decision is left to the court having jurisdiction over the accused.

An additional requirement for an unfit accused is the holding of a "prima facie case" hearing every two years. The Crown must demonstrate to the court having jurisdiction over the accused that it still has sufficient evidence to try the accused. If the Crown fails to meet this burden then the accused is discharged and proceedings are terminated. The nature of the hearing is virtually identical to that of a [[preliminary hearing]].

===Denmark===
In Denmark a psychotic person who commits a criminal defense is declared guilty but is sentenced to mandatory treatment instead of prison. Section 16 of the penal code states that "Persons, who, at the time of the act, were irresponsible owing to mental illness or similar conditions or
to a pronounced mental deficiency, are not punishable".<ref name="Kramp">{{cite web|last=Kramp|first=Peter|title=Concepts and Procedures in the Member States – Denmark|url=http://ec.europa.eu/health/ph_projects/2002/promotion/fp_promotion_2002_frep_15_en.pdf|work=Salize & Dressing (2005): Placement and Treatment of Mentally Ill Offenders – Legislation and Practice in EU Member States|publisher=EU Commission|access-date=July 16, 2012|url-status=live|archive-url=https://web.archive.org/web/20130608053719/http://ec.europa.eu/health/ph_projects/2002/promotion/fp_promotion_2002_frep_15_en.pdf|archive-date=June 8, 2013}}</ref> This means that in Denmark, 'insanity' is a legal term rather than a medical term and that the court retains the authority to decide whether an accused person is irresponsible.<ref name="Kramp"/><ref name="Sparr">{{cite journal|last=Sparr|first=Landy F.|title=Personality Disorders and Criminal Law: An International Perspective|url=http://www.jaapl.org/content/37/2/168.full|journal=Journal of the American Academy of Psychiatry and the Law Online|publisher=American Academy of Psychiatry and the Law|date=June 2009|volume=37|issue=2|pages=168–81|pmid=19535553|url-status=live|archive-url=https://web.archive.org/web/20130413212030/http://www.jaapl.org/content/37/2/168.full|archive-date=2013-04-13}}</ref>

===Finland===
In Finland, punishments can only be administered if the accused is ''[[compos mentis]]'', of sound mind, but not if the accused is incapable of responsibility (''syyntakeeton''). Thus, an insane defendant may be [[Corpus delicti|found guilty based on the facts]] just like a sane defendant, but insanity will preclude punishment. The definition of insanity is similar to the M'Naught criterion above: "the accused is insane, if during the act, due to a mental illness, profound mental retardation or a severe disruption of mental health or consciousness, he cannot understand the actual nature of his act or its illegality, or that his ability to control his behavior is critically weakened". If an accused is suspected to be insane, the court must consult the [[National Institute for Health and Welfare (Finland)|National Institute for Health and Welfare]] (THL), which is obliged to place the accused in [[involuntary commitment]] if they are found insane. The offender receives no judicial punishment; they become a patient under the jurisdiction of THL, and must be released immediately once the conditions of involuntary commitment are no longer fulfilled. Diminished responsibility is also available, resulting in lighter sentences.

===Germany===
According to section 20 of the [[Strafgesetzbuch|German criminal code]], those who commit an illegal act because a mental disorder makes them unable to see the wrong of the act or to act on this insight is considered not [[Guilt (law)|guilty]]. Section 63 stipulates that if the offender is deemed at risk of committing further offences that will harm others or cause grave economic damage, and if they therefore pose a continuing threat to public safety, they shall be committed to a psychiatric hospital in lieu of a custodial or suspended prison sentence.

===Japan===
If the ability to recognize the right or wrong of action or the ability to act accordingly is lost due to a mental disorder, then the defendant cannot be pursued under Japanese criminal law so if this is recognized during a trial then an innocent judgment will be given. This is, however, rare, happening in only around 1 in 500,000 cases.<ref>{{Cite journal |last1=Shiina |first1=A. |last2=Niitsu |first2=T. |last3=Tomoto |first3=A. |last4=Igarashi |first4=Y. |last5=Shimizu |first5=E. |last6=Iyo |first6=M. |date=2024-01-01 |title=An international comparison study between public opinion in the UK and Japan regarding capital punishment and the use of an insanity defense |journal=Ethics, Medicine and Public Health |volume=32 |pages=100966 |doi=10.1016/j.jemep.2024.100966 |issn=2352-5525|doi-access=free }}</ref>

===Netherlands===

Section 39 of the Dutch criminal code stipulates: "Not culpable is he who performs an act that he cannot be imputed with due to the deficient development or pathological disorder of his mental faculties". Obviously critical are the definitions of "deficient development" and/or "pathological [mental] disorder". These are to be verified by somatomedical and/or psychiatric specialists. An inculpability defense needs to conform to the following criteria:

#The defendant suffered from deficient development or pathological disorder of his mental faculties at the time at which the crime took place;
#There is a probable causal relationship between deficient development or pathological (mental) disorder and the crime [i.e. not every disorder or developmental deficit excuses every crime]; and
#Based on the criteria above, there is a reasonable assumption the deficient development or pathological disorder of his mental faculties excuses culpability of the crime.

If the inculpability defense succeeds, the defendant cannot be ordered to incarceration proper. If the defendant is deemed to be criminally insane (i.e. deemed to pose a risk to himself or others), the court instead may order involuntary admission to a mental institution for further evaluation and/or treatment. The court can opt for a ''definite period of time'' (when complete or at least sufficient recovery of mental faculties on a relatively short time scale is probable) or an ''indefinite'' period of time (when the defendant's ailment is deemed to be difficult or impossible to treat, or can be supposed to be refractory to treatment).

If the inculpability defense succeeds ''only partly'' ([i.e. if the crime cannot be ''completely'' excused because of a ''minor'' degree of deficient development or pathological (mental) disorder), there may still be a legal basis for a ''diminished culpability'' of the defendant; in such case, a diminished prison sentence should be ordered. This can also be combined with the aforementioned involuntary admission to a mental institution, although in these cases the two 'sentences' often run/are served in parallel.

===Norway===
In Norway, psychotic perpetrators are declared guilty but not punished and, instead of prison, they are sentenced to mandatory treatment. Section 44 of the penal code states specifically that "a person who at the time of the crime was insane or unconscious is not punished".<ref name="Penal Code of Norway2">{{cite web |title=LOV 1902-05-22 nr 10: Almindelig borgerlig Straffelov (Straffeloven) |url=http://www.lovdata.no/all/hl-19020522-010.html |access-date=July 16, 2012 |publisher=Lovdata}}</ref>

===Poland===
Insanity is determined through a judicial decision issued on the basis of expert opinions of psychiatrists and psychologists.

===Russia===
A forensic psychiatric examination is used to establish insanity. The result of the forensic examination is then subjected to a legal assessment, taking into account other circumstances of the case, from which a conclusion is drawn about the defendant's sanity or insanity. The [[Criminal Code of Russia]] establishes that a person who during the commission of an illegal act was in a state of insanity, that is, could not be aware of the actual nature and social danger of their actions or was unable to control them due to a chronic mental disorder, a temporary mental disorder, or dementia is not subject to criminal liability.

===Sweden===
In Sweden, psychotic perpetrators are seen as accountable, but the sanction is, if they are psychotic at the time of the trial, forensic mental care.<ref>{{cite web|last=Silfverhielm|first=Helena|title=Concepts and Procedures in the Member States – Sweden|url=http://ec.europa.eu/health/ph_projects/2002/promotion/fp_promotion_2002_frep_15_en.pdf|work=Salize & Dressing (2005Placement and Treatment of Mentally Ill Offenders – Legislation and Practice in EU Member States. Final Report. Mannheim.|publisher=European Commission|access-date=July 16, 2012|pages=215–224|url-status=live|archive-url=https://web.archive.org/web/20130608053719/http://ec.europa.eu/health/ph_projects/2002/promotion/fp_promotion_2002_frep_15_en.pdf|archive-date=June 8, 2013}}</ref>

===United Kingdom===

Although use of the insanity defense is rare, since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991,<ref>{{cite web |url=http://www.legislation.gov.uk/ukpga/1991/25/section/3 |title=Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 |publisher=Legislation.gov.uk |access-date=2014-06-09 |url-status=live |archive-url=https://web.archive.org/web/20131010070152/http://www.legislation.gov.uk/ukpga/1991/25/section/3 |archive-date=2013-10-10 }}</ref> insanity pleas have steadily increased in the UK.<ref>RD Mackay, BJ Mitchell, L Howe (2006) 'Yet more facts about the insanity defence' ''Criminal Law Review'' 399-411</ref>

====Scotland====
The Scottish Law Commission, in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003) confirms that the law has not substantially changed from the position stated in Hume's Commentaries in 1797:<ref>{{cite web|url=http://www.scotlawcom.gov.uk/downloads/dp122_insanity.pdf |title=Scottish Law Commission |publisher=Scotlawcom.gov.uk |access-date=2014-06-09 |page=11 |url-status=dead |archive-url=https://web.archive.org/web/20040415142555/http://www.scotlawcom.gov.uk/downloads/dp122_insanity.pdf |archive-date=2004-04-15 }}</ref>
{{blockquote|We may next attend to the case of those unfortunate persons, who have plead the miserable defense of idiocy or insanity. Which condition, if it is not an assumed or imperfect, but a genuine and thorough insanity, and is proved by the testimony of intelligent witnesses, makes the act like that of an infant, and equally bestows the privilege of an entire exemption from any manner of pain; ''Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat''. I say, where the insanity is absolute, and is duly proved: For if reason and humanity enforce the plea in these circumstances, it is no less necessary to observe a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humor, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender. Because such constitutions are not exclusive of a competent understanding of the true state of the circumstances in which the deed is done, nor of the subsistence of some steady and evil passion, grounded in those circumstances, and directed to a certain object. To serve the purpose of a defense in law, the disorder must therefore amount to an absolute alienation of reason, ''ut continua mentis alienatione, omni intellectu careat'' – such a disease as deprives the patient of the knowledge of the true aspect and position of things about them - hinders them from distinguishing friend from foe – and gives them up to the impulse of their own distempered fancy.}}
The phrase "absolute alienation of reason" is still regarded as at the core of the defense in the modern law (see ''HM Advocate v Kidd'' (1960) JC 61 and ''Brennan v HM Advocate'' (1977)

===United States===
In the United States, variances in the insanity defense between states, and in the federal court system, are attributable to differences with respect to three key issues:
#'''Availability''': whether the jurisdiction allows a defendant to raise the insanity defense,
#'''Definition''': when the defense is available, what facts will support a finding of insanity, and
#'''Burden of proof''': whether the defendant has the duty of proving insanity or the prosecutor has the duty of disproving insanity, and by what [[Burden of proof (law)|standard of proof]].
In ''[[Foucha v. Louisiana]]'' (1992) the [[Supreme Court of the United States]] ruled that a person could not be held "indefinitely" for psychiatric treatment following a finding of not guilty by reason of insanity.

====Availability====
In the United States, a criminal defendant may plead insanity in federal court, and in the state courts of every state except for Idaho, Kansas, Montana, and Utah.<ref>{{cite web|title=The Insanity Defense Among the States|url=http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-among-the-states.html|website=FindLaw|access-date=20 October 2017|url-status=live|archive-url=https://web.archive.org/web/20171020195020/http://criminal.findlaw.com/criminal-procedure/the-insanity-defense-among-the-states.html|archive-date=20 October 2017}}</ref> However, defendants in states that disallow the insanity defense may still be able to demonstrate that a defendant was not capable of forming intent to commit a crime as a result of mental illness.

In ''[[Kahler v. Kansas]]'' (2020), the [[Supreme Court of the United States|U.S. Supreme Court]] held, in a 6&ndash;3 ruling, that a state does not violate the [[Due Process Clause]] by abolishing an insanity defense based on a defendant's incapacity to distinguish right from wrong. The Court emphasized that state governments have broad discretion to choose laws defining "the precise relationship between criminal culpability and mental illness."<ref>''[https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf Kahler v. Kansas]'', No. 18–6135 (2020).</ref>

====Definition====
Each state and the federal court system currently uses one of the following "tests" to define insanity for purposes of the insanity defense. Over its decades of use the definition of insanity has been modified by statute, with changes to the availability of the insanity defense, what constitutes legal insanity, whether the prosecutor or defendant has the [[Burden of proof (law)|burden of proof]], the standard of proof required at trial, trial procedures, and to commitment and release procedures for defendants who have been acquitted based on a finding of insanity.<ref name="posthink">{{cite journal|last1=Callahan|first1=Lisa|last2=Meyer|first2=Connie|last3=Steadman|first3=Henry J.|title=Insanity Defense Reform in the United States - Post Hinckley|journal=Mental & Physical Disability Law Reporter|date=1987|volume=11|issue=1|pages=54–59|jstor=20784052|url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/menphydis11&div=20&id=&page=|url-status=live|archive-url=https://web.archive.org/web/20180605032820/http://heinonline.org/HOL/LandingPage?handle=hein.journals%2Fmenphydis11&div=20&id=&page=|archive-date=2018-06-05}}</ref>

=====''M'Naghten test''=====
The guidelines for the ''[[M'Naghten Rules]]'', state, among other things, and evaluating the criminal responsibility for defendants claiming to be insane were settled in the British courts in the case of Daniel M'Naghten in 1843.<ref name="M'Naghten's case"/> M'Naghten was a Scottish woodcutter who killed the secretary to the prime minister, [[Edward Drummond]], in a botched attempt to assassinate the prime minister himself. M'Naghten apparently believed that the prime minister was the architect of the myriad of personal and financial misfortunes that had befallen him.<ref name="hottop">{{cite book|last1=Starer|first1=Daniel|title=Hot Topics: Everything You Ever Wanted to Know About the Fifty Major Controversies|date=1995|publisher=Simon and Schuster|isbn=0671887084|page=[https://archive.org/details/hottopicseveryth0000star/page/50 50]|url=https://archive.org/details/hottopicseveryth0000star|url-access=registration|access-date=20 October 2017}}</ref> During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him "not guilty by reason of insanity".<ref name="hottop"/>

The [[House of Lords]] asked the judges of the common law courts to answer five questions on insanity as a criminal defence,<ref>Carl Elliott, ''The rules of insanity: moral responsibility and the mentally ill offender'', SUNY Press, 1996, {{ISBN|0-7914-2951-2}}, p.10</ref><ref>Michael T. Molan, Mike Molan, Duncan Bloy, Denis Lanser, ''Modern criminal law'' (5 ed), Routledge Cavendish, 2003, {{ISBN|1-85941-807-4}}, p.352</ref> and the formulation that emerged from their review—that a defendant should not be held responsible for their actions only if, as a result of their mental disease or defect, they (i) did not know that their act would be wrong; or (ii) did not understand the nature and quality of their actions—became the basis of the law governing legal responsibility in cases of insanity in England. Under the rules, loss of control because of mental illness was no defense{{Citation needed|date=December 2011}}.

The M'Naghten rule was embraced with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century.<ref name="M'Naghten's case"/> It was first used as a defense in the United States in the case of ''People v. Freeman'' in 1847, where an Afro-Native man from Auburn, New York was tried for a quadruple murder. [[William H. Seward]] represented William Freeman and argued that Freeman was mentally insane after being committed to the [[Auburn State Prison]] for a crime Freeman insisted he did not commit.<ref>{{cite book |last=Bernstein |first=Robin |date=2024 |title=Freeman's Challenge: The Murder That Shook America's Original Prison for Profit |publisher=The University of Chicago Press |page=135}}</ref> This was a novel defense at the time, and produced much controversy in the town of Auburn, New York, and throughout the United States at large.

=====''Durham/New Hampshire test''=====
The strict M'Naghten standard for the insanity defense was widely used until the 1950s and the case of ''[[Durham v. United States (1954)|Durham v. United States]]'' case.<ref name="hottop"/> In the ''Durham'' case, the court ruled that a defendant is entitled to acquittal if the crime was the ''product of'' their mental illness (i.e., crime would not have been committed but for the disease). The [[Durham rule]], also called the Product Test, is broader than either the M'Naghten test or the [[irresistible impulse test]]. The test has more lenient guidelines for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M'Naghten Rule.<ref name="M'Naghten's case"/> However, the Durham standard drew much criticism because of its expansive definition of legal insanity. It was abandoned in the 1970s, after the case of ''[[United States v. Brawner]]'' (1972).<ref>{{cite court |litigants=United States v. Brawner |vol=471 |reporter=F.2d |opinion=969 |pinpoint= |court=D.C. Cir. |date=1972 |url=https://law.justia.com/cases/federal/appellate-courts/F2/471/969/259681/ |accessdate=2017-11-03 |quote=}}</ref>

=====''Model Penal Code test''=====
The [[Model Penal Code]], published by the [[American Law Institute]], provides the [[ALI rule]] - a standard for legal insanity that serves as a compromise between the strict M'Naghten Rule, the lenient Durham ruling, and the irresistible impulse test. Under the MPC standard, which represents the modern trend, a defendant 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 of their conduct or to conform their conduct to the requirements of the law." The test thus takes into account both the [[Cognition|cognitive]] and [[Volition (psychology)|volitional]] capacity of insanity.

=====''Federal courts''=====
After the [[John Hinckley Jr.|perpetrator]] of [[Reagan assassination attempt|President Reagan's assassination attempt]] was found not guilty by reason of insanity, Congress passed the [[Insanity Defense Reform Act of 1984]].  Under this act, the [[legal burden of proof|burden of proof]] was shifted from the prosecution to the defense and the standard of evidence in federal trials was increased from a [[preponderance of the evidence|preponderance of evidence]] to [[clear and convincing evidence]].  The ALI test was discarded in favor of a new test that more closely resembled M'Naghten's. Under this new test only perpetrators suffering from severe mental illnesses at the time of the crime could successfully employ the insanity defense. The defendant's ability to control himself or herself was no longer a consideration.

The Act also curbed the scope of expert psychiatric testimony and adopted stricter procedures regarding the hospitalization and release of those found not guilty by reason of insanity.

Those acquitted of a federal offense by reason of insanity have not been able to challenge their psychiatric confinement through a [[writ of habeas corpus]] or other remedies. In ''[[Archuleta v. Hedrick]]'', 365 F.3d 644 (8th Cir. 2004), the [[U.S. Court of Appeals for the Eighth Circuit]] the court ruled persons found not guilty by reason of insanity and later want to challenge their confinement may not attack their initial successful insanity defense:
{{Blockquote|The appellate court affirmed the lower court's judgment: "Having thus elected to make himself a member of that 'exceptional class' of persons who seek verdicts of not guilty by reason of insanity...he cannot now be heard to complain of the statutory consequences of his election." The court held that no direct attack upon the final judgment of acquittal by reason of insanity was possible. It also held that the collateral attack that he was not informed that a possible alternative to his commitment was to ask for a new trial was not a meaningful alternative.<ref>{{cite journal
 |url         = http://www.jaapl.org/cgi/content/full/33/1/126?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&minscore=5000&resourcetype=HWCIT
 |author      = Nwokike, Jerome
 |title       = Federal Insanity Acquittees - Person Found Not Guilty by Reason of Insanity May Not Attack His Successful Insanity Defense in Habeas Petition
 |journal     = Journal of the American Academy of Psychiatry and the Law
 |access-date  = 2007-10-11
 |volume      = 33
 |issue       = 1
 |page        = 126
 |year        = 2005
 |url-status     = live
 |archive-url  = https://web.archive.org/web/20071229225408/http://www.jaapl.org/cgi/content/full/33/1/126?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&minscore=5000&resourcetype=HWCIT
 |archive-date = 2007-12-29
}}
</ref> }}

=====''Guilty but mentally ill''=====
As an alternative to the insanity defense, some jurisdictions permit a defendant to plead guilty but mentally ill.<ref name="posthink"/> A defendant who is found guilty but mentally ill may be sentenced to mental health treatment, at the conclusion of which the defendant will serve the remainder of their sentence in the same manner as any other defendant.

====Burden of proof====
In a majority of states, the burden of proving insanity is placed on the defendant, who must prove insanity by a [[Burden of proof (law)#Preponderance of the evidence|preponderance of the evidence]].<ref name="Burdenofproof">{{cite web |url=https://criminal.findlaw.com/criminal-procedure/the-insanity-defense-among-the-states.html |title=The Insanity Defense Among the States |author=<!--Not stated--> |website=FindLaw |access-date=November 15, 2019 }}</ref>

In a minority of states, the burden is placed on the prosecution, who must prove sanity [[Reasonable doubt|beyond reasonable doubt]].<ref name= Burdenofproof/>

In federal court the burden is placed on the defendant, who must prove insanity by [[Burden of proof (law)#Clear and convincing evidence|clear and convincing evidence]].<ref>{{cite web|title=U.S. Attorneys' Manual, Criminal Resource Manual Sec. 638. Burden of Proving Insanity—18 U.S.C. § 17(b)|url=https://www.justice.gov/usam/criminal-resource-manual-638-burden-proving-insanity-18-usc-17b|website=U.S. Department of Justice|date=19 February 2015|access-date=20 October 2017|url-status=live|archive-url=https://web.archive.org/web/20171021003446/https://www.justice.gov/usam/criminal-resource-manual-638-burden-proving-insanity-18-usc-17b|archive-date=21 October 2017}}</ref>  See 18 U.S.C.S. Sec. 17(b); see also A.R.S. Sec. 13-502(C).

====Controversy====
The insanity plea is used in the U.S. Criminal Justice System in less than 1% of all [[Criminal law|criminal]] cases.<ref name=Advocacy_Handbook/> Little is known about the criminal justice system and the mentally ill:

{{Blockquote|[T]here is no ''definitive'' study regarding the percentage of people with mental illness who come into contact with police, appear as criminal defendants, are incarcerated, or are under community supervision. Furthermore, the scope of this issue varies across jurisdictions. Accordingly, advocates should rely as much as possible on statistics collected by local and state government agencies.<ref name=Advocacy_Handbook>{{cite web
 |url         = http://csgjusticecenter.org/wp-content/uploads/2012/12/advocacy_handbook_all.pdf
 |title       = The Advocacy Handbook - FAQ
 |access-date  = 2015-08-02
 |url-status  = dead
 |archive-url  = https://web.archive.org/web/20161125192936/https://csgjusticecenter.org/wp-content/uploads/2012/12/advocacy_handbook_all.pdf
 |archive-date = 2016-11-25
}}</ref>}}

Some U.S. states have begun to ban the use of the insanity defense, and in 1994 the Supreme Court denied a petition of [[certiorari]] seeking review of a [[Montana Supreme Court]] case that upheld Montana's abolition of the defense.<ref>[https://www.washingtonpost.com/wp-srv/local/longterm/aron/scotus032994.htm Court: Insanity Defense Not a Right] {{webarchive|url=https://web.archive.org/web/20170929095714/http://www.washingtonpost.com/wp-srv/local/longterm/aron/scotus032994.htm |date=2017-09-29 }} Washington Post, March 29, 1994</ref> [[Idaho]], [[Kansas]], and [[Utah]] have also banned the defense. However, a mentally ill defendant/patient can be found [[Competence (law)#Competence to stand trial|unfit to stand trial]] in these states. In 2001, the [[Supreme Court of Nevada|Nevada Supreme Court]] found that their state's abolition of the defense was unconstitutional as a violation of Federal [[due process]].  In 2006, the Supreme Court decided ''[[Clark v. Arizona]]'' upholding Arizona's limitations on the insanity defense. In that same ruling, the Court noted "We have never held that the Constitution mandates an insanity defense, nor have we held that the Constitution does not so require." In 2020, the Supreme Court decided ''[[Kahler v. Kansas]]'' upholding Kansas' abolition of the insanity defense, stating that the Constitution does not require Kansas to adopt an insanity test that turns on a defendant's ability to recognize that their crime was morally wrong.<ref>{{Cite web|url=https://www.scotusblog.com/case-files/cases/kahler-v-kansas/|title=Kahler v. Kansas|website=SCOTUSblog|language=en|access-date=2020-03-23}}</ref>

The insanity defense is also complicated because of the underlying differences in philosophy between psychiatrists/psychologists and legal professionals.<ref name="Forensic">{{cite book|last=Schlesinger|first=Louis B.|title=Forensic science: an introduction to scientific and investigative techniques|year=2009|publisher=CRC Press/Taylor & Francis Group|location=Boca Raton, FL|isbn=978-1-4200-6493-3|edition=3rd|editor=James, Stuart H. and Jon J. Nordby|pages=585–604|chapter=Forensic Psychology}}</ref>  In the United States, a psychiatrist, psychologist or other mental health professional is often consulted as an expert witness in insanity cases, but the ultimate ''legal'' judgment of the defendant's sanity is determined by a jury, not by a mental health professional.  In other words, mental health professionals provide testimony and professional opinion but are not ultimately responsible for answering legal questions.<ref name="Forensic"/>