‘Manifest Madness’: Towards a New Understanding of the Insanity Defence
| Date | 01 May 2007 |
| Published date | 01 May 2007 |
| Author | Arlie Loughnan |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00643.x |
‘Manifest Madness’:Towards a New Understanding of the
Insanity Defence
Arlie Loughnan
n
This article introduces a newconcept which can serve as a theoretical framefor understanding the
way in which insanity is provedfor the purposes of the cr iminal law.With reference to George
Fletcher’s concept of ‘manifest criminality’,it i ntroduces the concept of ‘manifest madness’.This
concept constructs madness (a shorthand for the types of mentalabnormality known to the crim-
inal law as insa nity) in criminal law as evident to lay observers, and its meanings, which are
derived fromcollective knowledge of it, as encoded in the defendant’sacts. Throughan historical
analysis of the way in which insanity has bee n proved in criminal law, the article argues that
‘manifest madness’ is useful for understanding how knowledge about insanity is structured in
the criminal courtroom. The concept of ‘manifest madness’provides a frame that incorporates
evidentiary and proceduralfeatures of the insanity defence that have resisted systematictheoreti-
cal analysis.
INTRODUCTION
The insanity defence has existed in its current form since1843. As is well known,
under the McNaughtanRules,
1
the insanity defence is availableto a defendant who
can prove that, at the time of his or her o¡ence, he or she was su¡ering from a
‘defectof reason’, causedby a‘disease ofthe mind’,rendering the defendant unable
to understand the ‘nature and quality’ of his or her act or to know that it was
wrong. In additionto the substantive content of the insanitydefence, a particular
set of rules of evidence and procedure attach tothe defence.There are three parti-
cular rules of evidence attached to the insanity defence: the burden of proof
(which lies on the defence ^ a reverse burden); the standardof proof (a persuasive
or legal standard); and the relatively recent statutory requirement of expert med-
ical evidence to support a claim to be insane for thepurposes of the criminal law.
2
There are alsothree particular proceduralrules attaching to the defence: it may be
raised by the prosecution or the defence; the defence must go to the jury; and, if
granted, it results in a‘special verdict’ which brings with it a particular set of dis-
posal options. Together, these six rules of evidence and procedure comprise the
fact-¢nding context in which the insanity defence operates.
Despite the longevityof the insanity defence, it remains something of an odd-
ity within the criminal law corpus. Given the technical construction of other
mental incapacitydefences, it is arguably the rules of evidence and procedure that
n
Facultyof Law, Universityof Sydney.I would like to thank Jesse Elvin, Jill Peay, Sabine Selchow and
the MLR’s two anonymousreferees for their comments on earlier versions of this article.
1SeeRvMcNaughtan (1843) 10 Cl & F 200. I adopt the spelling of McNaughtan adopted by
Richard Moran, for the reasons he gives: see R. Moran, Knowing Right from Wrong:The Insanity
Defenseof Daniel McNaughtan (NewYork:The Free Press, 1981) xi^xiii. For the McNaughtan Rules,
see ibid 168^175.
2CriminalProcedure(Insanityand Un¢tness toPlead) Act 199 1, s 5.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(3)MLR 379^401
attach to the insanity defence that mark it out from other criminal law defences.
There are¢ve unusual features of theway in whichinsanity is provedi nthe court-
room.First, the issue of a defendant’s insanity may be raised by the prosecution as
well as by the defence. Secondly, a claim to the insanity defence requires expert
medical evidence to support it.Thirdly, the insanity defence is the only common
law defence for which the defence bears a legal burden of proof. Fourthly, while
judges are able to accept pleas in every other type of criminal proceeding, the
insanity defence must go to the jury. Finally, the ‘special verdict’ is the sole alter-
native to a general verdict of ‘guilty’ or ‘not guilty’.These evidential and proce-
dural features of the insanity defence have meant that it is classed as aberrant
within the law of criminal evidence and procedure. As Lord Sankey stated in
Wo o l m i n g t o n vDPP,McNaughtan‘stands by itself. . . it is quite exceptional’.
3
The ‘exceptional’status of the evidentiary and procedural rules attaching to the
insanity defence has blunted any attempt to account systematically for these rules.
The label ‘exceptional’ often su⁄ces for an explanation in itself, as it seemed to do
inWo o l m i n g t o n . Forexample, the most frequentcomment on the reverseburden of
proof for insanity is that, in the words of one commentator, it is an ‘exceptional
historical accident’.
4
On this basis, the peculiar nature of the McNaughtan Rules
bears the blame for the evidentiary and procedural rules attached to i nsanity as well
as the substantive construction of the defence. As is well known, the McNaughtan
Rules were formulated in responseto the questionsput to the judgesof the Queen’s
Bench by the House of Lords after Daniel McNaughtanwas acquitted of the mur-
der of the Prime Minister’s Private Secretary, Edward Drummond. The Rules
represent the current law on insanity. As the outcome of a political process, rather
than the trial decision itself, the McNaughtan Rules are indeed unique. However,
labeling the evidentiary and procedural rules attached to the insanity defence
‘exceptional’ is unsatisfactorybecause it leaves the question of why they are excep-
tional unanswered.Whywere the McNaughtanRuleson provinginsanity framedas
they were? Whyhave these rules remained almost unaltered since 1843?
Some judges and commentators have attempted to articulate accounts of the
rules of evidence and procedure attaching to the insanitydefence that go beyond
references to historical accidents. In these accounts, therules relating to the insan-
ity defence have been interpreted as a necessary butl imited derogation from more
generallyapplicable rules comprisingthe law of criminalevidence and procedure.
Such a limited derogation fromgeneral principles is defended on one or otherof
two grounds. One defence rests on the particular nature of the insanity defence.
An example of this type of defence is provided by Stephen Morse. In relation
to the reverse burden of proof, Morse argues that a defendant pleading insanity
is making a claim that is ‘rarely justi¢ed’.
5
According to Morse, a reverse burden
is appropriate because it minimizes ‘the risk of success of insanity defenses in
questionable cases’ and at the same time permits ‘the defense to succeed in the
few cases in which it is morally proper’.
6
The second type ofdefence for the rules
3Woolmington vDPP [1935] All E R Rep 1, 5.
4 P. Roberts,‘Taking the Burden of Proof Seriously’ [1995] Crim LR 783, 789.
5 S. Morse,‘Excusing theCrazy: The Insanity Defence Reconsidered’ (1985)58 S Cal LR 777,824.
6ibid 824.
Towards a New Understanding of the Insanity Defence
380 r2007 The Author.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(3)MLR 379^401
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