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Psychology (4,208)
PSY328H5 (51)
Lecture

Lectures: Juries & Challenge for Cause; Civil & Criminal Commitment; Criminal Profiling; Assessment & Treatment of Offenders

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Department
Psychology
Course
PSY328H5
Professor
Dax Urbszat
Semester
Winter

Description
Jury Selection and the Challenge for Cause Jury Functions 1. To use the wisdom of 12 to reach a verdict - Notion of having regular community members who stand to make decisions of whether the accused is guilty or not or liable or not - Notion that 12 is a nice number and representative of those in the community - There is use of random selection to ensure that the jury is not biased, since a biased jury would not be representative - However, want to pick people who do not have knowledge, interests, etc. in the particular case - Most cases are decided by the judge alone, but serious cases include juries in order to avoid systematic bias – take decision-making out of the hands of a single person and distribute the decision-making to more people - However, both sides (defense and prosecution) are attempting to have jurors who are biased towards their side take part. Consequently, don’t get jurors who are neutral, but rather a split jury who are believed by the legal system to cancel each other out 2. To act as the conscience of the community 3. To protect against out of date laws - Morgentaler: performed abortions when it was illegal, and it admitted it as well; jury did not convict him TWICE which lead to a change in the laws around abortion – struck down by the Supreme Court 4. To increase knowledge of the justice system - It is a duty as a citizen to be called for jury duty - Young people and students are rarely called though Empanelling a Fair Jury – involves 2 things: 1. Representativeness - Want jury to be representative of the community, but this is undermined by the way people are chosen for jury duty - Voter registration and enumeration lists; consensus; bias for age (older); homeowners - Gender, race, socio-economic status? - Those with low SES are less likely to own a home, vote, etc. and thus less likely to be called for jury duty 2. Impartiality - Want people who are impartial - Must not be biased, or if biased they must be able to set aside any bias and decide the case on the evidence presented at trial alone - We are all biased by our religion, culture, SES, upbringing, etc. and it is not something we have conscious control over - Legal fallacy - Social psychology: not realistic for a person to actually put bias aside, even if they say they can Jury Selection – Canada vs. USA - In Canada, most cases are judged without a jury o Most are lower court cases, where there are no indictable or hybrid offences o In indictable/hybrid offences, you have a choice to have a jury o Most people choose to have a jury EXCEPT drug, child molestation or anything involving children, gang-related cases, etc. where people will have biases against charge not defendant in particular o Although we go by innocent until proven guilty, people generally feel that the accused did it if a child is involved o People feel a judge would be more fair without emotional aspect, despite other legal workers believe judges are less lenient than jurors o Summary conviction offences - In Canada, there is a presumption that jurors are not biased and can be impartial o Canadian bias that people are impartial. - In the US, there is a presumption that jurors are inherently biased and must be challenged o In the USAthe presumption is opposite, and needs to be challenged. o To make a challenge in Canada is tough - In Canada, jurors do not make decisions regarding sentencing (except making recommendations regarding parole eligibility in murder cases) o In many states, jurors make sentencing recommendations – not the case in Canada except in the Faint Hope Clause (which is not used or applied very often). - In the US, there are long and personal challenges done by the lawyers and adjudicated by the trial judge often involving jury consultants o Lawyers ask questions to potential jurors but judge makes decision of whether person is biased or not – can challenge but judge does have this discretion o Trial or aka jury consultants are a big business in USA– jury selection process o Although there are people who help in Canada as well, it is not much of a business since it is more limited o USA: can ask any questions they want, give out jury questionnaires (empirically and psychologically validated). o In the OJ Simpson case, asked questions like income/salary, personal questions, if they have been a victim of domestic violence or know someone, if they ever had a run in with the law, etc. which are not directly related to jury selection, but latitude given in states allows them to collect as much information as possible. - In Canada, the only information available to the lawyers is name, address, occupation, demeanor and physical appearance (when you see them) o In Canada jury selection is a 3 hour process, and a challenge can turn it into some days; much longer in US. Trial Consultation - Jury Selection - Witness Preparation o Can make suggestions about how to answer questions o How one should dress (look business-like or student-like) o Make decisions based on research, including focus groups  Run mock trial, then ask jurors what they thought  Take notes from them and make decisions about how witness should present self and answer, and whether accused should testify or not - Theory of the case o Can help decide whether insanity or self-defense should be claimed - Cross examination techniques o Whether or not to ask people certain questions, antagonizing people, ways to cross examine in order to get the result that you want – make witness look as if not credible or in best light possible based on side you are taking - Impact of pretrial publicity o Cases where there are lots of media putting out information o Admissible testimony is taken seriously but need to prove that many people have heard about it and have a bias so surveys are taken o Mostly in high profile cases and in the USA. o Judge can give remedies: publication bans, change of venue, challenge for cause - Expert testimony o Can testify to provide expertise on facts jury does not know about, although often do not testify themselves and rather suggest other people o Leads to a battle of experts, where each side argues for its extreme o Can always find contradictory evidence in science o But consultants can also point out how to read into research/evidence of experts, and make your side look more credible and the other’s discredited Jury Selection - Mock trials - Focus groups - Normally tape the mock trials and have other people in focus groups discuss it again and again - Surveys - Questionnaire packages - What questions to ask potential jurors - Data analysis - Voire dire (challenge for cause) – French for to see to hear Effectiveness of Trial Consultants? - Limited research looking at this - Olczak, Kaplan, & Penrod, (1991) – in a challenge for cause, lawyers no better at detecting bias than students o Lawyers believe they are good at this; obviously belief differs from empirical evidence when surveyed - Videotape: lawyers performed worse than chance at detecting biased jurors o Better off to flip a coin because lower than chance; reasons why trial consultant should be hired - Prosecutors believe teachers are hard liberals and will be too sympathetic to defendants – no evidence behind this; teachers are typically not chosen and challenged - The same belief is held for students, although they do not even go up to the stand to be challenged - Thus, higher levels of education are not in favour of potential jurors - Moran, Cutler, & DeLisa (1994) – trial consultation may account for 10-15% of variance and may be marginally effective in equivocal cases o Looked at different cases o If the case is a slam dunk, then it does not matter how good the consultant is o But if the case can go in either direction, then trial consultant can push it to on side o In most cases, defendant is at disadvantage since Crown has more resources available - OJ Simpson: wealthy, more resources, and had the best of the best. Prosecution also hired consultants, and ended up firing trial consultant on second day of jury selection b/c disagreed with information given & didn’t use challenges; OJ’s trial consultant gave same info so prosecution should have listened. Background of racial unrest in LA & racial treatment by LAPD – the great deal of mistrust of Black community in LA and police was at height during this time. Trial consultants found black women were less likely to convict, although prosecution believed OJ’s history of domestic violence and marrying a white woman would make them most likely to convict. Black men were also less likely to convict. Jury were 10 women, 2 men – most had high school education or less, 5 had reported negative experiences with police, one male Hispanic and other black, 8 black women and 2 white women - Johnson: 4 trials using trial consultants for jury selection – juries selected were no different than picking first 12 people Sources of Bias 1. Interest bias - Anybody who has a stake in the outcome of particular case - Anybody who knows anyone involved in case - Includes police, bailiff, judge, etc. not just defendant – no direct or indirect relationship with anyone - All names of anyone involved in case are listed and potential jurors must tell if they recognize anyone - Usually bring 120 people at a time, and then sometimes another 120 before getting 12 jurors 2. Specific bias - Having any knowledge of facts or evidence of case, with most obvious example being pre-trial publicity, but any other source giving information about case can lead to bias (being a neighbour) - Usually ask person to set aside bias, rather than going through a challenge because of how long it takes - Typical human nature involves thinking of what we are told not to think of 3. Normative bias - Biases and norms of people in community  OJ: many people, especially minorities, had a negative bias of police and courts 4. Generic bias - Ethnic and cultural bias (against visible or any minority groups – sexual orientation) Jurors are polled at the beginning of jury selection to ensure they have no connection to the case, or know or have a relationship with anyone who has a connection with the case Remedies for Bias - Publication bans o Publication bans in USAare rarely used since violation of media rights that they hold dearly. o Hold jury outside of normal society EXCEPT for weekends. o In Canada this is rare and may be done only during liberation process, and would apply a publication ban which is temporary – until verdict comes out. o Paul Bernardo trial was one of the famous publication bans for only Canadian news and had to do a change of venue  people could still get information fromAmerican media so failed publication ban. o Second famous was: BC pig farmer who would take marginalized people, kill them and feed them to pigs which were later sold for people to eat – [temporary] publication ban was successful b/c made a trade withAmerican media as well - Adjournment o Postponing until a later date and this can be done for various reasons, such as pre-trial publicity o But must be careful to not violate Charter – this is a challenge o However, typically it is the defense asking - Change of venue o If there is so much outrage in the community, may need to take trial somewhere else o Judges do not like to do this, but it happens if there is political pressure or such - All these are rare and are typically used for high profile cases - Challenge for cause o Very common o Allows to challenge potential jurors to be biased against particular defendant in this particular case Challenge for Cause - Legal mechanism in place to challenge jurors as to whether they would be impartial with respect to a particular issue - Must establish a reasonable inference of potential bias in the population - Judge decides whether a challenge is warranted and has final approval of any questions to be put to the jury o In high profile cases, judges give more latitude for amount of questions allowed o Smaller cases: don’t have a lot of patience for many questions o Need to make motion to judge, who will decide which questions will be allowed - Allowed on grounds of pre-trial publicity - Need to make sure jurors do not have negative attitudes toward sexual orientation, HIV status, and mental disability - Offense based challenges (overturned) o Used to be allowed o Overturned by Ontario court of appeal, saying challenges should be directly towards defendant or case o This applies all over Canada, but other appeal courts can disagree o If an appeal court disagrees, case will go to the Supreme Court o Not allowing a challenge and allowing a challenge are both grounds for appeal - Drug involvement - Political or moral attitudes - Police credibility o Attitudes toward police - Race or minority group status o 95% of challenges occur based on this Research - Prejudice and Stereotyping: Duncan (1976), Sager & Schofield (1980), Bargh, Chen, and Burrows (1996) o Much of this older research and not much current talks about it but studies suggest people of all ethnicities view minority groups differently o Children rated black pushing white as more hostile than vice versa; proved also true for adults; primed subjects with negative stereotypes led to subjects being more hostile (affected behaviour) - Knowledge of stereotypes vs. personal beliefs (Devine, 1989) o Difference between knowing about stereotypes and being affected by them and having our own opinions - Automatic vs. controlled processes: overlap between these; cannot expect people to be completely free from bias - (Fazio, Jackson, Dunton, and Williams, 1995): people’s social desire not to be stereotypical and fair. Primed subjects with black and white person subliminally. White subjects were quicker to find negative adjectives when showing black person. - Ideas based on anecdotal evidence from observing the Challenge for Cause during jury selection at the Superior Court of Justice (Toronto): challenges done based on minority group status Prejudice in the Legal System - United States: Field (1979), Klein & Creech (1982), Radelet & Pierce (1985) o Minorities are more likely to be pulled over, arrested, charged, convicted, and receive a longer sentence - Canada:Avio (1988)Archival analysis o Same thing as USAbetween Blacks and Caucasian - Pfeifer & Ogloff (1991) jury instructions o Found that jury instructions did nothing to change beliefs o However, attitudes have changed although some believe discrimination has gone underground in public sphere - Bagby, Parker, Rector, & Kalemba (1994) - - bias against white defendant o Suggested motivation to show not biased, based on attractiveness (black being more so), etc. for these results - Motivation to conceal prejudice? R. v. Parks (1993), 24 C.R. (4 ) 81. - Air of reality - Ontario Court of Appeals took judicial notice that… “there is a realistic possibility that a juror will be influenced in the performance of his or her judicial duty on the basis of racial bias” - Judicial notice means no longer has to be proven and can be a fact you can rely on - Need to give a compelling reason for why you do not believe in this presumption or precedent - In the R. v. Parks case, a black man killed a white man and there was drug involvement - The Ontario Court ofAppeal said there was a realistic possibility that juror would be biased - The case went to the Supreme Court - This guaranteed a challenge for cause in Toronto (narrowly construed) - Supreme Court of Canada reiterates this precedent in R. v. Williams (1998): aboriginal defendant charged with killing a Caucasian victim; challenge for cause was denied, although there is a prejudice against first nations in the west coast; went to the appeal court and then the Supreme Court of Canada, which decided there is a possibility of juror being biased - This opened up the challenge for cause to all of Canada, not just Toronto  now can give jurors the “Parks question” Challenge for Cause - Select first two “triers” - Triers are members of the potential jury pool, who decide whether other potential jurors are biased or not, or in other words, acceptable or not - This is done in different ways and there is no standardized way - Taken out of the judge’s hands to avoid systematic bias - Both triers are sworn in - Judges may explain a lot or barely at all what the triers’job is - On the basis of the potential juror’s answer to the challenge for cause question(s),m the trier decides whether the potential juror is acceptable or unacceptable to sit on the upcoming trial - Legally, having a bias does not necessarily indicate you are partial - Even if you think they have a bias, does not mean they cannot be impartial Swearing in the Triers - “Do you swear that the evidence to be given by you to this court shall be the truth, the whole truth, and nothing but the truth, so help you God?” - “Do you swear that you will well and truly try whether one of the jurors stands acceptable or unacceptable to try the accused, and a true verdict give according to the evidence, so help you God?” - Sworn to tell the truth, and to decide whether potential juror is acceptable or unacceptable give an unbiased verdict - Call first potential juror - Potential juror goes to witness stand & is also sworn in - Judge may or may not give instructions Challenge the Potential Juror “Do you swear that the evidence to be given by you to this court and triers sworn in this challenge shall be the truth, the whole truth, and nothing but the truth, so help you God?” The Challenge for Cause Question (R. v. Parks) “As the presiding judge will tell you, in deciding whether or not the prosecution has proven the charges against the accused beyond a reasonable doubt, a juror must judge the evidence of the witnesses without bias, prejudice, or partiality. Would your ability to judge the evidence in this case without bias, prejudice, or partiality, be affected in any way by the fact that the accused is Black?” - Lawyers ask the question, and judge can decide which side asks Triers Deliberate “Triers, how do you find?” Aunanimous decision is required; otherwise there will be an automatic rejection - Peremptory Challenges*: usually use all of them - Legal system believes that just cause someone is biased against a defendant, they are not biased against jurors - If acceptable, trier #1 rejoins jury pool and can be called as a juror still. - The challenged juror becomes the next trier. - Swear in juror #1. - Accepted juror becomes trier #2 and gets sworn - Swear in triers again. - Another potential juror is called up and sworn in, then asked Parks Question - To get unanimous decision, sometimes see one trier pressure the other - Next acceptable juror becomes trier #2 while juror #1 becomes trier #1 and trier #1 is sent back into jury pool - Unacceptable jurors will be sent back to jury pools for other cases Juror #1 “Do you swear that you shall well and truly try and a true deliberance make between our sovereign lady the Queen and the accused at bar whom you shall have in charge and a true verdict give according to the evidence, so help you God?” “Do you swear that you shall well and truly try whether one of the jurors stands acceptable or unacceptable to try the accused and a true verdict given according to the evidence, so help you God?” Trier Unacceptable - If triers find juror unacceptable or if either lawyer uses a peremptory challenge, the juror is excused back to the jury office. - Dependent on factors not relevant at all - This challenged juror is free to be called for another jury pool later on. - Potential jurors could be present or not at all. Those present hear the questions they will be asked. Someone who has a bias will be much less likely to admit to it, which is already very low. We have been programmed to be politically correct in front of others and hide our true feelings; potential jurors feel social pressure to lie that they are not biased Challenge for Cause - Is it a fair and useful process? - There are only two triers, who keep moving over every time a new juror is sworn in until there are 12 jurors. - Why is it not anonymous? Why is everyone sworn in at one time? - No triers for regular cases; only for when there is a challenge for cause - Why not change the process to make it better? - Why do we not ask them on paper, to make it easier for them to be honest? - If you give a scale handed out by a black TA, there is lower discrimination than when a white TA passes the scale out - How could the process be made better? - Give swear in en masse and make them fill out an empirically valid questionnaire & plug results into computer, which will pick out jurors who are not biased - What other procedures could be used? - Why is there no change? - Courts are not just about fairness, but about the appearance of fairness. If you did it anonymously, there would be no public viewing to assess that the courts are in fact fair. This gives appearance of justice, even though it does not work. - No appeal based on this, and until then nothing will change. No one in the legal system really cares. An appeal would set a new precedent and those who are convicted can make an appeal Civil and Criminal Commitment Idea of dealing with mental illnesses and criminality, questions as to whether person understood what they did or not If we look at old cases all the way to Hillside Murders, claimed had MPD (now DDD) => led to battle of the experts One expert claimed he had MPD, was not familiar with it but said he had it Prosecution’s expert was familiar with MPD (diagnosis, treatment) & did an experiment, but made suggestions (neither of which were true) and murderer began to present these suggested personalities  became obvious he was faking it People can become drunk to the point of being in a dissociative state and committing a heinous offence, but these are rare cases (extreme & high-profile examples) Textbook: Jeffrey D. suffered from various forms of mental illnesses (having sex with corpses – paraphilia) - Delusional belief consumption of victim would give him power - In the end it was understood he knew what he was doing and actions were premeditated, but he was insane Paul B. suffered from mental illnesses as well: sexual sadism, paraphilia, and more. Crazy but not insane. Insanity is a legal concept, not medical Criminal Commitment: fitness to stand trial (do they even understand what is going on) Criminal Commitment  Hypothetical case, based on others: Bobby’s story • Down’s Syndrome - IQ below 50 (severely retarded)  mental disability which will not respond to treatment; ability to understand was the same as a 4-5 year old • 25 years old, 6’4’’, 300 pounds • Has recently become sexually mature, which had been delayed by the DS • Lives with parents b/c incapable of living alone unassisted • Grocery store with mom, in line, grabbed woman in front’s breasts and she pressed charges b/c sexual assault • Aggressive violent act: squeezed hard and left bruising • Acting out his sexual urges violently against women • Recently charged with sexual assault • Criminal insanity involves psychosis disorders like schizophrenia or psychotic episode from postpartum depression Fitness to Stand Trial - “An accused individual must be protected from a conviction that could have resulted from a lack of participation or capacity to make proper judgment” - Don’t want to convict someone who has no idea what is going on - 1836: R. v. Pritchard – first case to set standards 1) Accused must be able to assist in his or her defense – had consciousness of surroundings at time, do they know what jail is, are they guilty 2) Does the accused understand his or her role in the proceedings 3) Does the accused understand the nature or object of the proceedings - Standards set forth came from Canadian common law, eventually became part of the Criminal Code of Canada which is a statutory law - Section 2 of the Criminal Code: Unfit to stand trial means unable on account of mental disorder to conduct a defense at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to a) Understand the nature or object of the proceedings b) Understand the possible consequences of the proceedings, or c) Communicate with counsel - Amental disorder is diagnosable by a psychiatrist through the diagnostic manual (5), but can include a drunken blackout, drug effects, or a blow to the head and in this case, it is a legal term and rather ambiguous. - This section questions: whether there is anything that prevents the accused from assisting their defense; whether the accused is delusional; whether the accused even understands that this is a court of law and justice; whether they understand they are accused of a crime and that they can be convicted resulting in some form of institution, such as prison or a secured psychiatric facility; and whether the person is able to tell their counsel what happened. - The idea of the law is that you are innocent until proven guilty, and when most people are brought in with not being fit to stand trial this is usually more than enough to hold the accused against their will in order to receive an assessment. The accused can be held anywhere from some hours to over 60 days, which is no different from anyone without fitness to stand trial. - An accused is presumed fit to stand trial unless the court is satisfied on a balance of probabilities that he or she us unfit (s.672.22) - Balance of probabilities is a lesser standard (than reasonable doubt), but simply more sure than not - The party raising the issue has the burden of proving the issue of unfitness (s. 672.23) - If you raise issue, must provide evidence to judge – motions to the judge are done before the trial (meaning there is no jury involved) - Usually defense raises issue but sometimes prosecution can raise it; but when? o Custody cases – defense does not want to bring it up here o Can be held longer with a treatment order than just with sentence, and if unresponsive to treatment, can stay longer  will lead to civil commitment proceedings: punishing for something may not have done - R. v. Taylor – “limited cognitive capacity” - Threshold is lower than in other countries and can give limited cognitive capacity assessment - The accused need only have the ability to recount to his or her lawyer the facts relating to the offence that would enable the lawyer to properly present the case. The accused need not have the ability to act in his or her own best interest. - Need reasonable grounds to raise issue of fitness based on mental disorder - Criminal commitment is controlled by uniform statutes, while civil commitment varies by provinces Fitness Interview Test - Done by forensic psychiatrist/psychologist brought in by the side who raised the issue, but final determination is made by the judge (who is neutral) 1. Nature and object of proceedings: the arrest process, the nature and severity of the charges, the role of key players, pleas available, consequences of pleas, court procedure - Range of penalty; does accused understand plea bargaining; does accused understand what roles lawyers, judges and the jury play - Sexual offender registry; having to move since parents live near school 2. Understanding of the consequences: range and nature of penalties, available legal defenses and the likely outcome - Not able to respond to treatment (DS); may lead to civil commitment; do not want to plead guilty or insanity - Very less amount of cases (~1%) claim insanity and ~20% cases (especially where already diagnosed with a psychosis disorder) - Bobby may go to prison; fitness bargaining may be in his best interest - Diagnosis may be re-done; diagnosis may have been done at age of 5 so probably not reliable anymore - Big issue is stopping it from happening again, not punishing him (prosecution are representing interests if community) and do not know how far he may go next time - Risk assessment would put Bobby at high risk 3. Ability to communicate with lawyer: capacity to communicate facts, relate to lawyer, engage in defense, challenge witnesses, testify, and manage courtroom behaviour - Is the accused able to tell their lawyer what happened and understand what a court is? - Understanding consequences of actions is debatable - Highly unlikely to engage in defense - Can challenge witnesses - Could testify but defense probably will not want Bobby to do so - Unlikely to be able to sit in court quietly Fitness to Stand Trial - If unfit to stand trial, there are 3 options: 1. Conditional discharge - Chances of this occurring for Bobby are zero - For minor charges, and even for those this is unlikely - Would be able to let go, but restricted from going to grocery store and always staying with parents 2. Adetention order – bail is denied and you are committed to a hospital for the criminally insane until found competent - Secured psychiatry institution, where person is held until competent - Usual case is holding until out of psychotic state, so not long 3. Atreatment order – treated until fit to stand trial - Brought into institution and given medicine or treatment against will - If determined you will never be competent, you must be released or civil commitment proceedings are initiated - Paranoia schizophrenic has paranoia that mailman is out to kill him and that the letters dropped through the mailbox are laced with something that will kill him, so decides to kill mailman in self defense - USAcase; shoplifted and diagnosed with paranoia schizophrenia before; 6 months of treatment until finally found fit to stand trial; found not guilty, but held because danger to others; sued for release through civil commitment proceedings, but denied, appealed and denied again, appealed and went to Supreme Court where it was a 5-4 decision will not be released - More likely for civil commitment proceedings to occur than to be let go of: need to show you are not a danger to others, but in most cases those found not fit to stand trial have people who are unpredictable - Bobby will automatically go to civil since none of these are possible and he is unfit Profile of Unfitness - Single, unemployed men, living alone - Lowest socioeconomic status - History of psychiatric problems and previous psychiatric hospitalizations - Come in, treated or do not respond to treatment, let go – not kept forever, unless civilly committed to psychiatric institutions - Mostly those with schizophrenia - Some people live in assisted facilities with financial support from loving family; but often most are homeless (demographic) - Mostly charged with property offences and other non-violent offences - Mostly nuisance offences; people end up using justice system to deal with the problem - Demographic, criminological, mental disorder - Psychosis in mania, schizophrenia and postpartum depression - Most people found unfit will spend more time in prison than if they were found guilty and served the maximum sentence - Spend more time incarcerated, whether prison/jail or secured psychiatry institution - Show hostile, physically threatening, etc. and cannot reason with them, so police need nurses/psychiatrists familiar with mental illness to ride along Canadian Criminal Commitment - M’Naghten rules – common law (English) - “Aperson is presumed sane unless it can be clearly proven that , at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” - Fitness to stand trial, detention/treatment order and now fit - Retroactive or retrospective: person’s state of mind during act - Wild Beast standard: crazy Ned tried to kill for delusional reasons; understood someone who was deprived of memory of crime or reason for crime - Will not hold a 5 year old for a crime (understand murder is wrong, but do not know moral implications); person with capacity of 5 year old will not be held either - Idea emerged due to public outcry from lunatics: even if person was insane at time, can detain them if danger to society (post-acquittal or preventative detention) - New rules: What is defect of reason? What is disease of mind? What is nature/quality of act? R. v. Swain - Supreme Court of Canada gave 6 months to reform the law = Bill C-30 - Rules were integrated into Canadian Criminal Code statute - Laws were reformed but still based on rules - S. 16 Criminal Code of Canada: “No person is criminally responsible for an act committed or an 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.” - Disease of mind  mental disorder; but does not only mean diagnosable, can mean other things as well - Not just knowing what they were doing, but that it was wrong both legally and morally - Still very vague which is why 80% of the time this defense fails - Unconstitutional to hold against will, so now taken to civil commitment - Tests done for whether they can control their behaviour, whether have a mental disease - Guilty but mentally ill so sent for treatment (still in 13 states) and then serve sentence when they get better - Prevents what happens in Canada where we have NCRMD: Not Criminally Responsible by Reason of Mental Disorder Criminal Commitment 2. Acquitted at trial by reason of insanity - Not responsible if conduct is attributable to mental illness that interferes with rationality. - Burden is on the party raising the issue of insanity - Only defense can raise insanity issue; Crown can only do so if found guilty or if defense already raised, can bring about assessment - Must be insane at the time the crime was committed (retrospective) - Typically jury determines this - Not Criminally Responsible by reason of Mental Disorder (NCRMD) - NCRMD is part of changes made to criminal justice system; guilty but not criminally responsible - If found NCRMD can be let go – absolute discharge although unlikely to happen (same for conditional) because based on danger to society - Absolute discharge “not a significant threat”, conditional discharge, detention in hospital - These are civil commitment proceedings - Bobby can claim insanity and NCRMD, but no chance of being let go because will have to show not a significant threat Profile of NCRMD - Marginalized member of society, white, single male, late 20s early 30s - Low SES, prime time for disorders like schizophrenia (onset in 20s) - Unemployed, lacks a grade 12 education - Long record of problems in school and functioning in different areas - History of hospitalization and arrest - Typically psychotic - Typically non-violent offence - Shoplifting, threatening, harassment, etc. – not involving physical violence - Minor crimes, not have hurt others in any significant way - Failure of society to take care of poor who do not have any support - Hospitals take them in and out, until something bad happens; then held against will (involuntary) Civil Commitment - Clear that Bobby is a risk to others, will be civilly committed and held (will likely not be rel
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