17.8 - 2. Responsibility

• Jurisdiction: New York

2. Responsibility

Over the years, there have been several judicially created tests for determining whether the defendant was mentally responsible at the time of the crime. Under the old McNaughton rule (a modified version of which New York continues to follow), a defendant must have had the capacity to understand the nature and consequences of the act and the ability to distinguish between right and wrong as to the act.

Under the Durham rule,²⁶¹² a defendant was not held criminally responsible if his unlawful act was a product of mental disease or defect. Mental disease or defect included any abnormal condition of the mind that substantially affected mental or emotional processes and substantially affected behavior controls.²⁶¹³

Under the American Law Institute’s formulation in the Model Penal Code, the defendant is not responsible for criminal conduct if, at the time of the conduct, as a result of mental disorder he lacks substantial capacity either to appreciate the wrongfulness of the conduct or to conform his conduct to the requirements of the law.²⁶¹⁴ “Mental disease or defect” is not defined in the Model Penal Code but is specifically provided to exclude any abnormality manifested only by repeated or otherwise antisocial conduct.²⁶¹⁵ The New York test reads:

In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

1. The nature and consequences of such conduct; or

2. That such conduct was wrong. ²⁶¹⁶

It has been held that “mental disease or defect” does not include a psychopathic personality, moral perception of a low order or an irresistible impulse.²⁶¹⁷ Past history of mental illness is not per se proof of present mental disease or defect.²⁶¹⁸

The defendant’s “substantial capacity to know or appreciate” must be more than mere surface knowledge of his conduct; there must be depth and comprehension.²⁶¹⁹ As one court has held:

The fact that the defendant is able to verbalize the right answer to a question, to respond, for example, that murder or stealing is wrong, or the fact that he exhibited a sense of guilt as by concealment or by flight, is often taken as conclusive evidence that he knew the nature and the wrongfulness of his behavior. Yet one of the most striking facts about the abnormality of many psychotics is that their way of knowing is entirely different from that of the ordinary person. In psychiatric terms, their knowledge is usually divorced from all affect, which is to say that it is like the knowledge children have of propositions they can state but cannot understand; it has no depth and is divorced from comprehension. . . . The knowledge that should be deemed material in testing responsibility is more than surface intellection; it is the appreciation sane men have of what it is they are doing and of its legal and its moral quality. ²⁶²⁰

The “wrongfulness” of the conduct must be determined with reference to the commonly accepted standards of morality and not the defendant’s individual standards of right and wrong.²⁶²¹

There exists a presumption that most men are sane, upon which the prosecution always relies when there is no claim of insanity and upon which they may rely to a certain extent even when there is a claim of insanity.²⁶²² As is the case with other affirmative defenses, a defendant asserting the insanity defense has both the burden of rebutting the presumption²⁶²³ and the burden of establishing the affirmative defense by a preponderance of evidence.²⁶²⁴ Effective November 1, 1984, the defense of insanity, originally set forth in § 30.05 of the Penal Law, was repealed as an ordinary defense. Section 40.5 of the Penal Law reenacted the definition, without substantive change, and reconstituted the defense as an affirmative defense.²⁶²⁵

Under the former law, the defendant had the initial burden of going forward to rebut the presumption of sanity. The burden then shifted to the People to establish, beyond a reasonable doubt, the defendant’s sanity.²⁶²⁶ More specifically, the People had to show that the defendant did not lack substantial capacity to know or appreciate both the nature and consequences of his conduct, and that his conduct was wrong.²⁶²⁷

Under the current law, however, the burden no longer shifts to the People. Instead, the burden remains on the defendant to establish by a preponderance of the evidence either one of those same elements. The appropriateness of placing the burden on the defendant is based on the fact that it is he who is most able to produce evidence of his own state of mind—that is, the facts necessary to support the plea of insanity are peculiarly within the knowledge of the defendant.²⁶²⁸

While the question of who should bear the burden of proof has had an “irregular history” in New York,²⁶²⁹ the defense had been an ordinary defense from 1978 until November 1984, when the legislation became effective. Its rendition as an affirmative defense was prompted, in part, by the nationwide outcry expressing dissatisfaction with John Hinckley’s acquittal following the...