[ExI] insanity plea

[Stefano Vaj]

On 24 February 2013 17:56, Anders Sandberg <anders at aleph.se> wrote:

>  Stefano, how does the insanity plea work in the continental law
> tradition?
>

Traditionally, the McNaughton test is about whether the defendant did 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.

I also understand that the test is still somewhat relevant in Australia,
Canada, England and Wales, Hong Kong, India, the Republic of Ireland, New
Zealand, Norway and most U.S. states with the exception of Idaho, Kansas,
Montana and Utah, with the important caveat that jury trials are especially
prone to either nullification or distortion on the basis of the perceived
specifics of each case.

The continental, "civil law", tradition is more varied, but while it may be
practically more severe, it bases insanity defences on the "inability to
understand and to will" or "to want". Both should be present, and the first
refer to the reality where the defendant lives, the second to his or her
ability to controle his impulses and stimuli.

One main difference is that in principle any rational planning related to
completion of the crime or the avoidance of criminal sanctions, or
fear/awareness expressed in connection with the latter (as in a famous
case, when a certified psychiatric patient was convicted because of his
saying when calling the police "I know I will hang for that"), would
automatically bar any insanity defence. In the second, not necessarily so,
because elaborate and even astute courses of action, or the realisation of
possibile criminal prosecution, are perfectly compatible, respectively,
with a largely hallucinatory reality or with the inability to resist to a
criminal impulse.

-- 
Stefano Vaj
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