To focus on gender is to question everything. (1)
Gender has been well-established as a fruitful subject of research with an extensive body of literature. Yet some experts contend that, given the impact gender can have in a court of law, research involving gender and the law has been deficient. (2) In fact, in preparation for a special issue of Law and Human Behavior focused on gender issues, editors performed a search of the journal and located only 6 papers out of 293 between 1990 and 1996 that qualified as gender studies. (3) Of the six papers, none addressed gender and the jury. (4)
However in the last decade, gender has received more attention as a topic of research within the extra-legal context. (5) Extra-legal factors are those which do not constitute evidence, but which may nevertheless influence the jury in the disposition and sentencing of criminal cases. (6) Some examples of these factors include attractiveness, ethnicity and gender. (7) Although the effect of extra-legal factors on a jury has provoked disagreement among experts, (8) "there is a large and diverse body of factual data that documents the existence of various kinds of extra-evidential influences on real juries' decisions." (9)
Studies have examined the gender of an expert witness and the impact on jurors' decisions, (10) the effect of victim and juror gender in sexual abuse cases (11) and the relationship between the sex of the juror and the amount of evidence needed to reach a specific verdict. (12) Even so, the interaction between gender differences and the insanity defense is one area that merits much more attention than it has garnered thus far. There is a dearth of research into the differences between male and female jurors and insanity verdict decision-making. Furthermore, research on the relationship between the gender of the defendant and the gender of the juror is remarkably sparse. While numerous studies have examined juror gender and offender gender, few have focused on the interaction between these factors. (13)
In order to shed light on factors that affect a jury's decision-making in insanity cases, one must first explore perceptions of the insanity defense and how these attitudes are shaped and maintained. The importance of jury selection becomes especially evident in cases involving the insanity defense because individual biases may be polarized on the issue. (14) Once a juror is impaneled, a number of courtroom dynamics operate simultaneously, including the interaction between courtroom actors that can influence a juror's verdict. (15) Gender is one such factor that can influence the way a juror interprets the case facts and potentially affect the ultimate issue of verdict. (16)
The purpose of this Study is to broaden the investigation of the impact of gender differences within the context of the insanity defense. Specifically, the gender of the mock juror as well as the gender of the defendant is explored for any possible correlations in the determination of an insanity verdict. Due to the proven effect of gender in other empirical studies, further research is needed in this area to examine gender's potential effect on an insanity verdict.
II. THE HINCKLEY DECISION
Contemporary knowledge of the insanity defense can be traced to John Hinckley's trial for his assassination attempt on President Reagan in 1981. (17) The verdict, "Not Guilty by Reason of Insanity," (NGRI) is largely considered one of the most controversial legal decisions in the history of American criminal justice. (18) The scope and impact of Hinckley's insanity acquittal inspired intense reactions among the public and marked significant changes in the use of the insanity defense. (19) The verdict affected the areas of law, mental health and the complex relationship these two disciplines share within a court of law.
No previous reform campaign equaled the magnitude of reform following John Hinckley's acquittal. Thirty-four states changed their insanity defense statutes within two-and-a-half years of the Hinckley verdict. (20) After all thirteen counts against John Hinckley were adjudged NGRI, (21) committees of the U.S. House of Representatives and Senate set forth the most comprehensive revisions on the insanity defense in the Insanity Defense Reform Act of 1984 (IDRA). (22) The ripple effect of the Hinckley case is still evident in the pervasive negative attitudes toward the insanity defense, (23) and in the reluctance of judges to accept the defense and attorneys to utilize it. (24) Hinckley's acquittal not only inspired swift action by Congress, but also prompted an intense re-examination of the defense by legislators, practitioners, and scholars. (25) Due to this inquiry, research on the insanity defense has flourished since the Hinckley decision.
III. NEGATIVE ATTITUDES, MYTHS AND THE INSANITY DEFENSE
The complexity of the insanity defense is exacerbated by the contentious opinions of a suspicious public. A substantial body of research has been devoted to answering why people react so negatively and care so strongly about the handful of individuals who plead insanity. (26) Public opinion surveys on lay definitions of insanity reveal a largely negative approach toward the insanity defense. (27) The insanity defense, like the death penalty, arouses intense reactions from both supporters and detractors. In a punitive society, "Americans are not comfortable with the concept that a determination of legal insanity may carry a presumption that the defendant does not deserve to be punished, regardless of how horrible the crime may have been." (28)
Negative attitudes toward the insanity defense are borne from numerous influences. Prejudicial beliefs about mental illness lead to the stigmatization and harsh treatment of the mentally ill. Michael Perlin, "[a]n internationally-recognized expert on mental disability law," (29) stated that, as "the most despised and feared group in society," we are especially punitive toward the mentally disabled. (30) Perlin coined the term sanism to refer to the same kind of irrational fear and prejudice as racism. (31) Sanism is based on popular images of craziness and an absolute link between mental illness and dangerousness. (32) Previous research has shown some consensus among the public about the nature of mental illness stigma, (33) including the belief that persons with mental illness are dangerous. (34)
As the primary source of information, the media exerts an enormous influence on the public. With the advent of cable television and the Internet, the media wields even more power. Add to this mix the viewing public's fascination with crime, which has resulted in an abundance of crime-related programming. Yet despite years worth of data to the contrary, the media is guilty of perpetuating inaccurate perceptions of the mentally ill as violent. (35) For example, one study of American primetime television dramas found that 73% of all mentally ill characters were portrayed as violent. (36) In a similar content analysis of a United Press International database, researchers found that 86% of all print stories featuring former mental patients included a violent crime as its focus. (37) If such distortions are seen as real they may affect views of the insanity defense and help shape peoples' perceptions of the mentally ill. (38) Although most people have had little to no contact with the criminally insane, they still form strong preconceptions and attitudes based on information they informally encounter in the media and elsewhere. (39)
Skepticism toward the insanity defense also manifests itself in a number of erroneous "insanity myths" identified by Perlin. (40) "Our insanity defense jurisprudence is premised on a series of empirical and behavioral myths, myths that empirical research has revealed to be 'unequivocally disproven by the facts.'" (41) Some of the more common inaccuracies include the notion that the insanity defense is a "loophole" for criminals to escape punishment and "beat a rap." (42) However, research has shown that 11% of all felony arrests resulted in imprisonment while 67% of unsuccessful insanity pleas resulted in the same. (43) In other words, this hardly constitutes a "loophole" at all. (44)
Additionally, the public overestimates how often the insanity defense is raised as well as its success rate. (45) The public's estimate of the use of the insanity defense (37%) is forty-one times greater than the actual plea rate of 0.9%. (46) There are nine insanity pleas for every 1,000 felony cases of which 26% (about two) are successful. (47) The public's estimate of the number of insanity acquittals is eighty-one times the actual number. (48) The perceptions that the insanity defense is overused and is often successful can influence a juror's willingness to fairly consider the defense, even when appropriate.
Another common misconception is that insanity defendants "go free" after being adjudged NGRI. (49) This myth is at odds with the American public's need to punish those who break the law. "[P]eople dislike the insanity defense for both retributive and utilitarian reasons: they want insane lawbreakers punished, and they believe insanity defense procedures fail to protect the public." (50) However, in reality, society's condemnation of the mentally ill often leads to greater punishment. Empirical data has shown that a defendant who successfully pleas insanity is often detained for a significantly longer terms than if the defendant had not utilized an insanity plea. (51)
Years of research suggest "an enduring pattern of public animosity to the insanity plea. (52) In one telling study, Richard Jeffrey and Richard Pasewark found that, even after providing factual data on the actual use and success of the insanity defense, many study participants maintained their misconceptions that the defense is "overused and abused." (53) Thus, despite incontrovertible evidence, negative attitudes and the myths with which they are associated are not only prevalent but also appear inflexible. (54) inflexible. (54) Based on these findings, the majority of the public appears to punish all criminals, regardless of the existence of potentially exculpatory mental illness factors.
The body of literature examining biases toward the insanity defense is robust, demonstrating a largely skeptical and punitive public. The importance of society's animosity toward insanity and the widely believed myths about it cannot be overlooked. The negative attitudes recorded in the literature and maintained by the general public are significant because of their potential to affect trial outcomes. (55)
IV. THE IMPORTANCE OF JURY SELECTION
The composition of the jury is one of the most crucial aspects of any criminal case. (56) Of course, it is within a Court of law, versus the court of public opinion, where negative attitudes can have the most devastating consequences on another person's life. These consequences can mean the difference between receiving proper psychiatric treatment and incarceration. In order to study the process of jury decision-making, one must start with the most essential component: jury selection. (57) The process of voir dire entitles the defendant the right to be tried by an impartial jury. (58) Jury selection is premised on fairness, with the goal of identifying jurors who can apply the law without undue bias. (59)
The mechanics of jury decision-making is one area of research that has been particularly scrutinized. Given the powerful biases the insanity defense tends to invoke, jury selection is no easy task. (60) Jurors arrive at a courtroom with distinct ideas, attitudes and beliefs that have been cultivated by their unique life experience. (61) Jurors are not blank slates, but are individuals with their own biases and values that affect their legal decisionmaking. (62) Research indicates that people have experience-based "knowledge structures" that strongly influence their verdicts. (63) Further, past research on the insanity defense has clearly indicated that jurors' attitudes toward the mentally ill (64) and the insanity defense (65) influence their selection of verdicts when an insanity plea is presented.
In order to determine the factors driving juror attitudes and shaping their perceptions, researchers have called for further examination into those juror characteristics. (66) As previously mentioned, one specific focus of research on jury functioning has been the investigation of the impact that extra-evidential (legally irrelevant) factors may have on the disposition of criminal cases. (67) Although trial juries are expected to be impartial, extra-legal variables including gender have been shown to influence verdicts. (68)
V. PREVIOUS RESEARCH ON GENDER DIFFERENCES
Research suggests that a juror's gender may matter a great deal in legal decision-making. (69) Gender differences among jurors have been established in studies involving sexual assault, indicating that females are more likely to find a male defendant guilty. (70) Disparities have also been found regarding beliefs about psychiatry, with women more supportive of psychiatry in the courtroom. (71) Additional findings include a greater perception of risk by women, (72) and a greater variability in male verdicts versus females across the age span. (73)
These gender differences are even more pronounced when looking at the distinctions between male and female offenders. Some of the more consistent findings demonstrate that, in the case of violent crime, females are more likely to attack family members (like a spouse and/or children) and males are more likely to attack strangers. (74) Males tend to have criminal histories containing more violent offenses, (75) females spend less time in custody or incarceration than males, (76) and males are more likely to be sentenced to death. (77) There is a general agreement in the literature that overall, females are treated more leniently than males at every stage of the criminal justice system. (78) Archival data has shown that women consistently receive more lenient sentences. (79) One persistent explanation given for the leniency afforded to women has been the notion of judicial paternalism and chivalry (referenced below as the paternalistic/chivalrous thesis). (80) Researchers theorize that this preferential treatment stems from chivalrous, protective attitudes toward women linked to gender stereotypes. (81) These stereotypes dictate that women are weaker, more passive than men, less dangerous, less responsible for their crimes and more amenable to treatment. (82) Although females are underrepresented in criminal populations, sentencing offenders found guilty of identical crimes to vastly different terms of imprisonment because of the offenders' gender is inconsistent with commonsense notions of justice.
In response to widespread judicial sentencing disparities between race, class and gender the Sentencing Reform Act (SRA) was introduced in 1984. (83) One goal of this legislation was to reduce discrepancies in sentencing between men and women and shift the focus of sentencing criteria from the offender to the offense. (84) Since the enactment of the SRA, females still receive lighter sentences, albeit based on the case facts and the defendant's prior criminal history. (85) A survey of judges, found that even when men and women exhibited similar criminality "on paper," the judges applied differential sentences based on blameworthiness. (86) As compared to males, females statistically do not have extensive prior records and do not recidivate to the same degree as men. (87) Studies on contemporary sentencing practices corroborate the conclusion that any differences between the conviction rates of male and female offenders results from different offending and life-course patterns, even when gender-neutral decisionmaking criteria are utilized in courts. (88)
Gender differences also extend to causal forces behind criminal behavior. (89) Scholars have posited that, in explaining female criminality, society is more comfortable attributing violence by women to psychological and biological disturbances. (90) The public's reluctance to consider female violence without a reasonable medical explanation results in a consensus that females lack the same level of self-control as men and are therefore less accountable for their crimes. (91) These attitudes not only perpetuate antiquated stereotypes of women, but also disregard the concept of equal treatment under the law.
Research indicates that the paternalistic leniency accorded to women is not benign and is not in the best interest of women. (92) When females defy the conventions of femininity by committing a violent crime, this is considered "out of character" and "beyond understanding." Traditional gender role stereotypes reinforce that violence is the provenance of men and violent actions tend not to be viewed as abnormal for males, while women who stray from societal role expectations by committing serious crimes are considered deviant. (93)
Conversely, observers found empirical support for a concomitant theory to the paternalistic/chivalrous thesis--the evil woman thesis, which hypothesizes that women who exhibit aberrant behavior counter to proper gender roles are treated more harshly than their male counterparts. (94) Studies have shown that women are adjudged to serve longer terms than men for offenses like child abandonment and assault and are subject to greater punishment for their choice of an "unladylike offense." (95) In addition, female defendants are further marginalized by prosecutors who try to defeminize them by portraying them as lesbians, prone to violence or other traits contrary to "natural female patterns." (96) These anti-feminine stereotypes are utilized as a strategy to prejudice the jury and secure a conviction. (97)
Historical research has revealed a theory similar to the evil woman thesis found in the late eighteenth and nineteenth centuries. Researchers investigating gender-based sentencing patterns in Victorian England have found evidence of what they term doubly deviant women. (98) These women were guilty of both criminal offenses and deviations from feminine norms and were often treated more harshly than law-breaking men. (99) Women of higher status who broke the law but conformed to traditional gender roles, while showing compliance and remorse received what Barry Godfrey termed an "additional garnish of respectability" and were less harshly penalized. (100) Working class women did not fare as well, especially those who indicated a defiance and challenge to patriarchal authority. (101) In general however, women were still treated more leniently than males. (102) Researchers theorize this leniency reflected the courts' greater effort to civilize men, "the more important gender," on whose shoulders the Empire rested. (103)
As previous studies have shown, research on gender is needed because of its potential to influence the application and formation of the rule of law. (104) Sentencing disparities between male and female offenders have been addressed by the courts in the form of the SRA. (105) Researchers have theorized on the root causes between male and female criminality to develop a greater understanding of these differences. Further, the variability of opinions observed between male and female jurors point to the importance of gender in the courtroom as an area worthy of empirical inquiry. Collectively, these issues can become even more amplified in the complex atmosphere of an insanity defense trial.
VI. GENDER STUDIES AND THE INSANITY DEFENSE
There is limited descriptive empirical data on gender and the insanity defense. Fortunately, the tide has begun to turn; yet, overall, gender has received little attention in insanity research. The handful of studies that have investigated gender and insanity do reveal promising results. Researchers Valerie Hans and Dan Slater found that men and women define legal insanity differently. (106) Women were almost twice as likely to describe legal insanity using the phrase "don't know what you're doing," whereas men most often described legal insanity in other ways. (107) Consistent with the findings that females are more supportive of psychiatry, (108) females have also been found to attribute less responsibility for a criminal act to a defendant with a prior psychiatric history. (109) Conflicting data has been published on sentencing patterns between males and females, however females have generally been found more willing to consider a verdict of NGRI. (110) Indeed more research is needed to uncover gender-based discrepancies in legal decision-making and the insanity defense.
There is also limited literature regarding gender differences among the mentally ill, especially insanity defendants. (111) Despite the few research papers in this area, the data is compelling. Many of the same offending and sentencing gender patterns in non-insanity cases are seen in defendants who raise the insanity defense. Among female insanity defendants, prior criminal history and recidivism rates are low compared to males who tend to have more extensive criminal histories. (112) Statistically, females tend to commit one single violent crime and generally these crimes--which include murder, attempted murder and manslaughter--are more violent than crimes committed by males. (113) Victims of female offenders are predominantly spouses and children, (114) while a greater proportion of victims of crimes committed by males are strangers.
Several studies point to a disproportionate amount of NGRI judgments for females over males when charged with the same crime. Studies of male versus female insanity acquittees in Oregon found that 29% of women who were charged with homicide were found NGRI versus 9 % of men. (115) Howard Zonana and his colleagues found similar results in a Connecticut population. (116) Overall, prior research indicates an overrepresentation of female insanity acquittees as opposed to males. (117) Consistent with non-insanity sentencing data, females are more likely to spend less time confined in psychiatric wards of correctional facilities. (118) Compared to male insanity defendants, females are slightly older, received more education, more likely to be married, employed and overall have better social stability and support. (119) Researchers theorize these sociodemographics may be why females are considered more amenable and successful in treatment.
In Liya Xie's landmark study of insanity defendants in Japan, she compared male to female mentally ill offenders and corroborated much of the data seen in the United States and Canada. (120) Cross-cultural data of the mentally ill and insanity defendants are rarely seen yet her findings mirror many of the same descriptive statistics reported in North American research. Xie found that more females were charged for violent crimes against persons (55.9%) than were males (41.8%); 49.6% of women were charged with homicide whereas only 14.3% of men were charged and males were most often arrested for crimes of property (44.1%). (121) Her samples indicated that males victimized strangers (21.5%) more than females (3.3%). (122) Females were more likely to attack family members (46.7 %), which were most likely children.123
Dispositional differences between the genders in insanity cases have been analyzed to explain disparities in sentencing. Researchers address different underlying constructs and causal forces driving male and female criminality, which helps show the differences in punishments. (124) A public opinion poll revealed that violent acts by women were considered isolated incidents, perhaps reflecting a temporary loss of control, while men were motivated by external causes, such as anger and greed, and therefore were more likely to commit offenses again. (125) Modern studies have concluded that contextual factors of the offense and the defendant's criminal history, rather than gender bias, can explain the differences between sentences imposed on men and women today. (126)
As previously indicated, females tend to victimize relatives, spouses and children. In terms of public safety, attacking a family member is less threatening than attacking a stranger. Although their crimes are no less significant, females are judged less harshly because they are considered less dangerous. In line with this premise is the fact that female insanity defendants are also traditionally older, their crimes seem less random, and they tend to have a better support systems. (127) Statistically, men are more likely to commit violent offenses against strangers, tend to have longer criminal histories, and are therefore deemed more dangerous and warrant more correctional control.
Analyses of the degree of intimacy between the defendant and the victim are theorized to produce varying legal responses. Research has demonstrated that violence between intimates leads to more lenient punishment in some cases. (128) Intimate relationships serve as mitigating factors judges and juries utilize in arriving at verdicts and sentences. Intimate relationships inspire strong emotions and these emotions can at times decrease the defendant's culpability because they reduce aspects of premeditation. By contrast, violence against strangers appears more random, poses more of a threat, presumes inherently less emotion, and elicits stronger punishment from juries. (129) Females are found less responsible and sentenced more leniently than males by the very nature of their crimes, because the majority of their cases involve family members or intimates.
An analysis of empirical studies revealed a significant gap of gender research and insanity defense decision-making. Only one study was found that addressed verdict decision-making and the effect of gender of the defendant, juror, and victim in a mock trial in which the defendant pleads NGRI. (130) Tori Towers used a fictionalized transcript of a murder trial to assess the effects of gender on mock juror verdict (guilty vs. NGRI). (131) Each transcript was identical except for the manipulations of the gender of the defendant and the gender of the victim. Following the transcript, jurors were asked to render a verdict and provide length of sentence and/or institutionalization to determine the difference between male and female juror sentencing patterns. (132) The mental illness was never clearly articulated in the transcript, but rather referred to as a delusional state. Overall, more guilty verdicts were rendered for male defendants, more male jurors awarded guilty verdicts, and female jurors awarded more NGRI verdicts. (133) In addition, Towers found significant effects for the gender of the victim as it relates to verdict. (134) Defendants with female victims received more NGRI verdicts from female jurors, regardless of the gender of the defendant. (135)
Gender is a compelling subject in everyday life. Gender impacts the dynamics of interpersonal relationships and remains on the political and legal landscape in employment and wage discrimination and sexual harassment issues. In a court of law, gender differences can potentially influence the trial outcome. Fortunately investigators have begun this inquiry, but the amount of research in this area is sparse. Despite the limited amount of research on gender and the insanity defense, there is a solid foundation of data accumulated through archival and field investigations. This data provides a reference of actual cases and dispositional outcomes that is necessary to establish and compare empirical findings. Based on the results of actual cases and promising empirical studies, there is reason to believe defendant gender matters in guilt and sentencing decisions in insanity trials. The substantial lack of research that has directly tested this question provides the impetus for the present study.
VII. PURPOSE OF THE RESEARCH
The purpose of this study is to advance our understanding of the impact of gender differences within the context of the insanity defense. Specifically, the gender of the mock juror as well as the gender of the defendant is examined for any possible correlations in the determination of an insanity verdict. In addition, the present study seeks to empirically explore specific case variables such as the effects of control (control vs. no control), and status of mental illness (first break vs. psychiatric history) on juror decision-making. Previous research in this area has manipulated the number of mental illnesses, (136) as well as other evidentiary factors such as crime unusualness (137) and planning. (138)
Participants were 258 undergraduate college students who received course credit as part of their undergraduate psychology requirements. The sample consisted of 15% Caucasian, 25% African American, 40% Hispanic, 4% Asian and 20% categorized as "other." The gender breakdown was 68% female and 32% male and their average age was twenty-years-old (SD =4.43, range=17-47).
The stimulus materials consisted of six one-page, single-spaced vignettes of a simulated insanity defense trial. Each vignette featured a description of the discovery of a homicide. The crime scene was described, including some of the relevant manipulated variables discussed below. The police investigation revealed an eyewitness who provided circumstantial evidence leading to the arrest of the defendant. In every case, the defendant confessed to the crime. The psychological evaluation of the defendant was described as part of the trial, including a detailed description of the symptoms of the mental illness suffered by the defendant. A different mental illness was included in each of the six case vignettes read by participants. The type of disorder suffered by the defendant was described as either (1) schizophrenia, (2) bipolar disorder, (3) major depression, (4) post-traumatic stress disorder, (5) situational stressor or (6) substance-induced disorder. The descriptions of the mental illnesses were based on criteria from the American Psychiatric Association's Diagnostic and Statistical Manual IV-Text Revision.
Many aspects of the trial evidence were systematically varied across the six mental illness conditions. (139) The independent variables that will be discussed here included the status of the mental illness suffered by the defendant (first break vs. continuing problem), the defendant's level of control (free will vs. no personal control), the extent of the defendant's premeditation (premeditated vs. spontaneous) and the gender of the defendant (male vs. female). The primary dependent variable was the mock juror's verdict (guilty, not guilty, not guilty by reason of insanity). Participants also answered questions addressing facts about the case, insanity defense and mental illness attitudes and evaluated the degree of the defendant's mental illness. The questions following each case vignette were identical. These statements rated participants' opinions in key areas relevant to insanity defense verdicts such as responsibility (e.g., "How responsible do you think the defendant was for this crime?"), mental illness (e.g., "How likely is it that the defendant committed the crime because of a mental illness") and control (e.g., "How likely is it that the defendant was in control of his or her actions?") to name a few.
Participants were recruited via an online sign-in sheet through which they selected the time and date of their session from the dates available. The experimenter ascertained all participants were at least eighteen years of age and obtained informed consent. The participants were asked to assume the role of jurors and to render verdicts as if they were part of an actual jury. After reading each of the six case vignettes, participants were asked to act as jurors and render a categorical verdict (guilty, not guilty, or not guilty by reason of insanity). Participants were given jury instructions on the insanity defense taken from New York State statutes. These statutes followed the American Law Institute test for insanity and were consistent with the Insanity Defense Reform Act of 1984. (140) Following verdict selection, participants answered twenty-eight questions on 9-point Likert scales anchored by negative and positive responses. Participants completed dependent measures relating to each vignette which probed their evaluation of the trial facts, the trial evidence and inferences about the defendant and judgments about the case.
Mixed within the questionnaire, participants responded to manipulation checks for each of the manipulated variables, such as "[w]hat was the defendant's gender," to assess the effectiveness of the experimental manipulations. In addition, confidence ratings were elicited to determine the level of the participants' confidence in their answers (e.g., "How confident are you in your verdict choice?"). Each packet ended with a demographic sheet and asked background questions such as sex, age, race, prior jury experience, acquaintance or relation with law enforcement personnel and any experience with mental illness.
Stimulus materials were shuffled prior to each session to ensure random distribution. The timing of the administration of the insanity attitudes and knowledge scales was counterbalanced across participants, such that half of the participants completed the scales prior to reading the vignettes and the other half completed the scales after reading the vignettes. Experimenters monitored each session. Participants did not enter into group deliberation and were not allowed to engage in discussion during the experiment. When participants were done completing their packet, they were debriefed and thanked for their time.
The data support that gender, level of control and prior psychiatric history do affect jurors' decisions about the culpability of the defendant. The results highlight distinctions made by jurors on the importance of issues of control and the defendant's prior psychiatric history. A substantial difference can be seen in the inferences and attributions made by female versus male participants about insanity defendants.
E. Manipulation Checks
Participants provided agreement ratings for each of the three manipulated independent variables: defendant gender, control and mental illness status. The main effect of defendant gender (r=1.087, SE=.026, 95% CI:=1.037 to 1.137) demonstrates that participants were sensitive to manipulated gender variable. Participants also reported that the defendant was in control (e.g., "How likely is it that the defendant was in control of his or her actions at the time of the crime?") (r=.135, SE=.026, 95% CI:=.085 to .186) and that the defendant was experiencing a first break (e.g., "How likely is it that this is the first time the defendant had a problem with mental illness?") (r=.266, SE=.026, 95% CI:=.215 to .316) when these variables were manipulated. The main effect sizes indicate that the manipulations were successful and participants accurately perceived the defendant as intended for each vignette.
Because we were interested in the effect of gender, control and psychiatric history across all mental illnesses, we calculated average effect size estimates across all of the manipulated mental illnesses using meta-analytic methods. (141) First, the Pearson correlation coefficient r was calculated from Chi square analysis and independent sample t-tests for the relationships between the specified dichotomous independent variables (male vs. female, control vs. no control, first break vs. psychiatric history) and the dependent variables (verdict and attributions about the insanity defense) across all six mental illness conditions. Second, all effect sizes were converted to meta-analytic Zr for a more accurate measure of the individual main effects. Third, average effect sizes were calculated, including standard errors and 95% confidence intervals. Confidence intervals were calculated at the p < .05 level and were used as the basis for determining significance. The mean effect size is referred to in the subsequent discussion as r. (142) The standard error of the average means (SE) follows the r statistic in the reported data. Only statistically significant findings are discussed.
F. Effects of Gender, Control, and Status on Legal Decision
It is important to determine the effects of gender, control and psychiatric history on insanity verdicts and also on inferences that are relevant to the verdict decision, such as the likelihood that the defendant knew what he or she was doing. Based on previous research, it was hypothesized that male participants would render more guilty verdicts against male defendants, that male defendants would be found more responsible for their crimes and that male defendants would be found to have known what they were doing more so than female defendants. The findings related to the effects of gender, control and status on the legal decision did affect how jurors made attributions about legally relevant decisions (see Table 1). Though all of the factors did not affect verdict, the analysis revealed that the variables most strongly associated with guilty verdicts were the defendant's gender and level of control.
A significant effect size (r=.061, SE=.027, 95% CI:=.007 to .115) was obtained for the gender of the defendant as it relates to verdict. Contrary to the hypothesis, participants found female defendants guilty more than males. As reported earlier, the majority of gender research on insanity defendants demonstrates greater findings of guilt for male rather than female defendants. The higher number of guilty verdicts for female defendants also correlates with participants finding females more responsible for their crime (r=.082, SE=.026, 95% CI:=.032 to .132) and more aware of what they were doing (r=.060, SE=.026, 95% CI:=.010 to .110) when they committed their crime. Consistent with previous research, the results illustrate that female participants found the defendant less responsible (r=.058, SE=.026, 95% CI:=.006 to .107), that the defendant committed the crime because of a mental illness (r=.063, SE=.026, 95% CI:=.013 to .113) and that defendants were acting under an impulse when they committed their crime (r=.125, SE=.026, 95% CI:=.075 to. 175).
The analysis also shows a significant effect size for the level of control impairment as it relates to verdict (r=.061, SE=.027, 95% CI:=.007 to .115). Participants considered defendants guilty when they asserted to be in control of their actions during the commission of the crime. In line with these results, participants perceived defendants who were in control as more responsible for their crime (r=.059, SE= .026, 95% CI:=.009 to .110) and knew what they were doing (r=.l16, SE=.026, 95% CI:=.066 to. 166) versus those defendants who stated they had no control. Participants appear to suggest that having control and knowing what one is doing leads to attributions of responsibility and guilt.
The issue of psychiatric history was particularly influential on jurors' judgments. Although mental status did not affect verdict directly, defendants experiencing a first break elicited several significant effects. Participants found those defendants with a first break episode more likely to have been acting under an impulse (r=.071, SE=.026, 95% CI:=.021 to .121), more in control of their actions (r=.069, SE=.026, 95% CI:=.019 to .120), more responsible for the crime (r=.059, SE=.026, 95% CI:=.009 to. 109), and less likely to have committed a crime due to mental illness (r=.078, SE=.026, 95% CI:=.028 to .128) than those with a psychiatric history. Based on this data, participants may believe that defendants with a first break episode committed the crime because of an impulsive act, not because of a mental illness. For this reason, participants may be finding these defendants more responsible for their crime as well as more in control of their actions. Previous research has indicated that mental health status and degree of mental illness assumed the strongest relationship with verdict. (143) Although it was hypothesized that mental health history would affect verdict, this variable did not reach significance.
G. Effects of Gender, Control and Status on Actions
Juror inferences about the defendant's actions are equally important in an insanity case. The influence of mental illness on a defendant's actions speaks to the cognitive and volitional aspects of the tests for insanity and can affect verdict selection. As is shown, gender, level of control and mental illness status affect attributions about the defendant's actions (see Table 2). The result patterns generally mirror those seen in the effects on legal decision. Once again, perceptions of the defendant vary by gender. Based on previously reported findings, it was hypothesized that female participants would be more lenient in their perceptions of the defendant as being mentally ill. This hypothesis was supported. Female participants were more likely to believe that the defendant's actions were influenced by mental illness (r=.075, SE=.026, 95% CI:=.025 to .126), and mental illness was influential in their verdicts (r=.084, SE=.026, 95% CI:=.033 to .134). Females also considered the defendants more dangerous (r= .059, SE= .026, 95% CI:=.009 to. 110) than male participants which is congruent with previous research. Jurors were more likely to find that female defendants planned their crime more so than males (r=.067, SE=.026, 95% CI:=.017 to .117), which is consistent with the greater number of guilty verdicts rendered against females. These results are again contrary to what was predicted.
When defendants reported having less control over their behavior, participants believed mental illness was influential in their actions (r=.054, SE=.026, 95% CI:=.004 to .104), and these same defendants were considered more dangerous (r=.069, SE=.026, 95% CI:=.019 to .119). Jurors indicated that those defendants who did have control were also more likely to have planned their crime (r=.057, SE=.026, 95% CI:=.007 to .108). Participants appear to be endorsing the notion that having control leads to a greater ability to plan a crime and are therefore finding those defendants in control of their actions guilty.
Again, the status of the mental illness produced some interesting effects. Participants found mental illness was more likely to influence the defendant's actions when the defendant had a psychiatric history (r=.093, SE=.026, 95 % CI:=.043 to .143). Consistent with earlier findings, defendants experiencing a first break episode were found more likely to have planned the crime (r=.067, SE=.026, 95% CI:=.017 to .117). Participants appear generally less sympathetic to defendants suffering a first break which speaks to participants believing that these defendants were more in control and more responsible for their crime.
H. Effects of Gender, Control and Status on the Defendant's Mental Health
Inferences about the defendant's mental health are significant for their potential to affect evaluations about the defendant. Issues such as whether a defendant is actually mentally ill, can manage his or her illness or possesses the ability to care for one's self are related to matters of competence and criminal intent. The effects of gender, control, and status on the defendant's mental health present some mixed findings (see Table 3). As expected, female participants maintain their acceptance of mental illness as a cause of action and perceive the defendant as actually mentally ill (r=.073. SE=.026, 95% CI:=.022 to .123) rather than feigning. However, although female participants may acknowledge mental illness as a cause of action, they are still attributing more responsibility (r=.068, SE=.026, 95% CI:=.018 to .118) to the defendant who has a mental health history. This particular finding is troublesome because it is counter to an otherwise general acceptance of mental illness as a mitigating factor usually seen in female jurors. Further evidence of mixed results appear with male participants finding the defendants more likely to be able to take care of themselves (r=.080, SE=.026, 95% CI:=.030 to .131) given the mental illness and female participants believing the defendants were doing everything possible to manage their illness (r=.056, SE=.026, 95% CI:=.006 to. 107). Both of these findings are regardless of the gender of the defendant.
Female defendants' mental health history produced stronger effects leading to criminal responsibility (r=.052, SE=.026, 95% CI:=.002 to .102) than males' mental health history. Although the participants found females more guilty and responsible for their crimes than males, participants also found female defendants less able to manage their illness (r=.057, SE=.026, 95 % CI:=.007 to .107). This result is reminiscent of the attitudes mentioned earlier of females lacking self-control and ability to care for themselves.
In regards to general mental health, participants considered those defendants in control of their actions more likely to be able to manage their mental illness (r=.064, SE=.026, 95% CI:=.014 to .114). Defendants with a prior mental health history were indeed considered to be mentally ill (r=.134, SE=.026, 95% CI:=.084 to .184). Participants believed defendants with no prior psychiatric history were better able to take care of themselves (r=.057, SE=.026, 95% CI:=.007 to .107) and defendants with an ongoing psychiatric problem were better able to manage their illness (r=.125, SE=.026, 95% CI:=.074 to. 174).
This research is among the first to incorporate six levels of mental illness and numerous variables to determine the impact of gender in insanity defense cases. The manipulated variables affected participants' perceptions of the legal inferences required to render insanity verdicts. The analysis of these variables together addresses concerns that previous research has investigated a limited set of trial facts that are not representative of real insanity cases. Consistent with data reported by Norman Finkel and his fellow researchers, the data suggests that jurors are making discriminations among cases in terms of verdict, control, degree of responsibility, and degree of mitigation due to mental illness. (144)
The results indicate that the gender of the defendant obtained a significant effect as it relates to verdict. Contrary to previous findings, where judgments for females have traditionally been more lenient, female defendants were found guilty more so than their male counterparts. Consistent with these guilty verdicts, females were also deemed more responsible for their crimes, knew what they were doing and planned the crime more so than males. These results suggest a possible bias against female insanity defendants.
One potential explanation for these findings may be related to contemporary theories about ingroup behavior. Norbert Kerr and his fellow researchers proposed two possible theories to explain the interaction between juries and defendants: similarity-leniency and the black sheep effect (BSE). (145) In the context of a trial, jurors may categorize defendants as members of their ingroup or outgroup. Similarity-leniency theory dictates that members of an ingroup will treat other ingroup members more favorably. By contrast, the black sheep effect suggests that under certain conditions, ingroup members evaluate their own ingroup more harshly than similar outgroup members. (146) The black sheep effect was first reported by Jose Marques and others in studies on ingroup dynamics. (147) Kerr and others expanded the theory to include jury behavior and posited that the BSE may be tied to a violation of expectations. (148) When an individual deviates from prescribed norms, evaluations of that individual by members of that person's ingroup may be more extreme. Members of the ingroup respond negatively to these violations by distancing themselves from the unfavorable member and rendering harsher treatment than for an outgroup member. Observers theorize this behavior is an individual protection strategy intended to limit the threat of being associatively miscast. (149) In other words, guilt-by-association is avoided by derogating and banishing the "black sheep." The BSE theory also correlates with the evil woman and doubly deviant theories mentioned earlier, whereby females are treated more severely for violating feminine stereotypes.
Previous studies have shown that women jurors are particularly harsh on women defendants. (150) Given that a large majority of the present study's participants were female (68% female vs. 32% male), a black sheep effect may be responsible for the higher number of guilty verdicts toward female defendants. To add further support to this theory, Kerr and his fellow researchers maintained that in order for a BSE to be observed, evidence against a defendant must be strong. (151) The strength of the evidence bolsters jurors' certainty of the defendant's guilt, increasing the likelihood of a negative evaluation. In the present study, every defendant confessed to the crime, thereby substantially increasing the strength of the evidence against the defendant. Although this idea is only speculative, the investigation of a black sheep effect in insanity cases warrants further examination.
The higher number of guilty verdicts for females may also be an indication of a breakdown of paternalistic or chivalrous attitudes toward women resulting in more equal treatment. According to Towers, "as more females enter the criminal justice system, it may be that gender bias and gender-based attitudes hold less valence than when women's presence in the system was a rarity." (152)
The issue of control was also statistically related to verdict wherein those defendants who exhibited more control during their crime were more likely to be found guilty. The level of control the defendant expressed affected jurors' perception that the defendant knew what he/she was doing. Control also affected participants' inferences about the defendant's ability to plan the crime, which also lead to greater attributions of responsibility. These findings correspond with those of James Ogloff, whose participants reported the defendant's ability to control his behavior was an important factor in considering whether to find him NGRI. (153) Additionally, Canton Roberts and Stephen Golding reported that less planfully committed crimes resulted in higher proportions of insanity verdicts. (154) Though control is not directly tied to planfulness, participants appear to be inferring that a lack of control suggests a lack of planning in the commission of a crime.
Consistent with previous research, female participants were more lenient in their perception of the defendants. Overall, females found the defendants less responsible and were more willing to attribute the defendant's actions to mental illness than male participants. Mental illness was also more influential in their verdicts. This finding is related to females' greater willingness to accept mental illness as a mitigating factor. These results are corroborated by Slater and Hans, (155) who found that females were more open to psychiatry in the courtroom, and by Michael Faulstich, (156) who found that a greater number of female participants endorsed positive attitudes toward mental illness. In light of previous research, it is not clear why females also considered those with a psychiatric history more responsible for their crime. Female participants also considered the defendant more dangerous than male participants, a finding often witnessed in the literature. (157)
The current research suggests that participants may be biased against defendants experiencing a first break episode versus those defendants with a prior psychiatric history. This theory is evidenced by participants considering these defendants more in control of their actions, more responsible for the crime, and less likely to have committed a crime due to mental illness than those with a psychiatric history. This data indicates that jurors may not consider defendants experiencing a first break episode to be mentally ill, but rather acting on an impulse. This bias may result in a jury unwilling to consider an insanity defense for a defendant suffering from a first break, even when appropriate.
Conversely, participants were more likely to believe that the mental illness resulted in the crime when the defendant was described as having a history of mental illness. A vast amount of empirical research has consistently found that insanity acquittees are more likely to have an extensive prior psychiatric history. (158) In addition, John Monahan and Gloria Wood found that when a murderer was described as having a psychiatric history, mock jurors evaluated the defendant as having significantly less free will and as being less responsible for his crime. (159)
Although the effect sizes achieved in the present study are small, the results nevertheless support the importance of gender as a topic of research in insanity cases. The manipulations employed in this research design further elucidates the significance of control and prior psychiatric history in insanity research. These factors were shown to influence participants' perceptions of the defendant's culpability. As Nancy Steblay and others succinctly stated, the presence of even a small effect contradicts our legal presumption of innocence. (160)
J. Limitations and Directions for Future Research
Despite the results obtained, this study has several methodological limitations common to simulated jury studies. The ecological validity and generalizability of mock jury findings are often in question due to the lack of realism inherent in these studies. Arguments have been made praising the use of videotaped mock trials over written stimuli in order to capture the spirit of a live trial. It is difficult to replicate the gravity and integrity of a courtroom atmosphere using summarized case vignettes with an inexperienced jury-eligible sample. In defense of mock research designs, the use of written stimuli has been used successfully in previous research (161) and allows for specific manipulations of the variables of interest.
The use of college students as participants is another often-cited limitation to mock jury research. The concern often stems from testing a pool of participants who may not appreciate the seriousness of the research in question. Ideally, jury research would utilize actual jury members but access to these populations is usually restricted, logistically cost-prohibitive and difficult to schedule. In light of these drawbacks, researchers have investigated whether students differ drastically from the general adult population in rendering insanity defense verdicts (162) and the consensus is that they are remarkably similar. Studies utilizing mock juries provide a cost effective method of determining the issues worthy of more elaborate investigation. (163)
The next step for researchers is to determine whether similar attitudinal and verdict patterns are replicated in another sample. Replication attempts should consider the same variables tested in the present study, namely prior psychiatric history, level of control and gender of the defendant. These variables were shown to affect participants' perceptions of the legal inferences required to render insanity verdicts. One potential revision of the experimental design for future research concerns the six levels of mental disorder manipulated. Previous research has shown that more severe levels of mental disorder significantly affect verdict selection. (164) Preliminary results of an earlier study using the present data revealed that defendants diagnosed with schizophrenia, bipolar disorder and posttraumatic stress disorder were most likely to be found NGRI versus defendants with major depression, stress-induced or substance abuse disorders. Consistent with prior research, substance abuse-related disorders have been negatively related to NGRI verdicts. (165) Limiting the research to those conditions that have been shown to receive more NGRI verdicts allows for a greater examination of other factors related to verdict selection.
Another modification to the current study would be the addition of the manipulation of the gender of the victim. There has been little research addressing the interaction between the gender of the juror, the defendant, and the victim. However, Towers (166) and Holly Clark and Narina Nightingale (167) found that the gender of the victim has a significant impact on the verdict. The inclusion of this variable in future research requires further investigation.
The addition of group deliberation is another issue to be addressed in future research. Group deliberation should follow pre-deliberation verdict selection to gauge the change, if any, in overall verdict choice. Past research has shown that a high correlation exists between pre and post-deliberation verdicts. (168) However, the addition of group deliberation could shed more light on whether there is any bias effect or change in verdict selection among jurors considering an insanity plea. The composition of the deliberating juries could be manipulated such that some are predominantly female, predominantly male or evenly split to analyze differences in verdict selection. Manipulating the deliberating groups could also further explore any potential similarity-leniency or black sheep effects in verdict selection. Although this idea was purely speculative in the current study, it is a worthy avenue for future research.
Despite the weaknesses affiliated with mock studies, this research still provides a window into juror attitudes, opinions and verdict choice. (169) Mock studies allow the possibility of testing and developing psychological theory that can ultimately have ramifications in actual court proceedings. Jury selection is one area that can substantially benefit from the results of the present study and other studies like it. Attorneys can apply sound empirical findings on jury behavior toward a more effective voir dire process. (170)
There are several barriers to conducting fair jury selection, especially in insanity defense cases. Voir dire procedures typically restrict the amount of inquiry the attorneys may engage in with prospective jurors. In federal cases, judges routinely ask the jury pool questions and often do not probe enough and are not bound to ask questions the attorneys would like answered. (171) In addition, more courts are conducting "streamline[d]" voir dire that further limit attorney inquiry and may be insufficient to identify juror biases. (172) Brian Cutler and his fellow researchers found that extended voir dire would benefit defendants in insanity cases. (173) It is incumbent upon judges to expand voir dire procedures especially since their judicial powers allow this discretion. Without these precautions, a defendant may be at a serious disadvantage, which threatens his or her chance of a fair trial.
Based on the results of this study, defendants committing crimes during a first break episode may have difficulties raising an insanity defense even when appropriate. Attorneys may have to address juror skepticism about the extent of their mental illness at trial. Secondly, the results demonstrate a possible bias against female insanity defendants. In order to adequately address juror bias in insanity cases, measurements of biasing attitudes could be taken during voir dire to ensure fairness and equal protection under the law. Surveys specifically aimed at assessing negative attitudes toward mental illness or the insanity defense could be administered. Jennifer Skeem and others devised a scale measuring insanity defense attitudes (IDA-R), which could be a valuable instrument to help identify and exclude jurors with negative views of the insanity defense. (174)
Another precaution attorneys may want to consider is to refrain from relying on stereotypical rules of thumb to identify bias in the selection of jurors. (175) Based on previous empirical evidence demonstrating the black sheep effect, Kerr and others suggest that attorneys should be cautious in applying the similarity-leniency rule to jury selection in all trials. (176) "When the evidence against a defendant is very strong and the defendant and potential jurors are members of the same minority group, a defense attorney may, in fact, end up hurting his/her prospects for acquittal by selecting jurors based on their similarity to the defendant." (177)
The courts may also want to reconsider allowing jurors in insanity trials to learn about the laws governing the disposition of insanity acquittees. Jurors traditionally are not allowed to consider the disposition of the defendant because this information may influence their verdict. This is exactly why, in insanity cases, jurors should be informed of what occurs to an insanity defendant if he or she is found NGRI. In the absence of this knowledge, the jury may do its own assessments of dangerousness and choose incarceration, (178) and educating the jury could lead to better-informed verdicts.
The present study is among the first to systematically vary six levels of mental illness to determine whether gender, level of control and mental illness status have an effect on legal decision-making about insanity. As previous research has shown, complex relationships exist among juror and defendant characteristics and their influence on trial outcomes. (179) These dynamic relationships between jurors, defendants and trial facts are again corroborated by these results.
The current data provides evidence for the effect of gender in verdict decision-making and indicates a bias against female defendants. Consistent with prior research, these gender-biased outcomes support the theory of a black sheep effect but further examination of this effect is required in insanity cases. The analysis also reveals gender-based discrepancies based on inferences mock jurors made about insanity, which determined judgments and verdicts. Differences between male and female jurors have been touched upon in the literature, but greater clarification is needed, especially in the context of the insanity defense. The research also elucidates the importance of the level of control and prior psychiatric history and how these factors contribute to juror decision-making in insanity trials.
Despite gaps in the literature on jury research and gender differences in legal decision-making, the topic has gained momentum in recent years. The current research lends support to these empirical endeavors. In addition, the present study provides useful data for theoretical questions and practical applications relevant to insanity decisions. Considering gender's demonstrated effect on mock jurors and insanity verdicts, the subject deserves greater attention. The investigators who thus far have posed this research question agree that gender matters, and it matters a lot. (180)
(1.) Carrie Menkel-Meadow & Shari Seidman Diamond, Introduction: The Content, Method, and Epistemology of Gender in Sociolegal Studies, 25 LAW & SOC'Y REV. 221, 221 (1991) (quoting SIMONE DE BEAUVOIR, THE SECOND SEX (H.M. Parshley ed., Alfred A. Knopf, Inc. 1971)).
(2.) See Patricia A. Frazier & Jennifer S. Hunt, Introduction: Research on Gender and the Law: Where re We Going, Where Have We Been?, 22 LAW & HUM. BEHAV. 1, 1 (1998) (stating that "[t]his lack of attention ... is remarkable given the attention ... paid to experiences of other groups within the legal and criminal justice system").
(3.) Id. at 3.
(4.) See id. (discussing the specific, non-jury related gender issues addressed by each of the six papers).
(5.) See, e.g., David A. Abwender & Kenyatta Hough, Interactive Effects of Characteristics of Defendant and Mock Juror on U.S. Participants' Judgment and Sentencing Recommendations, 141 J. Soc. PSYCHOL. 603 (2001).
(6.) Tori M. Towers, Gender and the Not Guilty by Reason of Insanity Plea 2 (Dec. 1996) (unpublished dissertation in partial fulfillment of the requirements for the degree of Doctor of Philosophy, University of Washington) (on file with author).
(8.) See generally Steven Fein et al., Hype and Suspicion: The Effects of Pretrial Publicity, Race, and Suspicion on Jurors' Verdicts, 53 J. SOC. ISSUES 487 (1997); James D. Johnson et al., Justice is Still Not Colorblind: Differential Racial Effects of Exposure to Inadmissible Evidence, 21 PERSONALITY & SOC. PSYCHOL. BULL. 893 (1995).
(9.) Kathleen C. Gerbasi et al., Justice Needs a New Blindfold: A Review of Mock Jury Research, 84 PSYCHOL. BULL. 323, 323 (1977).
(10.) See, e.g., Regina A. Schuller et al., The Impact of Expert Testimony on Jurors' Decisions: Gender of the Expert and Testimony Complexity, 35 J. APPLIED SOC. PSYCHOL. 1266 (2005).
(11.) See, e.g., Holly L. Clark & Narina N. Nightingale, When Jurors Consider Recovered Memory Cases: Effects of Victim and Juror Gender, 25 J. OFFENDER REHABILITATION 87 (1997).
(12.) See, e.g., Kathleen McNamara et al., Verdict, Sentencing, and Certainty as a Function of Sex of Juror and Amount of Evidence in a Simulated Rape Trial, 72 PSYCHOL. REP. 575 (1993).
(13.) L. Forsterlee et al., The Effects of a Victim Impact Statement and Gender on Juror Information Processing in a Criminal Trial: Does the Punishment Fit the Crime?, 39 AUSTRALIAN PSYCHOLOGIST 57, 59 (2004).
(14.) See, e.g., Emily A. Keram, The Insanity Defense and Game Theory: Reflections on Texas v. Yates, 30 J. AM. ACAD. PSYCHIATRY & L. 470 (2002).
(15.) See generally Fein et al., supra note 8; Johnson et al., supra note 8.
(16.) See generally Schuller et al., supra note 10; Clark & Nightingale, supra note 11; McNamara et al., supra note 12.
(17.) See United States v. Hinckley, 525 F. Supp. 1342 (D.D.C. 1981).
(18.) Anne S. Emanuel, Guilty But Mentally Ill Verdicts and the Death Penalty: An Eighth Amendment Analysis, 68 N.C.L. REV. 37, 37 (1989).
(19.) See HENRY J. STEADMAN ET AL., BEFORE AND AFTER HINCKLEY: EVALUATING INSANITY DEFENSE REFORM 2 (1993) (discussing how "Hinckley's insanity acquittal sparked a flurry of legislative rhetoric and public inquiry about how to stop such 'abuses' in the future"); see also Emanuel, supra note 18, at 42 (stating that "[b]y 1984, notwithstanding widespread opposition from the American Bar Association and other," Michigan, Indiana, and "ten additional states had adopted guilty but mentally ill statutes").
(20.) STEADMAN ET AL., supra note 19, at 139.
(21.) Id. at 42, 47.
(22.) Id. ; see also 18 U.S.C.A. [section] 17 (2000).
(23.) See Michael L. Perlin, "The Borderline Which Separated You From Me": The Insanity Defense, the Authoritarian Spirit, the Fear of Faking, and the Culture of Punishment, 82 IOWA L. REV. 1375, 1380 (stating that, post-Hinckley, "[t]o a significant percentage of the American public, the insanity defense is a 'howling beast' that has 'double-crossed' efforts at the implementation of a sane (irony intended) criminal justice system"); Valerie P. Hans, An Analysis of Public Attitudes Toward the Insanity Defense, 24 CRIMINOLOGY 393, 393 (1986) (stating that "[r]esults from a public opinion survey of knowledge, attitudes, and support for the insanity defense indicate that people dislike the insanity defense ... [because] they want insane law-breakers punished, and they believe that insanity defense procedures fail to protect the public").
(24.) Hans, supra note 23, at 394 (discussing that the fact that insanity pleas are only successful in a small proportion of cases "suggests that judges ... are skeptical of the defense"); Michael L. Perlin, Myths, Realities, and the Political World: The Anthropology of Insanity Defense Attitudes, 24 BULL. AM. ACAD. PSYCHIATRY & L. 5, 11 (1996) (stating that "the insanity defense is used in only about one percent of all felony cases").
(25.) See Perlin, supra note 24, at 7-8.
(26.) Phoebe C. Ellsworth et al., The Death-Qualified Jury and the Defense of Insanity, 8 LAW & HUM. BEHAV. 81, 82-83 (1984) (discussing various studies examining the public's attitudes on the insanity defense).
(27.) Hans, supra note 23, at 393; Valerie P. Hans & Dan Slater, "Plain Crazy ": Lay Definitions of Legal Insanity, 7 INT'L J.L. & PSYCHIATRY 105, 105, 113 (1984).
(28.) Keram, supra note 14, at 473.
(29.) New York Law School: Professor Michael L. Perlin, http://www.nyls.edu/pages/389.asp (last visited Apr. 2, 2007).
(30.) Perlin, supra note 24, at 22 (quoting Deborah C. Scott et al., Monitoring Insanity Acquittees: Connecticut's Psychiatric Security Review Board, 41 HOSP. & COMMUNITY PSYCHIATRY 980, 982 (1990)).
(31.) Perlin, supra note 24, at 17.
(32.) Id. at 16.
(33.) See generally S. Martin Taylor & Michael J. Dear, Scaling Community Attitudes Toward the Mentally Ill, 7 SCHIZOPHRENIA BULL. 225 (1981); Ian F. Brockington et al., The Community's Tolerance of the Mentally Ill, 162 BRIT. J. PSYCHIATRY 93 (1993).
(34.) Amy C. Watson et al., From Whence Comes Mental Illness Stigma?, 49 INT'L J. SOC. PSYCHIATRY 142 (2003).
(35.) OTTO F. WAHL, MEDIA MADNESS: PUBLIC IMAGES OF MENTAL ILLNESS 56-86 (1995).
(36.) George Gerbner et al., Health and Medicine on Television, 305 NEW ENG. J. MED. 901, 902 (1981). This comes in stark contrast to the 40% of "normal" characters that are portrayed on these dramas as violent, Id.
(37.) Eric Silver et al., Demythologizing Inaccurate Perceptions of the Insanity Defense, 18 LAW & HUM. BEHAV. 63, 64 (1994).
(38.) Hans & Slater. supra note 27, at 105; see generally Dan Slater & William R. Elliott, Television's Influence on Social Reality, 68 Q. J. SPEECH 69 (1982) (discussing previous research demonstrating a relationship between television viewing habits and perceptions of violence in society).
(39.) WAHL, supra note 35, at 87-88 (stating that "since the information is frequently inaccurate, it may be more appropriate to say that the mass media are a primary source of the public's misinformation about mental illness").
(40.) Perlin, supra note 24, at 11-12.
(41.) Id. at 11 (citing Michael L. Perlin, Whose Plea Is It Anyway? Insanity Defense Myths and Realities, 79 PHILADELPHIA MED. 5, 6 (1983)).
(42.) Hans, supra note 23, at 393-94; Silver et al., supra note 37, at 65.
(43.) Silver et al., supra note 37, at 69.
(44.) Id. at 69.
(45.) Id. at 67.
(47.) Id. at 67-68.
(48.) Id. at 68.
(49.) Perlin, supra note 24, at 12.
(50.) Hans, supra note 23, at 393.
(51.) Perlin, supra note 24, at 12 (stating that NGRI acquittees spend almost double the amount of time that defendants convicted of similar charges spend in prison settings and often face a lifetime of post-release judicial oversight).
(52.) Hans, supra note 23, at 393-94.
(53.) Richard W. Jeffrey & Richard A. Pasewark, Altering Opinions About the Insanity Plea, 11 J. PSYCHIATRY & L. 29, 29 (1984).
(54.) Jennifer L. Skeem et al., Venireperson's Attitudes Toward the Insanity Defense: Developing, Refining, and Validating a Scale, 28 LAW & HUM. BEHAV. 623, 624-25 (2004).
(55.) See generally Norman J. Finkel & Sharon F. Handel, Jurors and Insanity: Do Test Instructions Instruct?, 1 FORENSIC REP. 65 (1988); Keram, supra note 14.
(56.) See Skeem et al., supra note 54, at 624 (stating that "[f]air jury trials are contingent upon the selection of jurors who can apply the law without bias").
(57.) Id. (stating that jury selection, which is also called voir dire, has been described as "'perhaps the most important stage of any trial'").
(59.) Esperanza Guzman, Comment, Standefer v. State. The Creation of the Criminal Defendant's Diminished Right to a Trail by a Fair and Impartial Jury, 37 ST. MARY'S L.J. 477, 482-83 (2006).
(60.) Skeem et al., supra note 54, at 624-25.
(61.) Id. at 623.
(64.) See Perlin, supra note 24, at 5-20; Canton F. Roberts et al., Implicit Theories of Criminal Responsibility: Decision Making and the Insanity Defense, 11 LAW & HUM. BEHAV. 207 (1987).
(65.) See Perlin, supra note 24, at 5-20; Cecelia E. Updike & Geraldine A. Shaw, Differences in Attitudes Toward the Temporary Insanity Defense and the Insanity Defense, 13 AM. J. FORENSIC PSYCHOL. 59 (1995).
(66.) See, e.g., Skeem et al., supra note 54.
(67.) See Towers, supra note 6.
(68.) David A. Abwender & Kenyatta Hough, Interactive Effects of Characteristics of Defendant and Mock Juror on U.S. Participants' Judgment and Sentencing Recommendations, 141 J. SOC. PSYCHOL. 603, 610-13 (2001).
(69.) Jonathan M. Golding et al., The Believability of Repressed Memories, 19 LAW & HUM. BEHAV. 569, 563 (1995).
(70.) See, e.g., Holly G. Key et al., Perceptions of Repressed Memories: A Reappraisal, 20 LAW & HUM. BEHAV. 555, 558 (1996).
(71.) Dan Slater & Valerie P. Hans, Public Opinion of Forensic Psychiatry Following the Hinckley Verdict, 141 AM. J. PSYCHIATRY 675, 678 (1984).
(72.) See Michael R. Greenberg, & Donna F. Schneider, Gender Differences in Risk Perception: Effects Differ in Stressed vs. Non-Stressed Environments, 15 RISK ANALYSIS 503 (1995).
(73.) See Finkel & Handel, supra note 55, at 65.
(74.) Ira K. Packer, Homicide and the Insanity Defense: A Comparison of Sane and Insane Murders, 5 BEHAV. SCI. & L. 25, 34 (1987) (stating that "[t]he findings in this study are consistent with previous reports ... that the victims of female murderers are predominantly their spouses and children"); Thad Reuter, Why Women Aren't Executed: Gender Bias and The Death Penalty, 23 HUM. RTS. 10, 10 (1996).
(75.) Darrell Steffensmeier et al., Gender and Imprisonment Decisions, 31 CRIMINOLOGY 411, 433-34 (1993).
(76.) Ilene H. Nagel & Barry L. Johnson, The Role of Gender in a Structured Sentencing System: Equal Treatment, Policy Choices, and the Sentencing of Female Offenders under the United States Sentencing Guidelines, 85 J. CRIM. L. & CRIMINOLOGY 181, 186 (1994) (stating that "[w]omen are more likely than similarly situated men to receive suspended sentences or probation").
(77.) Reuter, supra note 74, at 10.
(78.) Barry S. Godfrey et al., Explaining Gendered Sentencing Patterns for Violent Men and Women in the Late-Victorian and Edwardian Period, 45 BRIT. J. CRIMINOLOGY 696, 699 (2005); see Steffensmeier et al., supra note 75, at 411-12 (stating that "[t]he studies substantiate the widely held belief that female defendants receive more lenient treatment (apparently) because of judicial paternalism, the social costs to children and families of sending women to prison, or the view that female defendants are less dangerous and more amenable to rehabilitation than male defendants").
(79.) Nagel & Johnson, supra note 76, at 187.
(80.) Id. at 189; Steffensmeier et al., supra note 75, at 411-13.
(81.) Nagel & Johnson, supra note 76, at 188-89.
(82.) Id. at 188.
(83.) Id. at 191.
(85.) Id. at 188-89.
(86.) Steffensmeier et al., supra note 75, at 434.
(87.) Liya Xie, Gender Difference in Mentally Ill Offenders: A Nationwide Japanese Study, 44 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 714, 722 (2000).
(88.) Godfrey et al., supra note 78, at 696. Life-course patterns "emerge as additional information on the offender and their situation in court or during the process of prosecution." Id.
(89.) Scott Commerson, Villain or Victim? Myths, Gender and the Insanity Defense, 22 DEV. MENTAL HEALTH L. 1, 1 (2003).
(90.) Commerson, supra note 89, at 1.
(91.) See Nagel & Johnson, supra note 76, at 189.
(92.) Id. at 189-90.
(93.) Id. ; see Forsterlee et al., supra note 13, at 58.
(94.) Id. at 115.
(95.) Nagel & Johnson, supra note 76, at 189.
(96.) Reuter, supra note 74, at 11.
(98.) Godfrey et al., supra note 78, at 696.
(99.) Id. at 696, 699.
(100.) Id. at 715.
(101.) Id. at 714-16.
(102.) Id. at 699.
(103.) Id. at 701,717.
(104.) Frazier & Hunt, supra note 2, at 1-2.
(105.) Nagel & Johnson, supra note 76, at 190-91.
(106.) Hans & Slater, supra note 27, at 109-10.
(107.) Id. at 109.
(108.) See generally Slater & Hans, supra note 71.
(109.) See generally Michael E. Faulstich, Effects Upon Social Perceptions of the Insanity Plea, 55 PSYCHOL. REP. 183 (1984).
(110.) Finkel & Handel, supra note 55, at 74-75; Towers, supra note 6, at 29.
(111.) See Renee L. Binder & Dale E. McNiel, The Relationship of Gender to Violent Behaviour in Acutely Disturbed Psychiatric Patients, 51 J. CLINICAL PSYCHIATRY 110 (1990); Sheilagh Hodgins et al., Women Declared Insane: A Follow-Up Study, 8 INT'L J. L. & PSYCHIATRY 203 (1986); A. Maden et al., A Criminological and Psychiatric Survey of Women Surviving a Prison Sentence, 34 BRIT. J. CRIMINOLOGY 172 (1994); Jeffrey L. Rogers et al., Women in Oregon's Insanity Defense System, 11 J. PSYCHIATRY & L. 515 (1983); Ann Seig et al., A Comparison of Female Versus Male Insanity Acquittees in Colorado, 23 BULL. AM. ACAD. PSYCHIATRY & L. 523 (1995); Xie, supra note 87; Howard V. Zonana et al., Part II: Sex Differences in Persons Found Not Guilty By Reason of Insanity: Analysis of Data from the Connecticut NGRI Registry, 18 BULL. AM. ACAD. PSYCHIATRY & L. 129 (1990).
(112.) Forsterlee et al., supra note 13, at 59; Packer, supra note 74, at 33; Seig et al., supra note 111, at 528; Zonana et al., supra note 111, 134-35.
(113.) Hodgins et al., supra note 111, at 205; Maden et al., supra note 111, at 177; Rogers et al., supra note 111, at 529; Seig et al., supra note 111, at 529.
(114.) Elissa P. Benedek, Women and Homicide, in THE HUMAN SIDE OF HOMICIDE 150, 152 (Bruce L. Danto, John H. Brahns, & Austin H. Kutscher eds., 1982); A. E. Daniel & P. W. Harris, Female Homicide Offenders Referred for Pre-Trial Psychiatric Examinations: A Descriptive Study, 10 BULL. AM. ACAD. PSYCHIATRY & L. 261, 262 (1982); Packer, supra note 74, at 34; Richard A. Pasewark et al., The Insanity Plea in New York State, 1965-1976, 51 N.Y. ST. B.J. 186, 218 (1979); Ellen Rosenblatt & Cyril Greenland, Female Crimes of Violence, 16 CANADIAN J. CRIMINOLOGY & CORRECTIONS 173, 176-77 (1974).
(115.) Rogers et al., supra note 111, at 522.
(116.) Zonana et al., supra note 111, at 138-41.
(117.) Pasewark et al., supra note 114, at 188; Rogers et al., supra note 111, at 523-25; Seig et al., supra note 111, at 526; Henry J. Steadman, Insanity Acquittals in New York State, 1965-1978, 137 AM. J. PSYCHIATRY 321, 322 (1980).
(118.) Kirk Heilbrun et al., Comparing Females Acquitted by Reason of Insanity, Convicted, and Civilly Committed in Florida: 1977-1984, 12 LAW & HUM. BEHAV. 295, 297 (1988).
(119.) See Xie, supra note 87, at 717-18; Seig et al., supra note 111, at 525-26; Zonana et al., supra note 111, at 133.
(120.) See Xie, supra note 87, at 716.
(121.) Id. at 718.
(124.) See Commerson, supra note 89; Rogers et al., supra note 111, at 529; Zonana et al., supra note 111, at 139-40.
(125.) Michael E. Faulstich & John Ross Moore, The Insanity Plea: A Study of Societal Reactions, 8 LAW & PSYCHOL. REV. 129, 132 (1984).
(126.) Godfrey et al., supra note 78, at 715-16.
(127.) See Rogers et al., supra note 111, at 529; Seig et al., supra note 111, at 529-30; Zonana et al., supra note 111, at 138.
(128.) Myrna Dawson, Rethinking the Boundaries of Intimacy at the End of the Century: The Role of Victim-Defendant Relationship in Criminal Justice Decisionmaking Over Time, 38 LAW & SOC'Y REV. 105, 125 (2004); Terance D. Miethe, Stereotypical Conceptions and Criminal Processing: The Case of the Victim-Offender Relationship, 4 JUST. Q. 571, 589-90 (1987); Elizabeth Rapaport, The Death Penalty and Gender Discrimination, 25 L. & SOC'Y REV. 367, 380-81 (1991); William B. Waegel, Case Routinization in Investigative Police Work, 28 Sue. PROBS. 263 (1981).
(129.) Dawson, supra note 128, at 132.
(130.) Towers, supra note 6, at 22.
(136.) See Finkel & Handel, supra note 55.
(137.) See Kerri L. Pickel, The Effects of Motive Information and Crime Unusualness on Jurors' Judgments in Insanity Cases, 22 LAW & HUM. BEHAV. 571 (1998).
(138.) See Canton F. Roberts & Stephen L. Golding, The Social Construction of Criminal Responsibility and Insanity Defense, 15 LAW & HUM. BEHAV. 349, 356 (1991).
(139.) The study used a 6 (type of defendant) X 27+4 (variables relating to characteristics of the defendant and of the crime) mixed factorial design. The type of mental illness (6 levels) was manipulated within participants such that each participant read six vignettes, one for each type of illness. All other variables relating to the characteristics of the crime and the characteristics of the defendant were manipulated between participants using a fractional factorial design which permits the examination of a trial by including many variations. Only the variables of interest to this analysis will be discussed: Additional independent variables included the status of treatment (continuing with treatment as needed vs. recommended treatment discontinued), the defendant's affect at trial (normal vs. flat), the gruesomeness of the act (including bizarre violence and excessive force vs. no bizarre violence or excessive force), the relationship of the defendant to the victim (stranger vs. spouse/child), the age of the victim (child vs. adult), and the defendant's post-crime behavior (disorganized vs. calm/logical). See, e.g., Dennis P. Stolle et al., Fractional Factorial Designs for Legal Psychology, 20 BEHAV. SCI. & L. 5 (2002); Brian L. Cutler et al., Nonadversarial Methods for Sensitizing Jurors to Eyewitness Evidence, 20 J. APPLIED SOC. PSYCHOL. 1197 (1990); Brian C. Smith et al., Jurors' Use of Probabilistic Evidence, 20 LAW & HUM. BEHAV. 49 (1996).
(140.) MODEL PENAL CODE [section] 4.02(1)(C) (Official Draft and Revised Comments 1985); Insanity Defense Reform Act of 1984, 18 U.S.C. [section] 17 (2000).
(141.) Nancy M Steblay et al., The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review, 23 LAW & HUM. BEHAV. 219, 220-21 (1999).
(142.) Id. at 222.
(143.) Ronald L. Poulson et al., Mock Jurors' Insanity Defense Verdict Selections: The Role of Evidence, Attitudes, and Verdict Options, 12 J. SOC. BEHAV. & PERSONALITY 743, 754 (1997); Ellsworth et al., supra note 26, at 89-90; Roberts et al., supra note 64, at 222-23.
(144.) See Norman J. Finkel et al., Insanity Defenses: From the Jurors' Perspective, 9 LAW & PSYCHOL. REV. 77 (1985).
(145.) Norbert L. Kerr et al., Defendant-Juror Similarity and Mock Juror Judgments, 19 LAW & HUM. BEHAV. 545, 547 (1995).
(146.) Jose M. Marques et al., The 'Black Sheep Effect': Extremity of Judgments Towards Ingroup Members as a Function of Ingroup Identification, 18 EUR. J. SOC. PSYCHOL. 1, 4 (1988).
(148.) Kerr et al., supra note 145, at 548.
(149.) Scott Eidelman & Monica Biernat, Derogating Black Sheep: Individual or Group Protection?, 39 J. EXPERIMENTAL Soc. PSYCHOL. 602, 607 (2003).
(150.) See F. LEE BAILEY & HENRY B. ROTHBLATT, SUCCESSFUL TECHNIQUES FOR CRIMINAL TRIALS 199 (2d ed. 1985).
(151.) Kerr et al., supra note 145, at 561.
(152.) Towers, supra note 6, at 42.
(153.) See James R. P. Ogloff, A Comparison of Insanity Defense Standards on Juror Decision Making, 15 LAW & HUM. BEHAV. 509, 526 (1991).
(154.) Roberts & Golding, supra note 138, at 370-71.
(155.) Slater & Hans, supra note 71, at 678.
(156.) See Faulstich, supra note 109.
(157.) Id. at 131.
(158.) Norman J. Finkel & Jennifer L. Groscup, Crime Prototypes, Objective Versus Subjective Culpability and a Commonsense Balance, 21 LAW & HUM. BEHAV. 209, 217-19 (1997).
(159.) John Monahan & Gloria L. Wood, Psychologically Disordered and Criminal Offenders: Perceptions of Their Volition and Responsibility, 3 CRIM. JUST. & BEHAV. 123, 130-32 (1976).
(160.) Steblay et al., supra note 141, at 229.
(161.) See Finkel & Handel, supra note 55, at 71; Roberts & Golding, supra note 138, at 354-57.
(162.) See Finkel & Handel, supra note 55, at 71-72, 77; Roberts & Golding, supra note 138, at 354.
(163.) See Towers, supra note 6, at 4.
(164.) See Poulson et al., supra note 143, at 753-54.
(165.) See Richard W. Jeffrey et al., Insanity Plea: Predicting Not Guilty by Reason of Insanity Adjudications, 16 BULL. AM. ACAD. PSYCHIATRY & L. 35, 38 (1988).
(166.) See Towers, supra note 6, at 32.
(167.) See Clark & Nightingale, supra note 11, at 102.
(168.) See REID HASTIE ET AL., INSIDE THE JURY 59-82 (1983); HARRY KALVEN JR. & HANS ZEISEL, THE AMERICAN JURY 486-90 (1966).
(169.) See Ogloff, supra note 153, at 528-29.
(170.) Kerr et al., supra note 145, at 562.
(171.) Brian L. Cutler et al., Jury Selection in Insanity Defense Cases, 26 J. RES. PERSONALITY 165, 166-67 (1992).
(172.) Cathy Johnson & Craig Haney, Felony Voir Dire: An Exploratory Study of Its Content and Effect, 18 LAW & HUM. BEHAV. 487, 488 (1994).
(173.) Cutler et al., supra note 171, at 181.
(174.) Skeem et al., supra note 54, at 630.
(175.) See Robert J. MacCoun, Experimental Research on Jury Decision-Making, 244 SCI. 1046, 1048-49 (1989).
(176.) Kerr et al., supra note 145, at 563.
(178.) See Keram, supra note 14, at 471-72.
(179.) See Tanya S. Taylor & Harmon M. Hosch, An Examination of Jury Verdicts for Evidence of a Similarity-Leniency Effect, An Out-Group Punitiveness Effect or a Black Sheep Effect, 28 LAW & HUM. BEHAV. 587, 595-96 (2004).
(180.) See Forsterlee et al., supra note 13, at 64-65.
Christian Breheney *
Jennifer Groscup **
Michele Galietta ***
This research was part of the first author's Master's thesis at John Jay College of Criminal Justice. Portions of these results were presented at the 2005 and 2006 American Psychology-Law Society annual conferences. Correspondence should be addressed to the authors at Department of Psychology, John Jay College of Criminal Justice, City University of New York, 445 W. 59th St., New York, NY 10019-1199.
Associate Professor, Department of Psychology, John Jay College of Criminal Justice, City University of New York.
Associate Professor, Associate Professor, Department of Psychology, John Jay College of Criminal Justice, City University of New York.
Table 1 Effects of Gender, Control and Status on Legal Decision Participant Defendant Control of Mental health Gender gender Action status Verdict .051 .061 * .061 * .044 Responsible .058 * .082 * .059 * .059 * Knew what doing .036 .060 * .116 * .042 Committed crime .063 * .035 .048 .078 * b/c of MI Acting under .125 * .041 .032 .071 * impulse Control .032 .037 .135 * .069 * * p < .05 Table 2 Effects of Gender, Control and Status on Actions Participant Defendant Control of Mental health Gender Gender Action status MI influential .084 * .043 .035 .045 in verdict MI influential .075 * .037 .054 .093 * on actions Dangerous .059 * .028 .069 * .032 Planned crime .043 .067 * .057 * .067 * * p < .05 Table 3 Effects of Gender, Control and Status on Defendant's Mental Health Participant Defendant Control of Mental health Gender gender Action status Defendant .073* .037 .035 .134* actually MI Mental health .068* .052* .032 .038 history more resp. Def. can take .080* .032 .045 .057* care of self Def. can .056* .057* .064* .125* manage illness * p < .05…