Academic journal article Journal of Criminal Law and Criminology

Decision-Making in Criminal Defense: An Empirical Study of Insanity Pleas and the Impact of Doubted Client Competence

Academic journal article Journal of Criminal Law and Criminology

Decision-Making in Criminal Defense: An Empirical Study of Insanity Pleas and the Impact of Doubted Client Competence

Article excerpt

This Article presents an empirical study of attorney-client decision-making in a sample of 139 criminal cases in which the key decision was whether to pursue a clinically supported insanity defense. The study is of interest for two reasons: first, it augments the general literature on attorney-client interactions in criminal defense;(1) second, it sheds light on the relation between client involvement in decisions regarding the defense or disposition of criminal cases and defense attorneys' perceptions of their clients' competence.

The competence of criminal defendants to make decisions is of particular importance in the wake of the Supreme Court's 1993 decision in Godinez v. Moran.(2) In holding that the constitutional standard for competence to plead guilty is the same as the standard for competence to stand trial, the Court pointed out that defendants are called upon to make numerous decisions in the course of a criminal case, whether or not the case is tried.(3) To our knowledge, this article presents the only systematic study of the relation between client competence, as perceived by their attorneys, and decision-making participation.


In previous studies, we have investigated attorney-client interactions in random samples of criminal prosecutions and in a sample of tried cases.(4) Three main findings emerged from these studies. First, more than half of the defendants are described by their attorneys as passive participants in the overall defense,(5) with about one in ten described as uninvolved or "extremely passive."(6) Second, about ten percent of clients are described by their attorneys as recalcitrant, i.e., as rarely or never accepting the attorneys' advice.(7) Interestingly, passivity and recalcitrance are reported less frequently when attorneys are asked to focus specifically on situations in which the law requires personal client participation, such as the decision to plead guilty or, in tried cases, the decision to waive a jury trial, than when attorneys are asked to characterize clients' overall participation in decision-making.(8) The third main finding emerging from our previous research is that attorneys have some doubt about the mental capacity of their clients in eight to fifteen percent of felony cases, although mental health assessments are sought in less than half of these cases.(9) The prevalence of reported client passivity is substantially higher among clients whose competence is doubted than among clients whose competence is unquestioned by their attorneys.(10)


The rate of perceived mental impairment in the general defendant populations sampled in our previous studies was too low to permit a thorough examination of the relation between client mental impairment (as perceived by their attorneys) and attorney-client interaction. Because the rate of perceived impairment is likely to be substantially higher in a population of defendants with clinically supported insanity claims, these cases present an opportunity to study the impact of perceived impairment on the decision-making process.(11)

Decisions concerning the insanity defense also provide an interesting context for studying broad questions relating to the allocation of decision-making prerogatives in criminal defense. It is clear, for example, that attorneys are obligated to adhere to the instructions of competent clients who refuse to plead insanity.(12) It is not clear, however, that this norm entails the further obligation to facilitate client participation in decisions to pursue, or not to pursue, the defense. Thus, a study of insanity plea decisions presents a unique opportunity to explore the practical meaning of the legal norm of client autonomy in criminal defense.



The Center for Forensic Psychiatry (CFP) in Ann Arbor, Michigan, is a state-operated forensic hospital that conducts pre-trial evaluations for courts throughout the state. …

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