'In a Kind of Mad Way': A Historical Perspective on Evidence and Proof of Mental Incapacity

By Loughnan, Arlie | Melbourne University Law Review, December 2011 | Go to article overview

'In a Kind of Mad Way': A Historical Perspective on Evidence and Proof of Mental Incapacity


Loughnan, Arlie, Melbourne University Law Review


[This article examines the evidential and procedural aspects of claims based on mental incapacity in English courtrooms in the 'long' 18th century. It employs a frame the author has termed 'manifest madness' to analyse how such claims were articulated and elaborated at trial in this period This analysis reveals, first, the substantive significance of the accused's conduct; second, the part played by ordinary people; and third, the role of common knowledge of 'madness' in evidence and proof of mental incapacity for criminal law purposes. By reference to the law on what would now be called unfitness to plead, automatism and intoxication, this article demonstrates the utility of the 'manifest madness' frame for understanding the evidential and procedural practices attendant to mental incapacity claims in this period. The article then considers the insights this historical analysis provides into current criminal practices for proving mental incapacity.]

CONTENTS

I    Introduction
II   A Historical Approach to Evidence and Proof of Mental Incapacity
     in Criminal Law
III  'Manifest Madness' Applied: Beyond the Bounds of Insanity in the
     'Long' 18th Century
        A   The Substantive Significance of the Accused's Conduct
        B   'Madness' Evident or Obvious to Ordinary People
        C   Common Knowledge of 'Madness'
IV Rethinking Evidence and Proof of Mental Incapacity

I INTRODUCTION

In criminal trials, when mental incapacity is raised--whether for the purposes of exculpation, partial exculpation or for some other reason, such as to prevent a normal trial proceeding--it is often assumed to introduce distinctive and difficult issues of evidence and proof. When used in a criminal law context, mental incapacity connotes the absence of or impairment in the cognitive, volitional and moral capacities that are both assumed and required by the criminal law. (1) Insanity enjoys the highest profile of mental incapacity doctrines,

and, as is well known, distinctive procedural and evidentiary rules attach to the doctrine. (2) Since the development of the modern insanity doctrine in the early 19th century, insanity has been thought to be difficult to prove for criminal law purposes. (3) Perhaps by analogy with insanity, other types of mental incapacity are also dogged by concerns about their provability. A suspicion that mental incapacity is distinctively opaque in epistemological terms seems to account in part for the now ubiquitous practice of relying on expert psychiatric and psychological evidence in trials where mental incapacity is at issue. Such evidence is adduced on the basis that knowledge of 'abnormal' mental states--unlike knowledge of 'normal' mental states--is beyond the reach of the jury, although the jury is then called on to assess that expert evidence. (4) Yet, even with the benefit of expert evidence, criminal law evaluation and adjudication practices based on mental incapacity seem unable to escape doubts about the genuineness of the particular mental condition as raised in court, and the legitimacy of any legal outcome based on a particular instance of incapacity. (5)

Although claims based on mental incapacity seem haunted by doubts about their genuineness and legitimacy, it is possible to point to an era in which such claims were not beset by concerns about their provability. A close study of that era provides a useful perspective on the evidentiary and procedural practices relating to mental incapacity, placing into temporal relief the concerns that have become quite familiar in the current era. As I discuss below, in that era-defined as approximately up to the end of the 18th century--both George Fletcher's paradigm of 'manifest criminality' and my own 'manifest madness' frame assist in understanding the evaluation of criminality and mental incapacity, respectively. In this article, my analysis, which has been inspired by Fletcher's, is tested against evidentiary practices governing the law relating to unfitness to plead, automatism and intoxication. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

'In a Kind of Mad Way': A Historical Perspective on Evidence and Proof of Mental Incapacity
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.