Comparing the Difference between Duress and Insanity - Term Paper Example

The difference between duress and insanity is not always clear though both defenses are used in the criminal justice system. An individual with a duress defense must prove that they committed a crime because someone else threatened them with bodily harm. A person who is said to have "temporary insanity" must show some idea of mental instability before they actually commit the crime. Other than the "Twinkie Defense" that will be described in this paper, these two defenses are limited to a case by case basis as to whether someone can use them or not. This research gives an understanding of these two defenses as well as cases to show the difference between the two. The Difference Between Duress and Insanity INTRODUCTION In the real world it is "impolite" total about insanity. The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) of the American Psychiatric Association has no classification for "insane" because finding a clear definition is impossible. Instead, the DSM-IV provides different classifications for mental and emotional disorders that are very specific so that practitioners can see what they are dealing with without the insane label. Duress is another label that is not used in polite circles and it does not appear in the DSM-IV. The labels of duress and insanity have been used in separate instances in the criminal justice system. In fact, in researching for this paper there were no other indications of what these two terms might be other than within the courts with both terms having a definition, though there is controversy as to what those labels are to be all the time. Within this framework it is sometimes a case by case basis that defines who can use this defense and under what circumstances these terms can be used. DEFINITIONS OF DURESS Because duress is so complicated there are several definitions of it. According to the "Criminal Defense Lawyers" website, a person who is forced to commit a crime "under the threat of death or serious injury" is considered to be under duress (Criminal Defense Lawyers, 2009, par. 3). The Lectric Library (2009) defines it as: Restraint or danger, actually inflicted or impending, which is sufficient in severity or apprehension to deprive a person of free choice, destroy his volition, or obtain consent only in form. Absolute Astronomy (2009) states that there are four criteria that must be met in order for someone to claim duress as their defense: 1. Threat must be of serious bodily harm or death. 2. Harm threatened must be greater than the harm caused by the crime. 3. Threat must be immediate and inescapable. 4. The defendant must have become involved in the situation through no fault of his or her own. In other words an individual must prove that they thought they were under serious threat of bodily injury or death and they were coerced to commit the crime because of the situation. The defense of duress is easier to prove according to Gorr (2000) because there are more tangible circumstances. One individual has to prove that someone threatened to kill or do them bodily harm if they did not do the crime. They must also show that they were "not at fault in exposing themselves to the situation" (Gorr, 2000, p. 4). DEFINITION OF INSANITY Definitions of insanity can be both clinical and legal. Boyd and Nihart (1998) explained the history of the insanity plea and how the clinical definition merged with a law definition. This was a case that goes back to 1843 when Daniel MNaghten was found not guilty by reason of insanity after he killed a public official. It was found that MNaghten was acting in "self defense" becasue he had paranoid dilusions that he was being hunted by the Tories and thought he had killed the Prime Minister who he believed was the head of the Tories; instead he killed the Prime Ministers Aide. MNaghten was considered "criminally insane" at the time and the magistrate decided that a person would be termed "criminally insane" if "the accused with a mental disorder does not know the nature and quality of the act or whether it is right or wrong (Boyd and Nihart, pgs. 77-78). From this definition the courts over the years have had to make a definition for people who fit this category when they choose this defense. This has created several different ways that an individual can plead insanity and society does not like this plea. Most people believe that if a person commits a crime they should pay the price. With the insanity plea, the individual usually gets a lighter sentence and in some cases they are acquitted of the charge of murder in favor of the lesser charge. Usually they are admitted to a mental health system to be observed and if they "recover" they are often able to rejoin society. The basic difference between duress and insanity then, according to the law, is that in duress the individual is coerced into the crime by someone else. The individual committing the crime can be perfectly sane but they feel that if they do not do the crime they will be killed or tortured or both. With the insanity plea, the individual has some sort of mental instability before the crime and it escalates until the crime is committed. CASES OF DURESS Duress is a difficult issue to prove in court because there are so many variables. In the research it was very difficult to find specific cases that gave a full explanation of what happened. One famous court case that made duress difficult to use as a defense was one called the Prosecutor v. Drazen Erdemovic. In this case the basic issue was that an International Criminal Tribunal refused to let Erdemovic, a soldier, plead duress after he killed 70 Muslim men and children in 1995. This crime was against humanity which made it more difficult for the jurors and the judge to decide. Two questions that were important and had to be answered were: 1. Is duress a legitimate defense or is it an excuse? 2. Can an individual use duress as a defense for murder, especially with the common-law rule that says duress cant be used as a defense in murder? (Chiesa, 2007, 0. 1). What was found was that the soldier was under the command of his officers to do what they said and he feared for his life because if he did not kill these people the other soldiers would. Since the people would have been killed anyway, some people felt that he was using duress as an excuse. According to Gomez (2009): "Duress is probably the most controversial defense in criminal law theory" (p. 1). He says the reason for this is because people in criminal justice cannot agree on a definition for it. The reason they cannot agree stems with the idea that duress is an excuse rather than a true defense. This creates a debatable situation that must be considered on a case by case basis. The US Court of Appeals for The Armed Forces has had several cases that they have ruled upon where it was found that the individual was under duress when they committed a crime: 2006-- United States v. Thompson -- in this situation it was ruled that an individual was under duress if he was ordered to commit an act if he or an innocent party could be killed or have serious bodily harm done if they did not commit the act. 2002 - United States v. Washington -- in this case it was shown that duress could be used as a defense if someone is "compelled" or "coerced" to commit a crime "by some human agency" if there is a threat to the individual or a group of people. The duress can only apply if the crime that happened is less than the harm that was threatened. Although these did not explain the case that was presented it gave the ruling so it is know that the duress defense can be used. When writing this paper a question came to mind about the soldiers who were involved in the Abu Ghraib Prison "scandal" during the current Iraq War. It is not known whether any of the soldiers pleaded using this defense but it seems that it might have been used. Duress does not seem to be an easy situation to prove because one must be able to accurately show that someone else was the culprit in the process. As an example, the Sixth Form Law (2008) website lists many cases in which duress was used where the parties won or lost. One example is in a traffic situation. The case of Backshall, R v. (1998) CA showed that a man D. was driving erratically and had applied his brakes many times during the driving. Another driver caught up with him, attacked the windows of his car with a hammer. D. was driving this way because of this situation. He was found "not guilty in the situation of driving erratically because he had to do it "of necessity" because of the situation. In this situation D. was able to prove that this had happened by the condition of his car. Duress can be a defense only when certain criteria is met and it still depends on the individual situation. THE INSANITY DEFENSE Insanity is difficult to show unless someone has had a case of mental instability before they have committed the crime. In one of the most important and famous cases the ruling of insanity brought about changes in the mental health system. The case of Tarasoff v. Poddar happened in 1974 and 1976. To summarize the case, a young man from India, Prosenjit Podder met a young woman at the University of California at Berkeley where they both were attending school. The woman was Tatiana Tarasoff and although they were only friends, Tarasoff kissed Poddar one day in a friendly kiss. He took this as a sign that she was returning affection for him and he confessed the fact that he loved her. She told him that she was not interested in that way with him and that she was seeing other men. These two never courted as far as Tarasoff was concerned, but Poddar took the situation as rejection. Prior to this situation Poddar was going to counseling and he told the counselor that he was going to kill Tarasoff. The counselor and several people within the facility tried to get Poddar committed but the police would not do it; Poddar terminated his counseling and killed Tarasoff. When he went to trial for the crime the first jury said that he was not insane and therefore should serve his time. Under a technicality he was later released. Out of this case came the "duty to warn" legislation that most states have now for counselors. The parents sued Poddar in a civil suit and it was found that the counselor or someone in the mental health facility had the duty to warn Tarasoff that this man was going to kill her. Though Poddar was ordered out of the United States after Tarasoffs death, the parents found some vindication in getting the legislation passed in their state (McCann, 2006, pps. 57-67). One other example that was famous was referred to as "The Twinkie Defense." (McCann, 2006). This defense was a plea of "mental impairment" instead of true insanity but it is worth mentioning. Dan White, the man who killed gay activist Harvey Milk and the Mayor of San Francisco at the time, George Moscone in 1978 was found to be "not guilty" of murder because he was acting under a temporary mental impairment. This case was tried in the media as "The Twinkie Defense" because one of the psychiatrists, Dr. Martin Blinder, said that White was under duress (although they did not call it duress). Blinder said that White suffered from manic depression from childhood (McCann, p. 75). Many people suffering with this illness will continue to eat junk food to try and feel better. Blinder said: Whites consumption of junk food was not only a symptom but also an exacerbating factor in his depressed moods...to much sugar can affect the chemical balance in the brain and worsen depression..." (McCann, p. 76). He further stated studies as examples where too much refined sugars made a persons mood change or commit violence. Although most people thought this defense ridiculous ("Twinkie" referring to the cake treat by "Hostess"), and his defense attorney ignored it, he was able to get a lesser conviction because of it. The jury found him "not guilty" of murder because they said he had not acted in "malice or premeditation and deliberation" (McCann, p. 78) which is what they had to prove in California. Instead, he was convicted of two counts of manslaughter. It is obvious to this researcher in reading this case that it is curious that the "duress" defense was not used in this case. White had been experiencing a lot of stress because of the job, his financial situation and his home life. He had resigned from his job but changed his mind when several people stated to him privately that they would help him get reappointed. He believed this and then he was told he would not get the job. Although he was not under duress according to the law, he was under duress emotionally and he finally had to confront both parties and out of his frustration he killed both men. This of course could be debated and both sides would be correct. Insanity is difficult when you look at some cases because the people may or may not have been mentally unstable or "impaired" prior to committing the crime. Insanity must also be proven through the use of many outside psychiatric and psychological "experts" from the field. Often an individual must go through several psychiatric examinations with these mental health practitioners in order to assess whether this person is sane, was sane at the time that they were committing the crime or whether they returned to "normal" afterward. One of the most stunning and frightening cases was that of Jeffrey Dahmer. In the book, Minds On Trial, Ewing McCann calls Dahmer a "serial murder, necrophilia, cannibalism" (McCann, p. 141). Most people will remember Dahmer as the serial killer who stalked young men, tortured and killed them and then ate their remains. Dahmer had a history of abuse with young boys and it followed him from one place to another once the police began to check him out. It was also found by the psychologists that examined him that he was not someone who would gain from treatment because he was "a manipulative, alcohol abuser who lacked insight and motivation for treatment" (McCann, p. 142). One psychiatrist suggested that he had a schizoid personality which to this researcher seems plausible because of all the things that were written about him. In fact, this case has had several movies about Dahmer trying to explain his actions. What was interesting is that Dahmer had a history of getting in and out of jail for sexual assault but he was always able to get out of the situation. Part of it was problems with the criminal justice system (they did not always have his previous records) and part of it was his ability to manipulate the police. The psychiatrists at his final trial stated that he had a "severe personality disorder" and that his "killings were part of an effort to maintain a relationship with his victims...he was afraid they might abandon him." (McCann, p. 151). The jury was not able to accurately decide whether Dahmer was "legally insane." In fact, many of the experts said he was not. The jury could not come to a unanimous vote; ten people believed he was sane when he did the killings, two people thought he should get the "not guilty by reason of insanity" plea. The irony was that Dahmer was killed in prison after two years by an "insane" inmate who said that "god" told him to do it (McCann, p. 152). CONCLUSION The difference between duress and insanity seem to be concrete if we do not look at them clinically. Criminal justice melds the idea with psychology to try and give fairness to an individual who is on trial. The challenge comes in because there is no real concrete example for duress and it has to be studied on a case by case basis. With insanity, it is clear that the individual had to have some prior order of mental illness before they committed the crime. Today, it seems that they cannot come into this plea unless the can successfully show a history of mental problems. The idea of duress and insanity is difficult at any cost when an indivdiuals life sits in the balance. Depending on what they did and how they did it, a jury has to do whatever they think is fair. They are lead into the chambers to deliberate after hearing a body of evidence. The challenge for them is always that it may or may not be easy to determine whether a person acted in an "insane manner" because we cannot define accurately the term. References Absolute Astronomy. (2009). Duress: Facts, discussion, requirements. Retrieved April 3, from http://www.absoluteastronomy.com/topics/duress. Boyd, M. A. & Nihart, M.A. (1998). Psychiatric nursing: Contemporary practice. Pennsylvania: Lippincott. Chiesa, L.E. (2007). Duress, demanding heroism and proportionality: The Erdemovic case and beyond. [Abstract]. New Criminal Law Review. 11(4), pgs. 615–644 , doi 10.1525/nclr.2008.11.4.615 Criminal Defense Lawyers (2009). Present your case to a lawyer. Retrieved April 2, 2009 from http://www.legalmatch.com/law-library/article/criminal-defenses.html. Gomez, G.V. (n.d.). Duress and the antcolonys ethic: Reflections on the foundations of the defense and its limits http://caliber.ucpress.net/doi/abs/10.1525/ nclr.2008.11.4.615. Gorr, M. (2000). Duress and culpability. Criminal Justice Ethics, 19(2), 3-16. Retrieved April 3, 2009, from ProQuest database. (Document ID: 67539022). McCann, E. (2006). Minds on Trial. NY: Oxford University Press. Sixth Form Law. (2008). Cases - defences - duress of circumstances. Retrieved April 4, 2009 from http://sixthformlaw.info/02_cases/mod3a/cases_62_gen_ def_duress_of_circs.htm#Backshall,%20R%20v%20(1998)%20CA. The Lectric Law Library. (2009). Lexicon on duress. Retrieved April 2, 2000 from http://www.lectlaw.com/def/d082.htm. US Court of Appeals for The Armed Forces. (n.d.). Core criminal law subjects: Defenses: Duress. Retrieved April 3, 2009 from http://www.armfor.uscourts.gov/ digest/IIIB5.htm. Read More