Proving Loss of Control

Proving Loss of Control

The control question reaches the jury as a question of fact. Psychiatric witnesses describe the defendant's illness and behavior, and the jury then decides for itself whether the illness left the defendant unable to control his actions or conform his conduct to the law.¹ Durham v. United States describes the experts' principal function as informing the jury of the character of the accused's mental disease or defect, while leaving the jury free to ask whether the accused acted under an irresistible impulse.² In Fisher v. United States, defense psychiatrists offered evidence that the defendant could not resist the impulse to kill, the prosecution had competent evidence that he understood the nature and quality of his acts, and the trial court submitted insanity and irresistible impulse to the jury under instructions in the usual form.³ Because the jury's latitude is wide, trial and appellate judges must make sure it decides on behavioral data that bear on blameworthiness, which makes the quality of the proof the real subject of this section.⁴

The central illustration is Washington v. United States, in which the court reviewed a trial where psychiatrists clashed over the defendant's capacity for control.⁵ That decision carries a caution about its reach. The court sat in the District of Columbia, where the governing standard asked whether the act was the product of mental disease, and McDonald v. United States treated the ability to refrain from the unlawful act as one factor a jury may weigh in answering that question and not as an independent test.⁶ Washington therefore shows how courts and juries handle the control question and does not state the traditional control test. The discussion below takes up how much proof courts have demanded before crediting a claim of lost control, why the underlying facts matter more than diagnostic labels, and how a factfinder separates a defendant who could not stop from one who would not.

Clear Proof of the Condition

Courts have treated control claims with suspicion from the start, and the suspicion shows up as a demand for strong proof. In Commonwealth v. Mosler, Chief Justice Gibson of Pennsylvania accepted that a diseased mind may be pulled toward consequences it sees but cannot avoid, and in the same opinion called the doctrine dangerous and recognizable only in the clearest cases.⁷ He wanted the condition shown to be habitual, or at least to have appeared in more than one instance, and he required either clear proof that it existed at the time of the act, evidenced by the circumstances then present, or proof of a habitual tendency developed in earlier episodes.⁸ The demand responds to a real difficulty of proof. A defendant who admits knowing the act was wrong has nothing in his understanding that separates a disabling compulsion from a strong desire left unchecked, and psychiatrists and juries find it hard to tell an impulse that could not be resisted from one that was not resisted.⁹ A documented history adds something that an after-the-fact claim lacks, because records of illness and of earlier struggles predate the crime and so could not have been shaped by the defendant's wish to avoid conviction.

The proof must also connect the lost control to a mental illness, and to the act actually charged. In United States v. Alexander, a defendant shot and killed a Marine after a racial insult, and a defense expert testified that an irresistible impulse, produced by a deprived and racially hostile upbringing, had impaired the defendant's behavior controls; the trial judge told the jury to disregard the testimony about the social background and to consider only the insanity plea, and the court of appeals affirmed over Judge Bazelon's dissent.¹⁰ A related limit appears in the Second Circuit's decision in United States v. Torniero, as described in a dissent in United States v. Lyons. A defendant who relies on a newly recognized disorder must show that respected authorities regard it as a disease or defect that could have impaired the ability to desist from the offense charged, and the disorder must be relevant to that offense, so a gambling compulsion did not support a claim of inability to refrain from transporting stolen jewelry.¹¹

Who carries the proof varies by jurisdiction. Patterson v. New York declined to reconsider Leland v. Oregon, which had upheld an Oregon rule requiring the accused to prove insanity beyond a reasonable doubt, and so left States free to make insanity an affirmative defense that the defendant must establish.¹² In Rivera v. Delaware, a statute that excused a defendant who lacked sufficient willpower to choose whether to act required the defendant to prove the defense by a preponderance of the evidence, and the Supreme Court disposed of the challenge summarily over Justice Brennan's dissent.¹³ Other States allocate differently; in Oklahoma, once the defendant raises a reasonable doubt about sanity, the State must prove sanity beyond a reasonable doubt.¹⁴ A defendant who succeeds should also know what follows, because acquittal by reason of insanity under the District of Columbia statute in Jones v. United States led to commitment to a mental hospital and not to release.¹⁵

Facts Versus Labels

Washington shows what happens when the evidence on control arrives as labels. Three psychiatrists testified. The defense expert, Dr. Adland, based an opinion on a single interview of about an hour and a quarter, administered no neurological or physical tests, and was refused access to the hospital's test reports, while the two Government psychiatrists, Dr. Owens and Dr. Hamman, had watched Washington for two months at Saint Elizabeths Hospital and had the benefit of its testing, even though each had interviewed him for about the same time.¹⁷ The testimony then turned to vocabulary. Dr. Hamman defined an irresistible impulse as a conflict in which unwanted behavior breaks through, and found no such conflict in Washington. Asked whether Washington nonetheless could not stop, that witness answered that Washington would simply act, had no desire to stop, and had no power to stop, yet denied that this was an irresistible impulse as the term is understood.¹⁸ Elsewhere the same witness agreed that Washington lacked brakes against antisocial acts and had little control, while maintaining that Washington was not mentally ill.¹⁹

Most of the remaining examination went to classification. Witnesses and counsel argued over whether Washington had a personality disorder, a personality problem, sociopathic symptoms, a character disorder, a neurosis, or simply a type of personality, and redirect and recross examination kept returning to those labels.²⁰ The labels did more than fail to inform. They pulled the jury's attention away from the few facts actually in evidence, such as a twelve or thirteen year history of aggressive behavior and difficulty relating to other people.²¹ The judges who wrote the principal opinion were deeply troubled by the scarcity of meaningful information and by the constant use of labels, and they noted that these defects recur. They affirmed anyway, because the defense psychiatrist and, on cross-examination, the Government psychiatrists had given enough concrete description of Washington's mental and emotional processes that the verdict should stand.²²

The reason facts matter more than labels follows from what the jury must decide. A label such as sociopath or personality disorder is a conclusion about a person's condition and says little about whether that person could stop. Facts about the history of the illness, any conflict and effort to resist, and the circumstances of the act describe capacity directly, and a jury can weigh them without deferring to a vocabulary it cannot evaluate. Ake v. Oklahoma describes psychiatrists as gathering facts through examination and interviews, drawing conclusions about the effects of any disorder on behavior, and explaining why their observations matter, and it adds that because psychiatrists disagree widely about diagnosis, juries remain the primary factfinders and resolve those disagreements on the evidence each side offers.²³ Ake arose under an Oklahoma statute that asked whether the defendant was incapable of knowing the act's wrongfulness, so it speaks to the expert's role and says nothing about the content of a control test.²⁴ Once the defense puts mental condition in issue, the prosecution may answer with psychiatric evidence of its own, including a report from an examination the defense requested, as Buchanan v. Kentucky allowed in a case involving extreme emotional disturbance.²⁵

That twin sits at the opposite pole from Washington itself, where the Government's psychiatrists described urges acted on without conflict or desire to stop, attributed them to a personality problem and not an illness, and left the jury free to treat the lack of restraint as character and not disability.²⁶ Students lose this issue when they treat a diagnostic label as proof of lost control. A diagnosis names an illness, while the control question asks what the illness did to this defendant's capacity to stop.

Cannot Versus Will Not

The hardest factual line in a control case separates a defendant who could not stop from one who would not, and the Government's psychiatrists in Washington show how that line gets drawn against the defense. Dr. Owens described the defendant's urge as a wish for sexual relations that Washington pursued by force when refused, and not as an impulse to rape, and testified that the difficulty in controlling that urge did not impair his voluntary controls. As support, the psychiatrist reasoned that Washington would have backed off and looked for another victim had police, witnesses, or thirty other men been present.²⁹ The reasoning rests on an inference from restraint: behavior that responds to a rise in the cost of acting looks like behavior that could have been controlled. Pushed to its limit, the inference runs through a thought experiment in which a gunman threatens to kill an addict, or a person with a compulsion, for yielding; because no such person would yield, the desire, however strong, is something the person can govern.³⁰

The inference has limits, and the cases show them. In People v. Gorshen, a defendant's psychiatrist testified that even with police officers at the defendant's elbow, the obsessive train of thought that ended in a killing could not be stopped, and described the defendant's threat and trip home for a gun as symptoms of the illness and not signs of free choice.³¹ California admitted that testimony only on malice and other specific mental states, as a partial defense, because it rejects irresistible impulse as a test of legal insanity.³² The American Law Institute's capacity formulation, as applied in United States v. Brawner, measures capacity at the time of the conduct in the unstructured conditions of ordinary life, so a defendant who would obey an attendant or police officer at the elbow may still lack the capacity to conform alone, and total incapacity is not required because clinical experience shows only a graded scale.³³ Brawner applies a different test from the traditional one, and the graded-scale point returns later in this chapter in the discussion of total incapacity.

A defendant's own account can carry both halves of the problem at once. Andrew Goldstein, who had pushed a young woman onto subway tracks, told police on videotape that he knew the push could kill her and that it was wrong, and he also described an overwhelming urge, a sense of being inhabited, that came before the push.³⁴ Under a knowledge-only test, the admission of knowledge defeats the defense and the urge is irrelevant.³⁵ Under a control test, the description of the urge is a fact for the jury to weigh, and whether it shows inability or only an urge left unresisted is the jury's call.³⁶

Steps two and four do the real work. A stem that supplies only a diagnosis and a conclusion invites the answer that the facts are too thin to show lost control, while a stem that recounts history, struggle, and failed effort gives the jury what it needs to find that the defendant could not stop.