Integration of Mens Rea with the Insanity Defense in Kahler v. Kansas, A Confounding of Medical and Legal Views in Criminal Responsibility
1
조회
0
다운로드
0
인용
0
참고문헌
키워드
초록
In its March, 2020 opinion in Kahler v. Kansas, the United States Supreme Court established that the special verdict of not guilty by reason of insanity is not fundamental to the rights and protections aforded by the Fourtenth Amendment’s Due Proces Clause. In Kahler, the Court upheld a chalenged Kansas law that funnels al exculpatory evidence of a defendant’s mental incapacity to the guilt phase of trial to negate mens rea, not as broadly conceived to ases culpability, but rather narowly defined to negate any mental state or states required by the definition of the crime charged. In practice, the Kansas law relies on M’Naghten’s first prong, and only if the defendant understod “the nature and quality” of his actions, could he have formed the requisite mental intent for the charged crime. Kansas law also provides that the above mens rea test is the only avenue to an acquital for a Kansas defendant based on evidence of mental incapacity, thereby eliminating the afirmative defense of insanity. Acordingly, if in Kansas a mentaly defective defendant was able to form the mens rea, intent element of the crime charged, and yet failed to understand that his conduct was wrong, as under the second prong of M’Naghten, the Kansas law wil not exonerate him. The Court’s conclusion requires an answer to one of the long-standing questions that arise from the interaction of mens rea and insanity, can and should mens rea alone serve as a suficient basis for criminal responsibility? This paper introduces the Kahler opinion to a Korean audience and sugests that Korean scholars and lawmakers avoid its pitfals, and not weaken but maintain the broad protections that the Korean law afords to defendants who are chalenged by mental disorders, particularly because mens rea and legal insanity have diferent functions, and confounding them wil fail to properly ases the culpability of mentaly il defendants and increase the danger of fuly exonerating dangerous persons by diluting the empirical nature of mens rea.
Abstract
In its March, 2020 opinion in Kahler v. Kansas, the United States Supreme Court established that the special verdict of not guilty by reason of insanity is not fundamental to the rights and protections aforded by the Fourtenth Amendment’s Due Proces Clause. In Kahler, the Court upheld a chalenged Kansas law that funnels al exculpatory evidence of a defendant’s mental incapacity to the guilt phase of trial to negate mens rea, not as broadly conceived to ases culpability, but rather narowly defined to negate any mental state or states required by the definition of the crime charged. In practice, the Kansas law relies on M’Naghten’s first prong, and only if the defendant understod “the nature and quality” of his actions, could he have formed the requisite mental intent for the charged crime. Kansas law also provides that the above mens rea test is the only avenue to an acquital for a Kansas defendant based on evidence of mental incapacity, thereby eliminating the afirmative defense of insanity. Acordingly, if in Kansas a mentaly defective defendant was able to form the mens rea, intent element of the crime charged, and yet failed to understand that his conduct was wrong, as under the second prong of M’Naghten, the Kansas law wil not exonerate him. The Court’s conclusion requires an answer to one of the long-standing questions that arise from the interaction of mens rea and insanity, can and should mens rea alone serve as a suficient basis for criminal responsibility? This paper introduces the Kahler opinion to a Korean audience and sugests that Korean scholars and lawmakers avoid its pitfals, and not weaken but maintain the broad protections that the Korean law afords to defendants who are chalenged by mental disorders, particularly because mens rea and legal insanity have diferent functions, and confounding them wil fail to properly ases the culpability of mentaly il defendants and increase the danger of fuly exonerating dangerous persons by diluting the empirical nature of mens rea.
참고문헌 (32)
- Donald H. J. Hermann, "Convicting or Confining--Alternative Directions in Insanity Law Reform: Guilty but Mentally Ill Versus New Rules for Release of Insanity Acquittees", BYU L. REV., 1983, pp.499~638 (1983)
- Jonathan B. Sallet, "After Hinckley : The Insanity Defense Reexamined", Yale L. J, 94, pp.1545~1588 (1985)
- Paul Kichyun Ryu, "New Korean Criminal Code of October 3, 1953--An Analysis of Ideologies Embedded in it", J. Crim. L. Criminology & Police Sci, 48, pp.275~295 (1957)
- Stephen J. Morse, "The Uneasy Entente between Legal Insanity and Mens Rea: Beyond Clark v. Arizona", J. Crim. L. & Criminology, 97, pp.1071~1150 (2007)
- John Biggs, Jr., "Guilty Mind: Psychiatry and the Law of Homicide" (1955), John Hopkins Press
- Richard Moran, "The Origin of Insanity as a Special Verdict : The Trial for Treason of James Hadfield(1800)", L. & Soc'y Rev, 19, pp.487~520 (1985)
- Henry de Bracton, "On the Laws and Customs of England, 4 vols" (1968), Harvard University Press
- Sir James Fitzjames Stephen, "A History of the Criminal Law of England, 3 Vol" (1882), Macmilan and Co
- "The Trial of Edward Arnold (1723), in Thomas Bayly Howell", State Trials (English Reports), 16, pp.695~766 (1816)
- Issac Ray, M. D., "A Treatise on the Medical Jurisprudence of Insanity" (1839), G. Henderson
- Daniel N. Robinson, "Wild Beasts and Idle Humours, the Insanity Defense from Antiquity to Present" (1996), Harvard University Press
- Wharton Francis, "Wharton and Stille’s Medical Jurisprudence" (1905), Lawyer's Co-operative Pub. Co
- William Cobbette, "A Complete Collection of State Trials and Proceedings for High Treason and other Crimes and Misdemeanors from the Earliest Period to the Year 1783" (1809), R. Bagshaw
- "The Trial of James Hadfield, in Thomas Bayly Howell", State Trials (English Reports), 27, pp.1281~1356 (1820)
- Jan E. Goldstein, "Console and Classify : The French Psychiatric Profession in the Nineteenth Century" (2002), University of Chicago Press
- William Pannill, "Thomas Erskine : Lawyer for the Ages", Litigation, 27(2), pp.53~59 (2001)
- Thomas O'Reilly-Fleming, "From Beasts to Bedlam: Hadfield, the Regency Crisis, M'Naghten and the Mad Business in Britain, 1788-1843", J. Psychiatry & L, 20(2), pp.168~190 (1992)
- Donald J. West, "The Queen Against Daniel M’Naughton, 4 State Trials 847 (1843), reprinted in Daniel Mc’Naughton: His Trial and Aftermath" (1977), Headley Brothers Ltd
- Rudolph J. Gerber, "The Insanity Defense Revisited", Ariz. St. L.J., pp.83~128 (1984)
- Richard Moran, "House of Lords Debate"In Knowing Right from Wrong : The Insanity Defense of Daniel McNaughtan" (1981), Free Press
- Federica Coppola, "Motus Animi in Mente Insana: An Emotion-Oriented Paradigm of Legal Insanity Informed by the Neuroscience of Moral Judgments and Decision-Making", J. Crim. L. & Criminology, 109(1), pp.1~70 (2019)
- Markus Dirk Dubber, "Theories of Crime and Punishment in German Criminal Law", Am. J. Comp. L, 53, pp.679~708 (2005)
- Michael Bohlander, "Principles of German Criminal Law" (2009)
- Buy Ben-David, "Cognitive Void in Relation to Attendant Circumstances as Subjective Mens Rea", New Crim. L. Rev, 18(3), pp.418~476 (2015)
- Sarah Finnin, "Mental Elements Under Article 30 of the Rome Statute of International Criminal Court : A Comparative Analysis", Int’l Comp. L. Q., 61, pp.325~359 (2012)
- 신동일, "심신장애 판정의 문제점과 개선방안", Analyzing Insanity, KIC Research Reports, 1 (2015), KIC Korean Institute of Criminology
- 유진, "법정에 선 정신장애 : 형사책임능력에 대한 의료지식과 법적 결정", 형사정책연구, 29(3), pp.231~270 (2018), 한국형사법무정책연구원
- 정재준, "심신상실 판단 기준의 명확화를 위한 시도 - 한·미 비교를 통한 맥나튼 룰 도입 가능성 제고-", 비교형사법연구, 13(2), pp.461~490 (2011), 한국비교형사법학회[DOI]
- 조철옥, "강력범죄자의 정신이상 항변에 관한 연구", 치안정책연구, 25(1), pp.115~155 (2011), 치안정책연구소[DOI]
- 최이문, "정신장애 범죄자에 대한 법원의 책임능력 판단에 대한 연구(2014-2016)", 한국심리학회지:법, 9(1), pp.41~56 (2018), 한국법심리학회
- Alan Reed, "Potentiate Liability and Preventing Fault Attribution : The Intoxicated Offender and Anglo-American Depecage Standardisations", J. Marshall L. Rev., 47(1), pp.57~114 (2013)
- "The Trial of Earl Ferrers, in Thomas Bayly Howell", State Trials (English Reports), 19, pp.885~980 (1816)