Why Insanity is a Lousy Defense to a Criminal Charge

It should come as no surprise to anyone that the criminal defense attorney for the alleged Ft. Hood killer has reportedly announced that his client may offer an insanity defense to the murder charges against him. After all, he has limited options, doesn't he?

But without judging that particular case, please let me explain why, in most cases, in my opinion, insanity is a lousy defense to offer to a criminal charge. First of all, by offering this affirmative defense, a defendant is essentially required to admit that he has committed the acts in question--in this case, murder. And that's certainly not going to make jurors want to let you go, is it?

But the real problem with insanity as a defense also lies in what the defense must show at trial in order to prevail. First of all, you must understand that there is a big difference between medical insanity and legal insanity. In other words, many of us may have (medically) insane relatives, out there walking around, who fail to meet the legal test of insanity! For example, the State of Georgia subscribes, in large part, to the old M'Naughten Rule of insanity. This is also known as the "right-wrong" test of insanity. In short, in Georgia, (reducing this test to its simplest terms), a defendant must carry a heavy burden of convincing a jury that he was so crazy, when he committed the crime, that he couldn't even tell the difference between right and wrong. This is a very heavy burden! As a result, it is almost impossible for most defendants to ever win with this trial defense, because even the sickest individuals generally know the difference between right and wrong!

Finally, as one old judge once observed about a bank robber, "If he was really insane, then why didn't he use a banana instead of a gun to rob the bank?"

What is the Best, Winning Defense Against a Criminal Charge?

As a former career prosecutor for over 26 years, including over 20 years as a white collar crime federal prosecutor, (along with about 5 years as a criminal defense attorney), I have tried literally hundreds and hundreds of criminal cases. And I have seen criminal defense attorneys raise countless defenses, such as alibi, insanity, "the Devil made me do it," immunity, mistake of fact, and just about everything else imaginable. But can you guess the best, most winning defense that I have ever seen offered or utilized against criminal charges?

The answer, in my opinion, is fairly simple: If the government has (falsely) accused you of a crime, then you, (after careful consultation with your defense attorney), should consider raising a defense of admitting the act, (especially if they have overwhelming proof), but deny the intent. That is the best defense that I have seen succeed more often than any other defense! In other words, nearly every crime has two elements: an act and an intent. And generally, the law requires the government to prove both: i.e. not only that you have committed the criminal act, but also that you had the requisite mens rea, or intent, to commit the act. The first element, (i.e. the act), is often easier to prove. But the latter element, (i.e. the intent element), can often be difficult, if not impossible, to prove. For example, in a false billing, Medicare fraud case, the government may sometimes have overwhelming proof, and can easily prove, that you, or your employees, submitted the alleged improper billings. But it may be difficult for the government to prove that you intentionally over billed the government program. In other words, in some cases, maybe unintentional mistakes were made in only a few of the billings, out of numerous legitimate billings that were submitted for reimbursement. Or perhaps you reasonably relied on expert advice that the billings were legitimate and therefore didn't intend to defraud the government. Again, if the government cannot prove the element of intent beyond a reasonable doubt, then the prosecution should fail and you should be acquitted.

Naturally, each criminal case must be carefully analyzed by you and your experienced criminal defense attorney as to its own unique set of facts. But generally speaking, in my opinion, the winning defense in many cases may often be to admit the act, but deny the intent! At least this defense beats blaming the Devil for the crime!