San Diego Law Review

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It is the thesis of this Article that the insanity defense with its use of psychiatric testimony is often prejudicial to the criminal defendant. The issue of the defendant’s sanity puts antagonistic propositions into motion which require proof by evidence. If the defendant’s purported insanity were not put in issue by the defense counsel then the prosecutor’s negative assertions that the defendant was sane would not be permissible. Numerous elements are automatically assumed as mitigating factors in many trials (e.g., passionate response to produced anger and desperation and despair), and operate subliminally to influence the judge and the jury. The jurymen are more likely to identify with the defendant in these factors than they are on an insanity plea. And, in the latter, they are bound by the judge’s instructions which perforce must focus on the narrow point of knowledge of right and wrong. When the total fact pattern is subordinated to a subfact–sane or insane–which is arbitrarily held out to be the critical point, as it is under M’Naghten, an entirely different result must inevitably ensue.

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