Historical Foundations of Forensic Psychology in Ancient Greece, Rome

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  • Published On: 08-12-2023

Forensic psychology could be traced back to the ancient Greece, Rome and Hebraic law. Ancient Greeks identified two forms of mental illness, which were melancholia and mania. The ancient Rome similarly wrote about ‘madness’ as both a legal and medical problem (Weiner, 2003, p. 392). On similar footing, the Hebraic Law also did not hold ‘idiots’ and ‘lunatics’ criminally responsible for their acts as they were unable to differentiate between right and wrong. In England, from the 13th century, the regular justice system was used to determine guilt and it had used the ‘King’s mercy’ for a possible avoidance of executing an insane person (Weiner, 2003, p. 392).

Torry and Billick (2010) observed that the insanity defense of not guilty has been used by mentally disordered defendants, who lack the capacity for understanding what is right and wrong at the time they commit a crime. They observed that this defense has been confusing legal and mental health professionals for years. There is a large section of the society who believe that defendants could evade criminal responsibility using (Torry & Billick, 2010).


Therefore, it is essential to understand the concept of the insanity defense and how legal and medical professionals should while differentiating between illness or pure evil nature of a defendant. In this context, the research topic ‘Insanity defense: evil or illness’ is appropriate to delve into this aspect of insanity defense. There are cases where insanity was allowed and where it was not allowed a defense to a criminal act. The concerned question would uncover the differentiating factors that divide illness from evil. While doing do, this executive summary will also explore the arguments touching upon different kinds of mental illnesses and how they could lead to criminality of a defendant.

Research question. The poster file referred to in relation to this executive summary states that insanity defence, which is also termed the mental disorder defence, will save a defendant from criminal liability for their acts arising from episodic or persistent psychiatric disease at the time they committed the act. The content of the poster provides that insanity or mental illness is no longer informed by health professionals. The term is currently primarily legal. In this context, the question of research will be whether or not i) insanity be treated as evil and the defendant is criminally liable; or ii) treated as illness and the defendant is not criminally liable. While exploring this aspect of insanity as a defense to a criminal act, the research will explore what demarcates between evil and illness. This could be done by exploring both the psychological and legal aspects relevant with the topic.

Research methods. The research subject in question has multiple layers and aspects condidering the psychological and legal aspects of it. Hence, a qualitative research method was employed as the information sought is multi-layered and multi-faceted. This research has collected secondary data through the systematic literature review, which helped identify relevant literatures used for collecting secondary data (Green, et al., 2011, p. 6). The researcher identified and reviewed a series of literature in books, journals and reports. The research involved a desk based library research and research using online search engines such as Google Books and Google Scholar (Green, et al., 2011). The books and articles found provided an insight into insanity defense from an interdisciplinary perspectives of law and psychology. Primary materials were relied upon for case laws and legislations. The books on criminal law supported the findings.

How legal system treats insanity?

The legal system including courts have been dealing with this insanity for ages. For example, a 1581 English legal treatise gave the first recognition of insanity against criminal charges. It stated that “If a madman or a natural fool, or a lunatic in the time of his lunacy” kills someone, they cannot be held accountable. (Torry & Billick, 2010). The English courts also came up with important tests for determining insanity. For example, in the case of R. v. Arnold, the court employed the “wild beast” test that states that a defendant cannot be convicted if they understood the criminal act no better than ‘an infant, a brute, or a wild beast.’ (R. v. Arnold 1724, 16 St.Tr.695, 1724). In that case, Justice Tracy formulated the test by stating that a defendant will not be liable for an offence if he must be ‘a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute or a wild beast, such a one is never the object of punishment.’ (Weiner, 2003, p. 392).

Criminal law is relevant to the research questions. Many case laws have dealt with insanity defence and principles of criminal law. For example, courts have held that mens rea is a distinguish feature between murder and manslaughter (R v West (1848) 2 Cox CC 500, 1848). In the absence of an intent to kill, a defendant is not liable for murder (Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421., 1997). The McNaughten’s rule or test of ‘right and wrong’ lays down that ‘in order to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. And the quality of the act he was doing, or if he did know it, he was not aware that what he was doing was wrong and contrary to law’ (YP, 2016, p. 166; Weiner, 2003). In this case, Daniel McNaughten attempted to assassinate British Prime Minister Robert Reel in 1843 (M’Naghten's Case [1843] All ER Rep 229, 1843). He mistakenly shot the secretary, Edward Drummond mistakenly. He was defended by four barristers who called nine medical experts who testified that he was insane or ‘partially insane’. There was no challenge from the prosecution and his defense held ground. The jury also did not hold him liable (Weiner, 2003, p. 393).

Both of the tests of the ‘wild beast’ and ‘McNaughten’ focus on whether or not a defendant knew about the nature of the crime or whether or not they understood the difference between right and wrong at the time they commit a criminal act. McNaughten’s rule, however, replaced the wild beast test with a more inclusive cognitive test. The latter test was employed by the courts where a defendant was not held liable in case he was deprived of understanding and memory. Goodheart and Rogers (2012) observed that the advent of modern science changed this perspective. The development of psychiatry’s scientific status defined the Wild Beast test as being narrow and not covering the essence of insanity. The court developed the McNaughten’s rule to cover this gap by employing an inclusive cognitive test. Here, a defendant must prove that the defendant was either: i) labouring under a defect of reason, from a disease of his mind that did not make him know the nature and quality of the criminal act; or ii) if the defendant knew, he must prove that he did not know the act was wrong (Goodheart & Rogers, 2012, p. 156). However, the McNaughten’s rule divided the views between psychiatrists and between lawyers The former held the view that the rule failed to reflect the available knowledge about human minds correctly (Goodheart & Rogers, 2012, p. 157). On the other hand, lawyers were divided on the worth of psychiatric testimony. Prosecutors believed that such testimony was useful only when it is to legally determine whether or not a defendant knew their conduct was wrong. Defense attorneys had a wider interpretation of the rule to include the expert testimony (Goodheart & Rogers, 2012, p. 157).

In R v Porter, the court developed the defense of insanity or ‘mental impairment’. According to this rule, a defendant must prove that they were deprived of their reasoning power due to a mental disease and they must prove that such deprivation in reasoning had caused the defendant to lose sight of the nature of their action and the wrongness of their action (R v Porter (1933) 55 CLR 182, 1933). Does the deprivation in reasoning mean that there was no mens rea? In Loake v CPS, it was held that insanity cannot be held to be a denial of mens rea (Loake v CPS [2017] EWHC 2855 (Admin), 2017), as was held in DPP v Harper. As a general defence, the insanity defence could be pleaded with the rationale that ‘the principle that criminal punishment should only be imposed upon those who are responsible for their conduct (Loake v CPS [2017] EWHC 2855 (Admin), 2017, p. 35). The defence relieves a defendant of such responsibility in case they did not know the nature and quality of their act (Monaghan, 2020, p. 348; Loake v CPS [2017] EWHC 2855 (Admin), 2017). Hence, there is no special defence of insanity. If an insane person lacks the mens rea for a crime, like any other citizen, they should be acquitted (Herring, 2020, p. 738).

Literature and case law review seem to incline towards the view that the insanity defence is not informed by health medical professionals, but by legal regime. For example, judges and juries enjoyed discretion in interpreting relevant rules. They gave medical witnesses discretion to give suggestion in regard to the extent the rules could be flexed in order to find a defendant insane (Ward, International Journal of Law and Psychiatry). The Medico-Psychological Association (1896) also accepted this practice and had the view that the rules produce only a little injustice (Ward, International Journal of Law and Psychiatry). Darling J, as reported by Times in 9 December 1920, ‘Trial of Albert Bartlett, ‘No Harley-Street Law’ observed that the law derives its source from the King’s Bench (Ward, International Journal of Law and Psychiatry). It is only the press and public interest in psychoanalysis that presented medical psychology as the new relevant factor in contrast to the common sense of law ((1920) 15 Cr. App. R. 162, 1920). The primary preference given to the law was seen in cases, such as Henry Perry case where the jury preferred the evidence of the prison medical officer who held that the defendant not insane over the other medical officers whose views were held to have had been formed from statements made to them or from personal observations ((1919) 14 Cr. App. R. 48 at 55, 1919; Ward, International Journal of Law and Psychiatry).

The focus on legal requirement of mens rea is argued to be potentially problematic by Morris and Blom-Cooper (2011). Mens rea is an essential element of every offence unless there is a reason that it is not necessary (Morris & Blom-Cooper, 2011). Such a reason could be that of insanity where in a case the central issue would be to determine whether or not the defendant was acting under the influence of a delusion. However, there are sometimes arguments that complicate the defence of sanity where whether or not a defendant is suffering from insane automatism or should they be acquitted due to sane automatism (Morris & Blom-Cooper, 2011). Insanity automatism can be used as a defence where the mental condition of a defendant makes them unaware of their actions leading to criminal actions (Hill v Baxter [1958] 1 QB 277, 1958). There is an interplay between the psychological and legal aspects of the insanity defence. Criminality cannot be subjected to legal determination alone. It could be explained from psychological perspectives as well. Biagi-Chai (2013) cited the example of serial killing cases where there is an interrelation between psychiatry and criminal responsibility. According Biagi-Chai, there is no corresponding area in law that could address the criminal responsibility in the context of psychological disorders as could psychiatry (Biagi-Chai, 2013).

In terms of criminal responsibility of madness, there has been only one alternative, which is either psychiatric hospital or prison. This itself presents the extent of knowledge regarding the psychotic subjects (Biagi-Chai, 2013). However, the relevance of psychiatry in criminal justice system has been increasing. Psychology is a developing field, which is learning new kinds of mental illnesses, which can define criminality. This is particularly relevant to crimes, including serial killing, which may be relevant with psychological illnesses (LaBrode, 2007). The relevance of psychiatry in criminal justice could be seen where courts have started considering the symptoms, impotence, failures and madness. The legislative regime also allows such consideration where it allows the judicial system to call upon psychologists and psychiatric experts in order to shed their expertise for the judges and jurors regarding the question of responsibility. It is now a standard practice to have psychiatric evaluation of defendants (Biagi-Chai, 2013).

Despite the relevance of psychiatric evaluation in a criminal case, it is law that measures criminal responsibilities. Hence, the element of mens rea plays a crucial role. The criminal responsibility consecrates the solidarity between a defendant and their acts. As such, it makes them criminal responsible as they are the only persons liable for their criminal acts (Biagi-Chai, 2013, p. 171). Courts developed other tests, in addition to the ones mentioned earlier, in regard to insanity defense, which will show that the psychiatric perspective of insanity defence amy not be needed. The case of R vs Madfield laid down the test of good and evil to determine whether or not a defendant has the ‘the ability to distinguish between good and evil’ (R v Madfield (1800) 27 St. Tr. 128, 1800). The Irresistible Impulse test requires that a defendant will not be criminally responsible if they cannot control their actions despite knowing that their actions were wrong at the time of they committed the act of crime. Penney (2012), after reviewing relevant neuroscientific literature, found that a defendant could understand the wrongfulness of their act, but may be powerless to refrain from committing such acts. Penney also found that the law of criminal responsibility can practically accommodate defense of irresistible impulse if a defendant had a total incapacity to control their conduct in the circumstances (Penney, 2012). The Durham rule, which replaced the M’Naghten Rule, was laid down by Judge David L Bazelon of the Court of Appeal in the case of Durham v United States. This rule requires a jury to determine that a defendant is guilty by reason of his insanity as his criminal act was the product of a mental disease. There must be a causal link between the disease and the act (Durham v United States, 214 F. 2d. 862 (1954), 1954).

Considering the new development in psychology and psychiatry, the existing legal system may not be able to address new developments. The tests developed by the legal system may be limited in approach as to be not able to cover the psychiatric evaluation of a case. This was seen in the 2006 Law Commission’s report on ‘Murder, Manslaughter and Infanticide’ that gave recommendations to expand the scope of the diminished responsibility plea (Law Commission, 2006). It recommended to allow ‘recognised medical conditions’ to form the basis for a defense plea as was reflected in its view that “nature and scope of such conditions will evolve with changing diagnostic practice, and this may enlarge somewhat the range of mentally disordered Ds who might make a successful plea” (Law Commission, 2006, p. 109).

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Insanity defence has always been a legal and medical problem. Even though, it is the legal system that determines whether the insanity defence please will hold or not, the determination adopted by the courts as could be seen in the various tests discussed in this executive summary, focuses on the mental aspect of the criminal act, including the defendant’s understanding, memory and judgment.

This research has found that psychiatry is relevant in criminal justice, where the legal system allows consideration of psychological and psychiatric perspective on an act to address the question of responsibility. Irrespective of the arguments that the legal system informs the insanity defence, the fact remains that there is a moment where the criminal act of the defendant is not linked with the personality. This means where the defendant was not aware of what he was doing, there is a lack of such awareness, which does not make the criminal responsibility complete. In other words, where there is an incomplete criminal responsibility arising out of lack of awareness due to mental illness, there is not criminal responsibility.


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Torry, Z. D. & Billick, S. B., 2010. Overlapping Universe: Understanding Legal Insanity and Psychosis. Psychiatric Quarterly , Volume 81, p. 253–262.

LaBrode, R. T., 2007. Etiology of the psychopathic serial killer: An analysis of antisocial personality disorder, psychopathy, and serial killer personality and crime scene characteristics. Brief Treatment and Crisis Intervention , 7(2), pp. 151-160.

Green, S. et al., 2011. Introduction. In: J. P. T. Higgins & S. Green, eds. Cochrane Handbook for Systematic Reviews of Interventions . London: John Wiley and Sons.

YP, R. B., 2016. Forensic Medicine: Prep Manual for Undergraduates - E-Book. s.l.:Elsevier Health Sciences.

Goodheart, L. B. & Rogers, A., 2012. Murder on Trial 1620-2002. s.l.:State University of New York Press.

Morris, T. & Blom-Cooper, L., 2011. Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life. s.l.:Waterside Press .

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Attorney General Reference (No 3 of 1994) [1997] 3 WLR 421. (1997).

R v Byrne [1960] 2 QB 396 (1960).

M’Naghten's Case [1843] All ER Rep 229 (1843).

Hill v Baxter [1958] 1 QB 277 (1958).

R v Porter (1933) 55 CLR 182 (1933).

R. v. Arnold 1724, 16 St.Tr.695 (1724).

Herring, J., 2020. Criminal Law Text: Cases, and Materials. s.l.:Oxford University Press.

Loake v CPS [2017] EWHC 2855 (Admin) (2017).

Monaghan, N., 2020. Criminal Law Directions. s.l.:Oxford University Press.

(1920) 15 Cr. App. R. 162 (1920).

(1919) 14 Cr. App. R. 48 at 55 (1919).

Ward, T., International Journal of Law and Psychiatry. A terrible responsibility Murder and the insanity defence in England, 1908–193. International Journal of Law and Psychiatry, Volume 25, p. 363 – 379.

Biagi-Chai, F., 2013. Serial Killers: Psychiatry, Criminology, Responsibility. s.l.:Routledge.

Penney, S., 2012. Impulse control and criminal responsibility: Lessons from neuroscience. International journal of law and psychiatry , 35(2), pp. 99-103.

Durham v United States, 214 F. 2d. 862 (1954) (1954).

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