Raising the Insanity Plea

Abstract

This article examines whether counsel has an ethical duty to assert the insanity defense, despite the client’s objections, when counsel believes that raising the defense is in the client’s best interest. Two sources of authority are available to resolve the ethical dilemmas associated with raising or failing to raise the insanity defense: (i) the state ethics codes of professional responsibility, and (ii) judicial decisions that apply the Strickland v. Washington standard of review to Sixth Amendment claims of ineffective assistance of counsel. State ethics codes that are based on either the ABA Model Code of Professional Responsibility or the ABA Model Rules of Professional Conduct designate the client as the autonomous decision maker when deciding whether to raise the insanity defense. This article explores the rules and aspirations of both regulatory texts that pertain to the lawyer’s role when representing a mentally impaired client. With regard to the second major source of regulation, the courts are divided on whether or not a defendant’s Sixth Amendment right to effective assistance of counsel either authorizes or compels counsel to raise the insanity defense over the client’s objections. This article asserts that in light of these two sources of authority, counsel should be in a position to formulate an approach that respects the rights of the client while allowing counsel to comply with ethical duties.

Keywords: insanity defense, counsel, Strickland v. Washington, ineffective assistance