The rights of the defendant and public interest in proving insanity under the law of New York

Available in Russian

Price 150 Rub.

Author: Aleksey Grin'ko

DOI: 10.21128/1812-7126-2021-3-108-124

Keywords: burden of proof; insanity defense; the rights of the defendant; U.S. criminal procedure law


Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.

About the author: Aleksey Grin'ko – Master of Laws, Moscow, Russia.

Citation: Grin'ko A. (2021) Prava obvinyaemogo i publichnye interesy pri dokazyvanii nevmenyaemosti v pravovoy sisteme shtata N'yu-York [The rights of the defendant and public interest in proving insanity under the law of New York]. Sravnitel'noe konstitutsionnoe obozrenie, vol.30, no.3, pp.108–124. (In Russian).


Allen R.J. (2014) Burdens of Proof. Law, Probability and Risk, vol.13, no.3–4, pp.195–219.

Amar A.R. (2002) Hugo Black and the Hall of Fame. Alabama Law Review, vol.53, no.4, pp.1221–1248.

Borum R., Fulero S.M. (1999) Empirical Research on the Insanity Defense and Attempted Reforms: Evidence Toward Informed Policy. Law and Human Behavior, vol.23, no.3, pp.375–394.

Buettner R. (2013) Mentally Ill but Insanity Plea Is Long Shot. The New York Times, 3 April. Available at: (accessed: 22.05.2021).

Callahan L.A., Steadman H.J., McGreevy M.A., Robbins P.C. (1991) The Volume and Characteristics of Insanity Defense Pleas: An Eight-State Study. Bulletin of the American Academy of Psychiatry and the Law, vol.19, no.4, pp.331–338.

Fahey E.M., Groschadl L., Weaver B. (2020) The Angels that Surrounded My Cradle: The History, Evolution, and Application of the Insanity Defense. Buffalo Law Review, vol.68, no.3, pp.805–856.

Fleming J., Jr. (1961) Burdens of Proof. Virginia Law Review, vol.47, no.1, pp.51–70.

Janofsky J.S., Hanson A., Candilis P.J., Myers W.C., Zonana H., Irving B. (2014) AAPL Practice Guideline for Forensic Psychiatric Evaluation of Defendants Raising the Insanity Defense. Journal of the American Academy of Psychiatry and the Law, vol.42, no.4, pp.3–76.

Jeffries J.C., Jr., Stephan P.B. (1979) Defenses, Presumptions, and Burden of Proof in the Criminal Law. The Yale Law Journal, vol.88, no.7, pp.1325–1979.

Kinney B.F. (2009) An Incompetent Jurisprudence: The Burden of Proof in Competency Hearings. University of California, Davis, Law Review, vol.43, no.2, pp.683–712.

Kubantsev S.P. (2006) Institut nevmenyaemosti v ugolovnom prave SShA i prava cheloveka: Avtoref. dis. … kand. yurid. nauk [Insanity defense in American penal law and human rights: Abstract of a dissertation … candidate of legal science], Moscow. (In Russian).

Melilli K.J. (1992) Prosecutorial Discretion in an Adversary System. Brigham Young University Law Review, vol.1992, no.3, pp.669–704.

Messonnier T.M. (1996) Neo-Federalism, Popular Sovereignty and the Criminal Law. Akron Law Review, vol.29, no.3. Available at: (accessed: 22.05.2021).

Rolf C.A. (2006) From M’Naghten to Yates — Transformation of the Insanity Defense in the United States — Is It Still Viable? Rivier College Online Academic Journal, vol.2, no.1. Available at: (accessed: 22.05.2021).

Weiner B. (1985) Mental Disability and Criminal Law. In: Brakel S.J., Parry J., Weiner B.A. (eds.) The Mentally Disabled and the Law, 3rd ed., Chicago, IL: American Bar Association, p.693–801.