Mental Illness Defense: Criminal Cases


In Massachusetts a person cannot be held responsible for a crime if they have a “mental disease or defect,” and as a result of that condition they are substantially unable to appreciate the wrongfulness of their conduct or they are substantially unable to conform their conduct to the requirements of the law. Put otherwise, the defendant’s mental condition must have rendered them unable to realize that their behavior was wrong or  unable to make themselves behave lawfully. While lawyers and judges in the Commonwealth refer to this as “criminal responsibility,” it is more commonly known as an “not guilty by reason of insanity.” At trial, forensic psychologists give their opinion as to whether the accused was criminally responsible based on their review of case information, medical records, and clinical evaluations of the accused. The jury or judge decides the verdict: guilty, not guilty, or not criminally responsible due to mental illness.

A person found not guilty by reason of insanity does not have a criminal record. They have been found not guilty and therefore cannot be sentenced to a correctional institution or placed on probation. However, the judge can order a 40-day period of hospitalization for further evaluation. During that time, the institution may choose to move for civil commitment if they believe that the patient is a danger to themself or others. That type of commitment is subject to a separate court proceeding unrelated to the criminal case.

In many cases, the person found not criminally responsible has received medical treatment since the date of offense and is not at risk of having further hospitalization ordered.

I have represented multiple clients accused of serious violent crimes who have been found not criminally responsible for their crimes. It is important to have an attorney who has experience working with individuals who suffer from mental illness who can immediately identify a potential criminal responsibility defense and line up a forensic psychologist to evaluate the client quickly. A client behaving bizarrely at his initial court appearance will likely be sent for an evaluation at Bridgewater State Hospital (which is a prison with enhanced mental health treatment) or a locked Department of Mental Health hospital where he will be medicated upon arrival. It is essential that the psychologist hired by the defense team evaluate the client within days of his court appearance so that there has not been enough time for the medication to take effect and improve his functioning. It is essential that the psychologist sees the individual at a similar level of mental functioning as when the crime occurred.

Mental illness defense: Criminal cases resulting in a win recently: Client found NGRI and was not involuntarily committed to a Department of Mental Health hospital. Another client found NGRI and was not involuntarily committed.

Criminal responsibility is separate and apart from the issue of competence to stand trial and the two legal issues are often confused.

Whether an individual is competent to face his charges rests on whether he presently is able to consult with his lawyer with reasonable understanding of the proceedings against him. When evaluating a question of criminal responsibility, one looks at the accused individual’s mental state at the time that he committed the offense. The question of competency focuses on the individual’s present state and whether he can understand the legal proceedings regardless of his condition at the time of the offense. A person can start a case lacking competence, have competence restored with treatment and then may once again not be competent at a later time during the proceeding. Some individuals are charged with crimes and can never be found competent to face criminal charges. In those cases, where there is medical evidence that my client will never be restored to competency, I petition the court to dismiss the charges prior to the statutory expiration date.


"Keren worked with my son who has serious mental health issues and was very compassionate and knowledgeable about how to handle his case. His charges were ultimately dismissed after more than a year of amazing work on her part. I am so glad that we hired her."


Mental illness can also be an important consideration if an individual confesses to a crime at a time that he is actively suffering from acute mental illness. For a criminal defendant’s statement to be admitted as evidence, it must have been made voluntarily. In determining whether a confession was voluntary, courts will consider the conduct of the defendant around the time of questioning, the defendant’s age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, and the details of the interrogation, including the recitation of Miranda warnings. While there is no bar to accepting statements made by mentally ill individuals as evidence against them, the judge must determine whether the defendant’s statements “were the product of a rational intellect.” If the judge does not make such a finding, the confession must be “suppressed” which means it would be excluded as evidence at trial.

A Superior Court judge suppressed my mentally ill client’s confession to an armed robbery. When I met my client for the first time one day after his arrest and confession I immediately recognized that he was off of his medication and was severely decompensated. I immediately lined up a forensic psychologist to evaluate him before the medication provided to him at the hospital where the court had sent him could improve his mental functioning. Following a two-day hearing the judge agreed that his confession was involuntary. The prosecution was left with no choice but to dismiss the case because the remaining evidence was insufficient to convict him.

If someone you care about who suffers from mental illness has been charged with a crime, you need a lawyer with the knowledge experience to immediately identify the issue and take action. For mental illness defense criminal cases, I have a fairly long list of skilled forensic psychologists who I trust so that when such a case comes to me I can line one of them up immediately to evaluate my client for issues of competency, criminal responsibility, and voluntariness of their confessions. Please contact my office to set up a consultation.