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Post-Hinckley Changes Make Insanity Defense Hard For Colo. Suspect

James Holmes in a photograph taken by police during his booking.
Arapahoe County Sheriff
James Holmes in a photograph taken by police during his booking.

Whether James Holmes, the man accused of killing 12 people and wounding 58 at an Aurora, Colo., movie theater will mount an insanity defense isn't yet known.

If he does, though, it won't be an easy sell. As NPR's Carrie Johnson reported last year in a story about the man accused in the Tucson, Ariz., shooting rampage:

"Things got a lot more difficult for defendants who wanted to plead insanity after John Hinckley shot President Ronald Reagan almost 30 years ago. The outcry was so great that Congress changed federal law.

" 'The defense now has to prove by clear and convincing evidence, which is an extremely high burden ... that the defendant did not understand the wrongfulness of his conduct,' says Barry Boss, a partner at the Cozen O'Connor law firm. Boss is a former public defender for clients who say they are too mentally ill to be held responsible for their actions."

Most states made their laws even tighter than the feds.' Colorado is among them. Daniel Filler, "a criminal law expert and professor in the Earle Mack School of Law at Drexel University in Philadelphia," writes The Christian Science Monitor:

"Says the insanity defense will certainly be under consideration. But, he notes, Colorado is one of the tougher states in terms of using what is often a controversial defense.

"The Colorado insanity defense clause has two requirements, he says. First, the defendant must have been suffering from a genuine mental illness at the time of the crime. 'It cannot be something that was drug-induced,' for example, he notes."

Then, the defense must show that the accused didn't know right from wrong.

"This is a very tough standard because even in the case of extremely mentally ill individuals, most would know that picking up a gun and shooting people in a movie theater was not a right thing to do," Filler told the Monitor.

Related report from PBS-TV'sFrontline -- "From Daniel M'Naughten to John Hinckley: A Brief History of the Insanity Defense."

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Mark Memmott is NPR's supervising senior editor for Standards & Practices. In that role, he's a resource for NPR's journalists – helping them raise the right questions as they do their work and uphold the organization's standards.

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