questions where their elected representatives fail to do so or refuse to proceed with a change that the public desires. INJUNCTION A court order by which an individual is required to perform, or is restrained from performing, a particular act. A writ framed according to the circumstances of the individual case. An injunction command s an act that the court regards as essential to justice, or it prohibits an act that is deemed to be contrary to good conscience. It is an EXTRAORDINARY REMEDY , reserved for special circumstances in which the temporary preservation of the STATUS QUO is necessary. An injunction is ordinarily and properly elicited from other proceedings. For example, a landlord might bring an action against a tenant for waste, in which the right to protect the landlord’s interest in the ownership of the premises is at issue. The landlord might apply to the court for an injunction against the tenant’s continuing harmfu l use of the property. The injunction is an ancillary remedy in the action against the tenant. A sample informed consent form (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Witness’s Statement: The information in this consent form was accurately conveyed to the participant. Informed Consent/Consent to Release Information for Research 3. Written consent including access to files or other special procedures: In addition to the participant’s agreement, add the following when the consent procedure includes access to files: I give the researcher permission to review my central file for the reason described in this consent form. Witness’s Name Printed Witness’s Signature In addition to the participant’s agreement, use the following format to include permission for special procedures (note—these are examples): I consent to the following (initial the items you agree to, and cross-out the items you do not agree to) ______________ My test results can be added to my Psychology Services file for future treatment purposes. ______________ I would like feedback from the researcher regarding my literacy needs. Name (printed) Register # Signature Date DateSignature 2. Written consent with witness signature: In addition to the participant’s agreement, add the following when the consent form is read aloud to a participant because s/he is a poor reader: Name (Printed) B. Signatures. 1. Written consent: Add the following to the consent form when the IRB determines that written consent is required: Participant’s Agreement: I have read the above information (or it has been read aloud to me). The study has been explained to me. My questions have been answered. I voluntarily agree to be in this study. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 INJUNCTION Injunctive relief is not a matter of righ t, but its denial is within the discretion of the court. Whether or not an injunction will be granted varies with the facts of each case. The courts exercise their power to issue injunctions judiciously, and only when necessity exists. An injunction is usually issued only in cases where IRREPARABLE INJURY to the rights of an individual would result otherwise. It must be readily apparent to the court that some act has been performed, or is threatened, that will produce irreparable injury to the party seeking the injunction. An injury is considered irrepa- rable when it cannot be adequately compensat- ed by an award of damages. The pecuniary damage that would be incurred from the threatened action need not be great, however. If a loss can be calculated in terms of money, there is no irreparable injury. The consequent refusal by a court to grant an injunction is, therefore, proper. Loss of profits alone is insufficient to establish irreparable injury. The potential destruction of property is sufficient. Injunctive relief is not a remedy that is liberally granted, and, therefore, a court will always consider any hardship that the parties will sustain by the granting or refusal of an injunc- tion. The court that issues an injunction may, in exercise of its discretion, modify or dissolve it at a later date if the circumstances so warrant. Types of Injunction Preliminary A preliminary or temporary injunc- tion is a provisional remedy that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent dissolution of the plaintiff’s rights. The main reason for use of a preliminary injunction is the need for immediate relief. Preliminary or temporary injunctions are not conclusive as to the rights of the parties, and they do not determine the merits of a case or decide issues in controversy. They seek to prevent threatened wrong, further injury, and irreparable harm or injustice until such time as the rights of the parties can be ultimately settled. Preliminary in junctive relief ensures the ability of the court to render a meaningful decision and serves to prevent a change of circumstances that would hamper or block the granting of proper relief following a trial on the merits of the case. A motion for a preliminary injunction is never granted automatically. The discretion of the court should be exercised in favor of a temporary injunction, which maintains the status quo until the final trial. Such discretion should be exercised against a temporary injunc- tion when its issuance would alter the status quo. For example, during the Florida presidential- election controversy in 2000, the campaign of GEORGE W. BUSH asked a federal appeals court for a preliminary injunction to halt the manual counting of ballots. It sought a preliminary injunction until the U.S. Supreme Court could decide on granting a permanent injunction. In that case, Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000). the U.S. Court of Appeals for the Eleventh Circuit refused to grant the injunction, stating that the Bush campaig n had not “shown the kind of serious and immediate injury that demands the extraordinary relief of a prelimi- nary injunction.” Preventive Injunctions An injunction direct- ing an individual to refrain from doing an act is preventive, prohibitive, prohibitory, or negative. This type of injunction prevents a threatened injury, preserves the status quo, or restrains the continued commission of an ongoing wrong, but it cannot be used to redress a consum- mated wrong or to undo that which has already been done. The Florida vote count in the presidential election of 2000 again serves as a good example. There, the Bush campaign sought preventive injunctions to restrain various counties from performing recounts after the Florida results had been certified. The Bush campaign did not attempt to overturn results already arrived at, but rather attempted to stop new results from coming in. In turn, the Gore campaign attempted to obtain a preventive injunction to prevent Florida’s SECRETARY OF STATE from certifying the election results. Mandatory Injunctions Although the court is vested with wide discretion to fashion injunctive relief, it is also restricted to restraint of a contemplated or threatened action. It also might compel SPECIFIC PERFORMANCE of an act. In such a case, it issues a mandatory injunction, commanding the performance of a positive act. Because mandatory injunctions are harsh, courts do not favor them, and they rarely grant them. Such injunctions have been issued to compel the removal of buildings or other structures wrongfully placed upon the land of another. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INJUNCTION 429 Permanent Injunctions A permanent or per- petual injunction is one that is granted by the judgment that ultimately disposes of the injunction suit, ordered at the time of final judgment. This type of injunction must be final relief. Permanent injunctions are perpetual, provided that the conditions that produced them remain permanent. They have been granted to prevent blasting upon neighboring premises, to enjoin the dumping of earth or other material upon land, and to prevent pollution of a water supply. An individual who has been licensed by the state to practice a profession may properly demand that others in the same profession subscribe to the ethical standards and laws that govern it. An injunction is a proper remedy to prevent the illegal practice of a profession, and the reli ef may be sought by either licens ed practitioners or a professional association. The illegal PRACTICE OF LAW, medicine, dentistry, and architecture has been stopped by the issuance of injunctions. Acts that are injurious to the public health or safety may be enjoined as well. For example, injunctions have been issued to enforce laws providing for the eradication of diseases in animals raised for food. The government has the authority to protect citizens from damage by violence and from fear through threats and intimidation. In some states, an injunction is the proper remedy to bar the use of violence against those asserting their rights under the law. Acts committed without JUST CAUSE that interfere with the carrying on of a business ma y be enjoined if no other adequate remedy exists. A TRADE SECRET, for example, may be protected by injunction. An individual’s right of personal privacy may be protected by an injunction if there is no other adequate remedy, or where a specific statutory provision for injunctive relief exists. An individual whose name or picture is used for advertising purposes without the indivi- dual’s consent may enjoin its use. The theory is that injunctive relief is proper because of a celebrity’s unique property interest in the commercial use of his or her name and likeness (i.e., their right of publicity). Restraining Orders A RESTRAINING ORDER is granted to preserve the status quo of the subject of the controversy until the hearing on an application for a temporary injunction. A TEMPORARY RESTRAINING ORDER is an extraordinary remedy of short duration that is issued to prevent unnecessary and irreparable injury. Essentially, such an order suspends proceedings until an opportunity arises to inquire whether an injunction should be granted. Unless ex- tended by the court, a temporary restraining order ceases to operate upon the expiration of the time set by its terms. Contempt An individual who violates an injunction may be punished for contempt of court. A person is not guilty of contempt, however, unless he or she can be charged with knowledge of the injunction. Generally, an individual who is charged with contempt is entitled to a tri al or a hearing. The penalty imposed is within the discretion of the court. Ordinarily, punishment is by fine, imprisonment, or both. FURTHER READINGS Stoll-DeBell, Kirstin. 2010. Injunctive Relif: Temporary Restraining Orders and Preliminary Injunctions. Washington, D.C.: American Bar Association. Suro, Robert, and Jo Becker. “Florida Legislature Ready to Intervene; Special Session on Electors to Convene on Friday.” Washington Post (December 7, 2000). Waterman, Thomas Whitney, and Robert Henley Eden. 2008. A Compendium of the Law and Practice of Injunctions. Charleston, SC: BiblioBazaar. CROSS REFERENCE Equity. INJURE To interfere with the legally protected interest of another or to inflict harm on someone, for which an action may be brought. To damage or impair. The term injure is comprehensive and can apply to an injury to a person or property. CROSS REFERENCE Tort Law. INJURIOUS FALSEHOOD A fallacious statement that causes intentional damage to an individual's commercial or econom- ic relations. Any type of defamatory remark, either written or spoken, that causes pecuniary loss to an individual through disparagement of a particular business dealing. For example, the early cases on INJURIOUS FALSEHOOD involved oral aspersions cast upon an individual’s ownership of land, which prevented GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 430 INJURE the individual from leasing or selling it. This tort has also been called disparagement of property, slander of goods, and trade libel. Injurious falsehood is distinguishable from the more general harm to reputation in LIBEL AND SLANDER . INJURY A comprehensive term for any wrong or harm done by one individual to another individual ’s body, rights, reputation, or property. Any inter- ference with an individual’s legally protected interest. A civil injury is any damage done to person or property that is precipitated by a breach of contract, NEGLIGENCE, or breach of duty. The law of torts provides remedies for injury caused by negligent or intentional acts. An accidental injury is an injury to the body caused unintentionally. Within the meaning of workers’ compensation acts, it is an injury occurring in the COURSE OF EMPLOYMENT. One who is injured might be able to recover damages against the individual who caused him or her harm, because the law seeks to provide a remedy for every injury. INLAND WATERS Canals, lakes, rivers, water courses, inlets, and bays that are nearest to the shores of a nation and subject to its complete sovereignty. Inland waters, also known as internal waters, are subject to the total sovereignty of the country as much as if they were an actual part of its land territory. A co astal nation has the right to exclude foreign vessels, subject to the right of entry in times of distress. Whether or not particular waters are to be regarded as inland waters has traditionally been dependent upon historical and geographical factors. Certain types of shoreline configura- tions have been regarded as confining bodies of water, such as bays. In addition, there has been a recognition that other areas of water that are closely connected to the shore may be regarded as inland waters based up on the manner in which they have been treated by the coastal nation, although they do not meet any exact geographical test. Historic title to inland waters can be claimed only in situations when the coastal nation has asserted and maintained dominion and control over those waters. CROSS REFERENCES Navigable Rivers; Water Rights. INNKEEPER An individual who, as a regular business, pro- vides accommodations for guests in exchange for reasonable compensation. An inn is defined as a place where lodgings are made available to the public for a charge, such as a hotel, motel, hostel, or guest house. A guest is a transient who receives accommodations at an inn, transiency being the major character- istic distinguishing him or her from a boarder. In order for the relationship of innkeeper and guest to be established, the parties must intend to have such a relationship. The individual accommo- dated must be received as a guest and must obtain accommodations in such capacity. The individual need not, however, register. An innkeeper must accept all unobjection- able individuals offering themselves as guests, provided the innkeeper has available accom- modations and the guests are willing to pay the reasonable charges. Proper grounds for a refusal to receive a proposed guest are ordinarily restricted to either lack of accommodations or the unsuitability of the guest. It is improper and a violation of an individual’s CIVIL RIGHTS for an i nnkeeper to refuse accommodations on the basis of race, creed, or color. Upon assignment to a room, a guest is entitled to its exclusive occupancy for all lawful purposes, subject to the right of the innkeeper to enter the room for proper purposes, such as to assist the police in their investigation of a crime. Compensation An innkeeper is permitted to charge a reason- able compensation only, and must ordinarily fulfill his or her entire obligation prior to being entitled to the compensation. In the event that a guest does not pay, the innkeeper has a lien on the guest’s property. Such a lien ordinarily extends to all property brought by the guest to the inn and generally co ntinues until the debt is satisfied unless the innkeeper voluntarily sur- renders the goods. The innkeeper may remove a guest upon refusal to pay his or her bill but cannot, however, use excessive force. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INNKEEPER 431 Liability An innkeeper has an obligation to reasonably protect guests from injury while at the inn. This duty of reasonable care mandates vigilance in protection of the guests from foreseeable risks. The innkeeper must protect guests from injury at the hands of other guests and from assaults and negligent acts of his or her own employees. The obligation to protect guests is not met merely by warning them, but must be coupled with a policing of the premises. An innkeeper must take reasonable care regarding the safety of the guests’ property and must warn guests of any hidden dangers that can be reasonably foreseen. This duty includes making inspections to ascertain that the pre- mises are safe. The innkeeper is liable for any injuries arising from his or her failure to comply with fire regulations. Reasonably safe means of ingress and egress must be provided. An innkeeper is required to use reasonable care to keep the hallways, passageways, and stairways well lighted and free from obstruc- tions or hazards. An innkeeper who furnishes appliances or furniture for the convenience of guests must maintain them in a reasonably safe condition. Similar duties are required in connection with plumbing apparatus and swimming pools. Reasonable care must be exercised by an innkeeper in the operation and maintenance of an elevator, which means that the elevator must be inspected and repaired to keep it in safe condition. The obligation to maintain the premises in a reasonably safe condition applies to windows and screens that are defective or insecurely fastened. Failuretohaveprotectivewindowgrillsorto guard air shafts located on a roof does not, however, necessarily constitute NEGLIGENCE. The prevalent COMMON LAW view makes an innkeeper liable as an insurer for all PERSONAL PROPERTY brought by the guest to the inn that is lost through the innkeeper’s fault. There is no liability, however, if the guest assumes the entire and exclusive care, control, and possession of his or her property. State laws have been enacted with respect to the liability of inn- keepers for the property of their guests. Generally the statutes modify the common law by limiting the innkeeper’s liability to a specified amount and by requiring deposit of valuables. Guests must have notice of any limitations of the innkeeper’s liability. INNOCENT Absent guilt; acting in good faith with no knowledge of defects, objections, or inculpative circumstances. A person accused of and prosecuted for the commission of a crime is presumed innocent until proved guilty BEYOND A REASONABLE DOUBT. INNOCENT PURCHASER An individual who, in good faith and by an honest agreement, buys property in the absence of sufficient knowledge to charge him or her with notice of any defect in the transaction. An individual is an innocent or good-faith purchaser when he or she buys something, paying VALUABLE CONSIDERATION, without actual or constructive notice of any legal infirmity in the sale. The purchaser of a gold bracelet for $500 from a jewelry store cannot be charged with notice that the bracelet was stolen. INNS OF CHANCERY Ancient preparatory colleges where qualified clerks studied the drafting of writs, which was a function of the officers of the Court of Chancery. StudentsattendedInnsofChancerytolearn the basics of law and to qualify for admission after two years of instruction to the INNS OF COURT to which the Inn of Chancery was attached. The role of the Inns of Chancery in the English LEGAL EDUCATION process significantly declined in the eighteenth and nineteenth centuries. INNS OF COURT Organizations that provide prep aratory education for English law students in order to teach them to practice in court. Inns of Court were founded in the begin- ning of the fourteenth century. Membership in an inn is tantamount to membership in an integrated bar association in the United States. Inns of Court have a COMMON COUNCIL of LEGAL EDUCATION, which gives lectures and holds examinations. Currently, inns have the exclusive authority to confer the degree of barrister-at-law, a prerequisite to practice as an advocate or counsel in the superior courts in England. INOPERATIVE Void; not active; ineffectual. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 INNOCENT The term inoperative is commonly used to indicate that some force, such as a statute or contract, is no longer in effect and legally binding upon the persons who were to be, or had been, affected by it. INQUEST An inquiry by a CORONER or medical examiner, sometimes with the aid of a jury, into the cause of a violent death or a death occurring under suspicious circumstances. Generally an inquest may result in a finding of natural death, accidental death, suicide, or murder. Criminal prosecution may follow when culpable conduct has contributed to the death. The body of jurors called to inquire into the circumstances of a death that occurred suddenly, by violence, or while imprisoned. Any body of jurors called to inquire into certain matters. (A GRAND JURY is sometimes called a grand inquest, for example.) The determination or findings of a body of persons called to make a legal inquiry or the report issued after their investigation. The foundation of the modern jury system can be trace d back to the Carolingian empire of medieval Europe durin g the eighth to the tenth centuries. The monarchs used a procedure called inquest, or inquisition, to help them consolidate their authority in the realm. They called together the people of the countryside and required them to recite what they consid- ered to be the immemorial rights of the king. Once these rights were ascertained, they were adopted by the government and considered established. There was no accusation, VERDICT, or judgment in these proceedings, but the inquest fixed the right of the government to obtain information from its citizens. The Norman invaders were not long on English soil when they used the inquest to compile the DOMESDAY BOOK, a census compiled between 1085 and 1086 to record the ownership of land throughout the kingdom. For this inquiry, citizens were called and required to give testimony under OATH about their land and PERSONAL PROPERTY. The inquest was also used in local courts in England during the Middle Ages. Because a person could not be tried for a crime until accused, a panel of four men from each village and twelve from each hundred appeared before the court and charged certain individuals with crimes. The panel members appeared voluntarily, however, and were not summoned by a public officer as is done for an inquest today. Then in 1166 a law called the Assize of Clarendon made the inquest procedure manda- tory. The panel of men was required to appear before local sheriffs and make regular accusations on their oaths. These cases then were tried in the royal courts because of the king’sspecialinterest in keeping the peace. This procedure was the origin of the modern GRAND JURY. A further step in consolidating the king’s powers came with creation of the office of the coroner, so named for its service to the cro wn. In the Middle Ages the coroner was a powerful local official who kept records of appeals from lower courts, accusations, hangings, and public financial matters. He held inquests to investi- gate royal rights concerning fish, shipwrecks, treasure trove, and unexp lained deaths. The purpose of such inquests was always to deter- mine the extent of the king’s financial interests. Anytime there was a death, the crown took whatever object had caused the death and all of the personal property of anyone who com- mitted suicide or was convicted of a felony. From this early function of fiscal administra- tion, the coroner today has become primarily responsible for managing dead bodies, but the inquest is still the procedure the coroner uses for investigation. CROSS REFERENCE Clarendon, Constitutions of. INQUIRY, COMMISSIONS OF Individuals employed, during conciliation, to investigate the facts of a particular dispute and to submit a report stating the facts and proposing terms for the resolution of the differences. INQUISITORIAL SYSTEM A method of legal practice in which the judge endeavors to discover facts while simultaneously representing the interests of the state in a trial. The inquisitorial system can be defined by comparison with the adversarial, or accusator- ial, system used in the United States and Great Britain. In the ADVERSARY SYSTEM, two or more opposing parties gather evidence and present the evidence, and their arguments, to a judge or jury. The judge or jury knows nothing of the litigation until the parties present their cases to the decision maker. The DEFENDANT in a criminal trial is not required to testify. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INQUISITORIAL SYSTEM 433 In the inquisitorial system, the presiding judge is not a passive recipient of information. Rather, the presiding judge is primarily respon- sible for supervising the gathering of the evidence necessary to resolve the case. He or she activ ely steers the search for evidence and questions the witnesses, including the respon- dent or defendant. Attorneys play a more passive role, sugges ting routes of inquiry for the presiding jud ge and following the judge’s questioning with questioning of their own. Attorney questioning is often brief because the judge tries to ask all relevant questions. The goal of both the adversarial system and the inquisitorial system is to find the truth. But the adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it, whereas the inquisitorial system seeks the truth by question- ing those most familiar with the events in dispute. The adversarial system places a premium on the individual rights of the accused, whereas the inquisitorial system places the rights of the accused secondary to the search for truth. The inquisitorial system was first developed by the Catholic Church during the medieval period. The ECCLESIASTICAL COURTS in thirteenth- century England adopted the method of adjudi- cation by requiring witnesses and defendants to take an inquisitorial OATH administered by the judge, who then questioned the witnesses. In an inquisitorial oath, the witness swore to truthfully answer all questions asked of him or her. The system flourished in England into the sixteenth century, when it became infamous for its use in the Court of the STAR CHAMBER, a court reserved for complex, contested cases. Under the reign of King Henry VIII, the power of the Star Chamber was expanded, and the court used torture to compel the taking of the inquisitorial oath. The Star Chamber was eventually eliminated as repugnant to basic liberty, and England gradually moved toward an adversarial system. After the French Revolution, a more refined version of the inquisitorial syste m developed in France and Germany. From there it spread to the rest of continental Europe and to many African, South American, and Asian countries. The inquisitorial system is now more widely used than the adversarial system. Some countries, such as Italy, use a blend of adversarial and inquisitorial elements in their court system. The court procedures in an inquisitorial system vary from country to country. Most inquisitorial systems provide a full review of a case by an appeals court. In civil trials under either system of justice, the defendant, or respondent, may be required to testify. The most striking differences between the two systems can be found in criminal trials. In most inquisitorial systems, a crimin al defendant does not have to answ er questions about the crime itself but may be required to answer all other questions at trial. Many of these other questions concern the defendant’s history and would be considered irrelevant and inad- missible in an adversarial system. A criminal defendant in an inquisitorial system is the first to testify. The defendant is allowed to see the government’s case before testifying, and is usually eager to give her or his side of the story. In an adversarial system, the defendant is not required to testify and is not entitled to a complete examination of the government’s case. A criminal defendant is not presumed guilty in an inquisitorial system. Nevertheless, since a case would not be brought a gainst a defendant unless there is evidence indicating guilt, the system does not require the PRESUMPTION OF INNOCENCE that is fundamental to the adversarial system. A trial in an inquisitorial system may last for months as the presiding judge gathers evidence in a series of hearings. The decision in an inquisitorial criminal trial is made by the collective vote of a certain number of profe ssional judges and a small group of lay assessors (persons selected at random from the population). Neither the prosecution nor the defendant has an opportu- nity to question the lay assessors for bias. Generally, the judges vote after the lay assessor s vote, so that they do not influence the conclusions of the lay assessors. A two-thirds majority is usually required to convict a criminal defendant, whereas a unanimous VERDICT is the norm in an adversarial system. The in quisitorial system does not protect criminal defendants as much as the adversarial system. This is true even though, prosecutors in the inquisitorial system do not have a personal incentive to win convictions for political gain, which can motivate prosecutors in an adversar- ial system. Most scholars agree that the two systems generally reach the same results by different means. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 434 INQUISITORIAL SYSTEM FURTHER READINGS Moskovitz, Myron. 1995. “The O.J. Inquisition: A United States Encounter with Continental Criminal Justice.” Vanderbilt Journal of Transnational Law 28. Sward, Ellen E. 1989. “Values, Ideology, and the Evolution of the Adversary System.” Indiana Law Journal 64. Van Koppen, Peter J., and Steven Penrod. 2003. Adversarial Versus Inquisitorial Justice. New York: Springer. CROSS REFERENCES Criminal Procedure; Due Proce ss of Law. INSANITY DEFENSE A defense asserted by an accused in a criminal prosecution to avoid liabilit y for the commis- sion of a crime because, at the time of the crime, the person did not appreciate the nature or quality or wrongfulness of the acts. The insanity defense is used by criminal defendants. The most common variation is cognitive insanity. Under the test for cognitive insanity, a DEFENDANT must have been so impaired by a mental disease or defect at the time of the act that he or she did not know the nature or quality of the act, or, if the defendant did know the nature or quality of the act, he or she did not know that the act was wrong. The vast majority of states allow criminal defendants to invoke the cognitive insanity defense. Another form of the insanity defense is volitional insanity, or IRRESISTIBLE IMPULSE.A defense of irresistible impulse asserts that the defendant, although able to distinguish right from wrong at the time of the act, suffered from a mental disease or defect that made him or her incapable of controlling her or his actions. This defenseiscommonincrimesofvengeance.For example, suppose that a child has been brutally assaulted. If an otherwise conscientious and law- abiding mother shoots the perpetrator, the mother may argue that she was so enraged that she became mentally ill and incapable of exerting self-control. Very few states allow the volitional insanity defense. The insanity defense should not be confused with incompetency. Persons who are incompe- tent to stand trial are held in a mental institution until they are considered capable of participating in the procee dings. The insanity defense also should be kept separate from issues concerning mental retarda- tion. The U.S. Supreme Court ruled in 2002 in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) that the execution of mentally retarded criminals constituted “cruel and unusual punishment” and that it was prohibited by EIGHTH AMENDMENT. But if a person is acquitted by reason of insanity, execution is not an option. The in sanity defense reflects the generally accepted notion that persons who cannot appreciate the consequences of their actions should not be punished for criminal acts. Most states regulate the defense with statutes, but a few states allow the courts to craft the rules for its proper use. Generally, the defense is available to a criminal defendant if the judge instructs the jury that it may consider whether the defendant was insane when the crime was committed. The judge may issue this instruction if the defendant has produced sufficient evidence at trial to justify the theory. Sufficient evidence invariably includes EXPERT TESTIMONY by psychologists and psychiatrists. John Hinckley Jr. was prosecuted for the attempted assassination of President Ronald Reagan in 1981. His acquittal by reason of insanity sparked public outcry, ultimately leading Congress to pass the Insanity Defense Reform Act. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION INSANITY DEFENSE 435 When invoking insanity as a defense, a defendant is required to notify the prosecution. In some states, sanity is determined by the judge or jury in a separate proceeding following the determination of guilt or innocence at trial. In other states, the defense is either accepted or rejected in the VERDICT of the judge or jury. Even if evidence of insanity does not win a verdict of not guilty, the sentencing court may consider it as a mitigating factor. History “Complete madness” was first established as a defense to criminal charges by the COMMON LAW courts in late-thirteenth-century England. By the eighteenth century, the complete madness defi- nition had evolved into the “wild beast” test. Under that test, the insanity defense was available to a person who was “totally deprived of his understanding and memory so as not to know what he [was] doing, no more than an infant, a brute, or a wild beast” (Feigl 1995, 161). By 1840 most jurisdictions had refined the wild beast test to cognitive insanity and supple- mented that with irresistible-impulse insanity. However, in 1843 a well-publicized ASSASSINATION attempt in England caused Parliament to eli- minate the irresistible-impulse defense. Daniel M’Naghten, operating under the delusion that Prime Minister Robert Peel wanted to kill him, tried to shoot Peel but shot and killed Peel’s secretary instead. Medical testimony indicated that M’Naghten was psychotic, and the court acquitted him by reason of insanity (M’Naghten’s Case, 8Eng.Rep.718[1843]). In response to a public furor that followed the decision, the House of Lords ordered the Lords of Justice of the Queen’s Bench to craft a new rule for insanity in the CRIMINAL LAW. What emerged became known as the M’Naghten rule. This rule migrated to the United States within a decade o f its c onception, and itstood for the better part of the next century. The intent of the M’Naghten rule was to abolish the irresistible- impulse defense and to limit the insanity defense to cognitive insanity. Under the M’Naghten rule, insanity was a defens e if at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a disease of the mind, as 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. Through the first half of the twentieth century, the insanity defense was expanded again. Courts began to accept the theories of psy- choanalysts, many of whom encouraged recogni- tion of the irresistible-impulse defense. Many states enacted a combination of the M’Naghten rule supplemented with an irresistible-impulse defense, thereby covering both cognitive and volitional insanity. The insanity defense reached its most permissive standard in Durha m v. United States, 214 F.2d 862 (D.C. Cir. 1954). The Durham rule excused a d efendant “if his unlawful act was the product of mental disease or mental defect.” The Du rham ru le was lauded by the m ental health community as progress ive because it allowed psychologists and psychia- trists to co ntribute to the JUDICIAL understand- ing of insanity. But it was also criticized for placing too much trust in the opinions of mental health professionals. Within seven years of its creation, the rule had been explicitly rejected in 22 states. It is now used only in New Hampshire. In 1964 the American Law Institute (ALI) began to reassess the in sanity defense in the course of promoting a new MODEL PENAL CODE. What emerged from the Model Penal Code Commission was a compromise between the narrow M’Naghten test and the generous Durham rule. The ALI test provided that a person was not responsible for criminal conduct if, at the time of the act, the person lacked “substantial capacity” to appreciate the conduct or to conform the conduct to the RULE OF LAW. The ALI test provided for both cognitive and volitional insanity. It also required only a lack of substantial capacity, less than complete im- pairment. The ALI version of the insanity defense was adopted by more than half the states and all but one federal circuit. Several years later, another dramatic event led to another round of restrictions on the insanity defense. In 1981 John W. Hinckley Jr. attempted to assassinate President RONALD REAGAN . Hinckley was prosecuted and acquitted of all charges by reason of insanity, and a resulting public outcry prompted Congress to enact legislation on the issue. In 1984 Congress passed the Insanity Defense Reform Act (Insan- ity Act), 18 U.S.C.A. § 17 to abolish the irresistible-impulse test from federal courts. Initially, Reagan had called for a total abolition GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 436 INSANITY DEFENSE of mental illness as a defense to criminal charges, but his administration backed down from this position after intense lobbying by various professional organizations and trade associations. The Insanity Act also placed the burden on the defendant to prove insanity. Before the Insanity Act, federal prosecutors bore the burden of proving the defendant’s sanity BEYOND A REASONABLE DOUBT . Most states joined Congress in reevaluating the insanity defense after Hinckley’sacquittal. The legislatures of these states modified and limited the insanity defense in many and varied ways. Some states shifted the BURDEN OF PROOF, and some limited the applicability of the defense in the same manner as Congress did. A few states abolished the defense entirely. Chief Justice WILLIAM H. REHNQUIST, of the U.S. Supreme Court, opined in a dissent that it is “highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant” (Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 [1985]). The Supreme Court was presented with an opportunity to clarify this area of the l aw in Clark v. Arizona , 548 U.S. 735, 126 S .Ct. 2709, 165 L. Ed. 2d 842 (2006). The case centered on an Arizona law that, while affor- ding criminal defendants the right to raise insanity as a defense, articulated a l egal stan- dard for insanity that encapsulated only half of the M’Naghten d efense. A.R.S . § 13-502(A). Arizona’s insanity defense was stated solely in terms of the defendant’s capacity to tell whether a criminal act was right or wrong. The act did not allow defendants to argue that they were insane because they failed to comprehend what they were doing while committing the act. Eric Clark, who was convicted of first- degree MURDER in an Arizona court, challenged the Arizona law, arguing that due process affords defendants the right to assert either prong of the M’ Naghten defense against cri- minal charges brought by the state or federal government. In a 6–3 decision authored by Justice DAVID SOUTER , the Court upheld the law. “[D]ue process imposes no single canonical formula- tion of legal insanity,” the Court observed. In fact, the court said that because a survey of state and federal defenses relating to cognitive incapacity shows such a wide and varied landscape, “it is clear that no particular for- mulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is sub- stantially open to state choice.” The defendant could point to no evidence that was excluded, the court emphasized, including his expert and lay testimo ny regarding his delusions, which tended to support a description of him as lacking the capacity to understand that the police officer was a human being. And, the court added, there was no doubt that the trial court considered the evidence as going to an issue of cognitive capacity. The Court conclud- ed that the defendant had his DAY IN COURT and was able to fully present an insanity defense under existing Arizona law. Similarly, the court ruled that the Due Process Clause does not dictate to state courts how they must receive evidence bearing on a crime charged against a defendant raising insanity as a defense. In Clark, the trial court applied a state common law rule of evidence called the Mott rule to preve nt the defendant from introducing medical testimony showing that his alleged cognitive incapacity negated the specific-intent element of his first-degree mur- der charge, also known as the MENS REA element. The purpose of the Mott rule, the Court said, is to enable jurors to distinguish between a defense of insanity, which requires proof of cognitive incapacity, and a defense of not guilty, which can be established simply by showing that the prosecution failed to prove every element of the offense charged. Allowing the defense to offer proof of the defendant’s cognitive inca- pacity to negate the mens rea element would only serve to confuse the jurors, and the state acted within its power by establishing a rule of evidence to prevent this outcome. Consequences When a party successfully defends criminal charges on a ground of insanity, the conse- quences vary from jurisdiction to jurisd iction. Usually, the defendant is committed to a mental institution. On the average, a defendant found not guilty by reason of insanity and committed to a mental institution is confined for twice as long as is a defendant who is found guilty and sent to prison. Very few acquitted insanity defendants are given supervised release, and even fewer are released directly following their verdict. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INSANITY DEFENSE 437 . drafting of writs, which was a function of the officers of the Court of Chancery. StudentsattendedInnsofChancerytolearn the basics of law and to qualify for admission after two years of instruction. have been issued to compel the removal of buildings or other structures wrongfully placed upon the land of another. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION INJUNCTION 429 Permanent Injunctions. to be in this study. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 INJUNCTION Injunctive relief is not a matter of righ t, but its denial is within the discretion of the court. Whether