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Option Likely outcome and barriers Case citations, references Insanity Most states have an insanity defense with the standard of proof a cognitive test, whether the defendant knew the act was wrong. Barrier to success is that the act of provoking an officer was done knowing it is wrong, thereby increasing chance of provoked homicide. It is unlikely to succeed unless defendant is delusional regarding the nature of the act. There may be resistance from victims and their families. R. v. Hadfield,45 Mr. P.,26 U.S. v. Israel,49–51 Diminished capacity Most jurisdictions (not federal) permit evidence of mental illness to negate a high element of intent (e.g., knowing and purposeful). The act of intentionally provoking police into killing undercuts this argument. Additionally, the argument generally is inapplicable to general intent offenses. Thus, a mens rea approach is unlikely to succeed. Nebraska v. Churchich,52,53 California v. Park,54 Washington v. Montgomery55 Mitigation Evidence of mental illness as a dynamic in provoking police is often useful at sentencing. It is best employed when the defendant pleads guilty. Washington v. Burton57 Diversion (veterans) Problem-solving courts for veterans may employ diversion programs for a wider variety of crimes. Defendants with service-connected trauma-related disorders are best suited for this tactic. Case of Sgt. Brad Eifert56 Diversion (civilians) Problem-solving courts in nonveteran contexts often exclude major crimes and those involving firearms or mandatory sentences. Suitable candidates usually have serious mental illness or substance use and are willing to enter a guilty plea. USDOJ Bureau of Justice Assistance, America’s Law Enforcement and Mental Health Project. 42 US Code 3711 (2000)4,5 Introducing reasonable doubt (failure of proof) Defendants can argue that the purpose of threatening police was to cause their own death. When formal defenses of insanity and diminished capacity are not invoked, it may be possible to proffer evidence on the existence of mental illness via Federal Rule of Evidence 401 or similar state statute. FRE 401–40360 (theoretical) Therapeutic jurisprudence Ideally, the court would be receptive to incorporating mental illness into a formulation of a defendant’s provocative behavior. Potential outcomes can include diversion to the mental health system and reduction in the charges to accommodate problem-solving court parameters. Using the methodology of appellate decisions, there were no cases reported. Successful applications of TJ could exist in isolated cases or within mental health court environments.
