A person charged with a felony can deny that he or she did what the prosecution claims he did or admit the charges against him or her. However, even agreeing that he or she committed the act does not mean that the defendant believes that he or she broke the law and must go to prison.

The law provides several “affirmative defenses” for defendants. These are legal defenses in which the defendant admits committing the act, but had a legally acceptable excuse, such as self-defense.

Another affirmative defense available under West Virginia law is the insanity defense. This affirmative defense predates the United States, and comes to us through English common law. The concept goes back at least as far as 1581, when a legal treatise stated that a person who killed someone cannot be punished for murder if he is a “madman or a natural fool, or a lunatic in the time of his lunacy.”

This was later codified into law and known as the M’Naughten Rule. The standard under the rule is that the defendant either did not understand what he or she did, or could not distinguish right and wrong because of mental illness. Though this is the rule in most states, West Virginia uses a different standard.

In this state, we have the “Model Penal Code” test. A West Virginia defendant must be found not guilty by reason of insanity if:

1) He has been diagnosed with a “relevant mental defect,” and

2) At the time of the incident, the defendant was unable to either understand the criminality of his or her conduct, or conform his or her conduct to the requirements of the law.

In other words, the defendant either could not tell right from wrong at the time, or was unable to control him- or herself to avoid the incident.

Whether an insanity plea, or other affirmative defense, is a good option for you is something your defense attorney will discuss with you.