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256.4 Insanity

    256.4.1 Insanity: Voir Dire Of Jurors As To Their Opinion Of Insanity Defense
    256.4.2 Insanity: Definition In Legal and Moral Terms
    256.4.3 Defense Of Insanity: Definition Of Mental Illness
    256.4.4 Insanity: Involuntary Medication Of Defendant At Trial Violates Right To Present A Defense
    256.4.5 Insanity: Instruction Regarding Demeanor Altering Medication
    256.4.6 Insanity: Cautionary Instruction As To Defendant’s Failure To Testify At Sanity Or Mental Competency Trial
    256.4.7 Insanity: Consideration Of All Evidence, Not Just The Expert Opinions
    256.4.8 Insanity: Jury Not Required To Accept Expert Opinion As Conclusive
    256.4.9 Insanity: Court Appointed Expert
    256.4.10 Insanity: Instruction As To Consequences Of Insanity Verdict When Witness Or Prosecution Opens The Door
    256.4.11 Instruction on Consequences of Insanity: Strategic Considerations
    256.4.12 Insanity: Federal Circuit Model Instructions
    256.4.13 Insanity Defense: Availability To Juveniles
    256.4.14 Insanity: Whether Accused May Obtain Instruction On Both Insanity And Unconsciousness
    256.4.15 Insanity In Capital Case: Constitutional Right To Appointment Of Expert
    256.4.16 Propriety of Instruction on Consequences of Insanity

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    256.4.1    Insanity: Voir Dire Of Jurors As To Their Opinion Of Insanity Defense

    See FORECITE National™ 10.1.4 [Voir Dire Of Jurors As To Opinion Of Insanity Defense].

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RATIONALE: Without special instruction the jury may not understand the need to distinguish between legal and moral wrong in evaluating whether the defendant was insane.

POINTS AND AUTHORITIES: In People v. Stress (CA 1988) 205 CA3d 1259 [252 CR 913], the court observed that insanity "refers both to legal wrong and moral wrong." (People v. Stress 205 CA3d at 1272.) Hence, even though a person may know that the act is unlawful, that person is insane if incapable of understanding that the act is morally wrong. (People v. Skinner (CA 1985) 39 C3d 765, 783 [217 CR 685]; Stress, 205 CA3d at 1275.)

    In most instances, legal wrong is coextensive with moral wrong. (State v. Worlock (NJ 1990) 569 A2d 1314, 1322; see also Stress, supra, 205 CA3d at 1274; People v. Schmidt (NY 1915) 110 NE 945, 949; State v. Crenshaw (WA 1983) 659 P2d 488, 493-94; see also Model Penal Code and Commentaries § 4.01, comment at 169 ["Given the seriousness of most crimes for which the defense of insanity is interposed, a defendant who appreciates society's moral disapproval of his conduct will almost always assume that the conduct is criminal conduct, and vice versa"].) The clearest illustration of an act that is both a legal and moral wrong is murder. (See State v. Hamann (IA 1979) 285 NW2d 180, 183; see also State v. Worlock (NJ 1990) 569 A2d 1314, 1322.)

    "Occasionally, however, the distinction between moral and legal wrong may be critical. For example, if the defendant contends that he or she knowingly killed another in obedience to a command from God, a jury could find that the defendant was insane." (Schmidt, supra, 110 NE at 949; see also State v. Di Paolo (NJ 1961) 168 A2d 401, 408 ["The experts disagreed upon whether there was evidence of a psychosis to support the alleged delusion, but none suggested that if defendant in fact suffered an insane delusion that God commanded the deed, he nonetheless was legally sane if he simultaneously appreciated that the deed was contrary to law. Nor did the trial court so intimate"].) Although a "command from God" is the only generally-recognized exception, other delusion-based exceptions conceivably might arise; but see State v. Crenshaw (WA 1980) 617 P2d 1041, 1049 [while it would have been perhaps more thorough to have defined "wrong" in both its legal and moral sense, the court committed no error by restricting the definition of wrong to its legal sense].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

    The term wrong as used in this instruction refers both to legal wrong and moral wrong. If during the commission of a crime defendant was incapable of distinguishing either (1) legal right from wrong; or (2) moral right from wrong, [he] [she] is legally insane.

[Source: FORECITE National™.]

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RATIONALE: Unless mental illness is defined, the jury may not understand the scope of the term.

POINTS AND AUTHORITIES: In People v. Medina (CA 1990) 51 C3d 870, 900-02 [274 CR 849], the court addressed the defendant's concern that the standard insanity instruction may have limited the jury's consideration to a specific mental illness. In response to this argument, the court observed that while the standard instructions should suffice, the court could have been more explicit in responding to the jury's inquiry regarding the definition of mental illness. (Cf. Turner v. Commonwealth (KY 1993) 860 SW2d 772, 773 [jury should be instructed on statutory definition of mental illness where, on the evidence, jury may find that defendant is guilty but mentally ill]; Dean v. Commonwealth (KY 1989) 777 SW2d 900, 909 [same].) "For example, the court might have advised the jury that 'mental illness' includes all mental conditions which produce the requisite effects." (Medina, 51 C3d at 901.)

    Therefore, when appropriate a definition should be given.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

    The terms "mental disease" and "mental defect" include all mental conditions which produce the requisite effects.

[Source: Adapted from People v. Medina (CA 1990) 51 C3d 870, 901 [274 CR 849].]

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    256.4.4    Insanity: Involuntary Medication Of Defendant At Trial Violates Right To Present A Defense

PRACTICE NOTE: Riggins v. Nevada (1992) 504 US 127, 138 [112 SCt 1810; 118 LEd2d 479] concluded that involuntary drugging of a defendant relying on insanity defense violates right to present a defense and creates an "unacceptable risk of prejudice" which requires reversal.

    See also FORECITE National™ 18.6.6 [Medication Of Defendant At Trial].

    See also FORECITE National™ 256.4.5 [Insanity: Instruction Regarding Demeanor Altering Medication].

RESEARCH NOTE:  U.S. v. Weston (D.C. Cir. 2001) 255 F3d 873 reviewed in the Harvard Law Review, 115 HVLR 737, Dec. 2002 [analyzes the question of whether a trial court can order the involuntary administration of anti-psychotic drugs to a pre-trial detainee, diagnosed as schizophrenic and severely psychotic, in order to render the defendant competent to stand trial].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

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RATIONALE: For purposes of the guilt and penalty phases of a trial, the jury should not be permitted to consider the defendant's nontestimonial demeanor because such demeanor is not evidence. The same rationale applies to an insanity trial -- the defendant's testimonial demeanor, although potentially relevant on the issue of insanity, is simply not evidence. Therefore, a limiting instruction may be appropriate, especially when the defendant has been involuntarily medicated pursuant to Riggins v. Nevada (1992) 504 US 127 [112 SCt 1810; 118 LEd2d 479].

POINTS AND AUTHORITIES: Nontestimonial demeanor is not evidence and should not be considered by the jury. (See FORECITE National™ 18.6.1 [Jury May Not Consider The Defendant's Nontestimonial Appearance Or Demeanor While Not Testifying] and FORECITE National™ 24.2.2.2 [Jury Must Not Consider Demeanor Of Witness While Not Testifying].) This is especially true when the defendant has been involuntarily medicated. (See Riggins v. Nevada (1992) 504 US 127, 138 [112 SCt 1810; 118 LEd2d 479] [medication may have impacted defendant's appearance while testifying].) Hence, when requested, the defendant should be entitled to have the jury informed, at the beginning of trial and in the instructions to the jury, that the defendant is under the influence of medication, that the defendant's behavior in their presence is conditioned by the medication, and that the insanity asserted as the defendant's defense is to be evaluated as of the time the alleged criminal acts were committed.

    See also FORECITE National™ 18.6.5 [Consideration Of Defendant's Culture, In Evaluating Demeanor At Trial].

    See also FORECITE National™ 18.6.6 [Medication Of Defendant At Trial].

    See also FORECITE National™ 256.4.4 [Insanity: Involuntary Medication Of Defendant At Trial Violates Right To Present A Defense].

FEDERALIZATION: To federalize this request, click here.  [Constitutional Macro 7.3].

RESEARCH NOTES:  U.S. v. Weston (D.C. Cir. 2001) 255 F3d 873 reviewed in the Harvard Law Review, 115 HVLR 737, Dec. 2002 [analyzes the question of whether a trial court can order the involuntary administration of anti-psychotic drugs to a pre-trial detainee, diagnosed as schizophrenic and severely psychotic, in order to render the defendant competent to stand trial].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

    You are admonished to disregard the defendant's appearance, demeanor and conduct in the courtroom. You must not consider it for any purpose.

[Source: FORECITE National™.]

    You may only consider the defendant's demeanor, conduct or appearance while [he] [she] [is] [was] testifying and not at any other time.

    The defendant's demeanor, conduct, or appearance may only be considered for the purpose of assessing [his] [her] [credibility] [character] [remorse] [_______].

[Source: FORECITE National™.]

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RATIONALE: Without instruction to the contrary, the jury may improperly consider the fact that the defendant did not testify at the sanity or competency trial.

POINTS AND AUTHORITIES: See Dunner v. McLaughlin (WA 1984) 676 P2d 444, 452.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

    The defendant is not compelled to testify. Do not consider the fact that [he] [she] did not testify for any purpose. 

[See Dunner v. McLaughlin (WA 1984) 676 P2d 444, 452; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 200.14 [Mental Illness-Respondent’s Failure To Testify] p. 439 (West, 2nd ed. 1994).]

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RATIONALE: Because an insanity trial often focuses on expert opinion, the jury may be misled into believing that the determination of insanity should be resolved entirely upon the expert testimony.

POINTS AND AUTHORITIES: U.S. v. Medved (6th Cir. 1990) 905 F2d 935, 940-41 [jury properly instructed to consider all the evidence, not just the expert testimony, in determining if the defense of insanity had been established].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

    In making your decision [about insanity], you are not bound by [the testimony of] any of the witnesses. You should consider all the evidence, not just the opinions of the experts.

[See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.04 [Insanity] p. 133, ¶ 4 (1991).]

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RATIONALE: The jury may tend to give undue emphasis to expert testimony simply because of the expertise of the witness.

POINTS AND AUTHORITIES: Merely because a witness is qualified as a medical expert does not require the jury to accept the expert’s testimony as conclusive on the issue of insanity. (McLane v. Commonwealth (VA 1960) 116 SE2d 274, 281.)

    See also FORECITE National™ 29.2.8 [Expert Witness: Jury May Believe All, Part Or None Of The Expert Testimony].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.1].

See generally, FORECITE National™ 305.9.6 [Insanity].

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

*But see FORECITE National™ 29.2.2 [Deletion Of The Term "Expert" From Expert Witness Instruction].

[See McLane v. Commonwealth (VA 1960) 116 SE2d 274, 281; see also INSTRUCTIONS FOR VIRGINIA & WEST VIRGINIA 53.180, comment [Defenses--Diminished Responsibility: Expert Witnesses] (Lexis, 4th ed. 1996).]

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    256.4.9    Insanity: Court Appointed Expert

    See FORECITE National™ 29.2.9 [Court-Appointed Expert Should Be Treated The Same As Any Other].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.6 [Insanity].

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PRACTICE NOTE: Even in jurisdictions where it has been held that the court generally should not instruct the jury concerning the consequences of a not guilty by reason of insanity verdict (see e.g., Shannon v. U.S. (1994) 512 US 573 [114 SCt 2419; 129 LEd2d 459]), counsel should be alert for situations in which a witness or prosecutor opens the door for such an instruction. For example, if "a witness or prosecutor states in the presence of the jury that a particular defendant would 'go free' if found NGI, it may be necessary for the district court to intervene with an instruction to counter such a misstatement. The appropriate response, of course, will vary as is necessary to remedy the specific misstatement or error." (Shannon, 512 US at 587; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West 1999) § 3:8, p. 3-10.)

See generally, FORECITE National™ 305.9.6 [Insanity].

Federal Jury Instructions and the Consequences of a Successful Insanity Defense, 93 Colum. L. Rev. 1223 (1993).

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

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RATIONALE: Before returning an insanity verdict, especially where the verdict is labeled "not guilty by reason of insanity," the jury is likely to wonder whether the verdict will result in the immediate or early release of the defendant. On the other hand, a limiting instruction may unduly emphasize the prejudice.

POINTS AND AUTHORITIES: From the defense perspective the propriety of instruction on the consequences of an insanity verdict requires evaluation of complex considerations. A number of jurisdictions permit or require instruction on the consequences of an insanity verdict in recognition of the danger that without instruction the jury may believe that an insanity verdict will result in the immediate or early release of the defendant back into society. (See e.g., People v. Kelly (CA 1992) 1 C4th 495, 536-37 [3 CR2d 677]; Commonwealth v. Mutina (MA 1975) 323 NE2d 294, 302, fn 12 ["where the defense of insanity is fairly raised, the defendant, on his timely request, is entitled to an instruction regarding the consequences of a verdict of not guilty by reason of insanity"]; State v. Wall (OR 1986) 715 P2d 96, 98-99; State v. McWilliams (WV 1986) 352 SE2d 120, 127 [complete explanation of consequences required]; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.04 [Insanity] p. 134 commentary (1991) [discussing House Committee endorsement of procedure used in District of Columbia where the jury was instructed as to the effect of a verdict of not guilty by reason of insanity].)

    However, in Shannon v. United States (1994) 512 US 573, 587-88 [114 SCt 2419; 129 LEd2d 459] the court observed that the instruction could have the opposite effect and be adverse to the defendant. Similarly, in People v. Jones (CA 1997) 15 C4th 119, 178-79 [61 CR2d 386] the court held that trial counsel was not ineffective for failing to request CALJIC [CALIFORNIA JURY INSTRUCTIONS - CRIMINAL 4.01 [Effect Of Verdict Of Not Guilty By Reason Of Insanity] regarding the consequences of an insanity verdict. The court reasoned that the instruction aids the defendant by assuring the jury the defendant will not be released immediately upon a verdict of not guilty by reason of insanity, but a defendant reasonably could choose not to request the instruction for fear it might focus the attention of the jury upon the possibility of the defendant's release if he or she is restored to sanity.

    In sum, even in jurisdictions where a consequences instruction is available, counsel will have to carefully consider whether the instruction should be requested or waived.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.5].

See generally, FORECITE National™ 305.9.6 [Insanity].

Federal Jury Instructions and the Consequences of a Successful Insanity Defense, 93 Colum. L. Rev. 1223 (1993).

Miles, Nicole, Should The Jury Be Instructed As To The Consequences Of A Successful Not Guilty By Reason Of Insanity Verdict? A Comment On Shannon v. United States, 30 New Eng. L. Rev. 749-77, Spr. 1996.

Wharton’s Criminal Law (West, 15th ed. 1994) § 108, pp. 54-61.

Wharton’s Criminal Procedure (West, 15th ed. 1992) § 476. p. 75-80.

See also Benchbook For U.S. District Court Judges [1.12. 4 Mental Competency: Competency To Commit The Crime With Which The Defendant Is Charged].

See also Benchbook For U.S. District Court Judges [1.12.5 Mental Competency: Competency After Acquittal By Reason Of Insanity].

See FORECITE National™ 256.4.12 [Insanity: Federal Circuit Model Instructions].

    If the defendant is found not guilty by reason of insanity, the court will commit the defendant to a suitable facility until he/she is eligible for release under the law.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.02 [Insanity] Committee Comment, p. 93 (1999).]

See  CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.01 [Effect of Verdict of Not Guilty By Reason of Insanity] pp. 174-75 (West, 6th Ed. 1996).

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     256.4.12    Insanity: Federal Circuit Model Instructions 

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 5.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.34.

See also 6th Circuit Pattern Jury Instructions - Criminal 6.04.

See also 7th Circuit Federal Jury Instructions - Criminal 4.02.

See also 7th Circuit Federal Jury Instructions - Criminal 6.02.

See also 8th Circuit Model Jury Instructions - Criminal 9.03.

See also 9th Circuit Model Jury Instructions - Criminal 6.4.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 15.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 55.

    See also FORECITE National™ 256.5.6 [Involuntary Intoxication Short Of Insanity (Unawareness Of Acts Or Consequences) May Still Negate Specific Intent].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.6 [Insanity].

    256.4.14    Insanity: Whether Accused May Obtain Instruction On Both Insanity And Unconsciousness

PRACTICE NOTE:  See Mendenhall v. State (TX 2002) 77 SW3d 815 [insanity defense is not available under Texas law to a defendant who claims to have been unconscious or semiconscious at the time of the alleged offense].

RESEARCH NOTES:

See generally, FORECITE National™ 305.9.6 [Insanity].

 VOLUME 11 - CHAPTER 256    

PRACTICE NOTE: Under Ake v. Oklahoma (85) 470 US 68 [84 LEd2d 53;105 SCt 1087] , a defendant is entitled to the assistance of a mental health professional upon a showing that sanity at the time of the crime will be a significant issue at trial. (See Schultz v. Page (7th Cir. 2002) 313 F3d 1010.)

See generally, FORECITE National™ 305.9.6 [Insanity].

    256.4.16     Propriety of Instruction on Consequences of Insanity

PRACTICE NOTE:  Shannon v. United States (1994) 512 US 573 [114 SCt 2419; 129 LEd2d 459] held that the Insanity Defense Reform Act "does not require an instruction concerning the consequences of [a not guilty by reason of insanity] verdict, and that such an instruction is not to be given as a matter of general practice." (Shannon, 512 US at 587.) The Court rejected the legislative endorsement of Lyles v. United States, 254 F2d 725 (D.C. Cir. 1957) because there is no language in the statute addressing the issue, and so, as a result, the language in the Senate Report "does not purport to explain or interpret any provision of the [Act]." (Shannon, at 583.) "It should be noted, however, that the Shannon Court did not preclude instructing the jury on this issue, recognizing that an instruction might be necessary ‘under certain limited circumstances’ such as where it was argued to the jury ‘that a particular defendant would "go free"’ if found not guilty by reason of insanity. [Shannon, 512 US at 587.]" (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-10, Comment, p. 8-69.)

    See also FORECITE National™ 256.4.11 [Instruction on Consequences of Insanity: Strategic Considerations].