Insanity Defense and Post-Trial Disposition Summary

The state of mind of a person who commits a criminal act Is material (with a few strict liability exceptions) to the question of whether a crime, in fact, has been committed. As any other element of a criminal offense, the prosecution must prove that state of mind beyond a reasonable doubt. The Issue of state of mind and who must prove it is more complicated than it might seem in the first instance. The issue of "mental illness" or "insanity" intrudes upon this understood and constitutionally underscored set of rules in an extraordinary way.

Since the famous M'Naghten Case, 8 Eng. Rep. 718 (1843), persons who are mentally ill or "insane” have had a defense against conviction for a crime if the mental condition of the defendant precluded understanding the criminal character of acts committed. The so-called "insanity defense" complicates the proof issue, because raising a defense and proving it falls, generally, upon the defense, not the prosecution.

Over time, the interplay between 'these two issues -state of mind and the prosecutor's burden, and the insanity defense and the defendant's burden -has produced much confusion and debate. It is the intent of the National Conference of Commissioners on Uniform State Laws (ULC) that the Model Insanity Defense and Post-Trial Disposition Act resolve the confusion and debate. The solution lies in the development of clear, definitive legislation.

The Act is divided into ten articles: Article I, Scope of Act; Article II, Defense of Absence of Criminal Responsibility; Article III, Authorization for Experts and Examination; Article IV, Conduct of Examination Ordered at Request of Prosecution; Article V, Reports and Documents Exchanged Prior to Trial: Article VI, Use of Information Obtained from Examination Ordered at Request of Prosecution: Article VII, Trial: Article VIII , Post-Trial Motion and Appeal: Article IX, Disposition of Persons Found Not Responsible by Reason of Mental Illness or Defect; and Article X, General Provisions. A glance at these titles indicates that the establishment of the defense, itself, is a small part of the total Act. Most of the Act deals with procedures for the orderly determination of any defense raised and with disposition of any person found not criminally responsible because of mental illness or defect.

Section 201 is the crux section. The question is "criminal responsibility" at the time of the crime charged. There is no criminal responsibility if the person charged with the crime "was substantially unable to appreciate the wrongfulness of the conduct." This is a so-called "cognitive" test. It is not a test of mens rea or state of mind as an element of a crime. It deals with another order of concern for mental condition, the question of the defendant's capacity to understand the wrongfulness of the conduct.

As to the closely related questions of proof, Section 702 is the pivotal provision. The defendant has the burden of raising the defense of absence of criminal responsibility. But the prosecution retains the burden "of proving criminal responsibility of the defendant beyond a reasonable doubt." The prosecution's burden remains the traditional and constitutional burden.

The clarification of the issues as presented to the jury is the result of the "cognitive" test coupled with the burden of proof on the prosecution. The issue before the jury confronted with the defense is only the capacity of the defendant to understand the wrongfulness of the act. The issue of the defendant's "state of mind" remains a positive element of any crime for which it is material and the responsibility of the prosecution. Further, the jury does not have to balance complicated instructions about who must prove what. It is always the burden of the prosecution to prove beyond a reasonable doubt that a crime has been committed. The defendant need only raise a reasonable doubt as to any element of a crime charged. The "defense of absence of criminal responsibility" does not change this pattern, and the jury can concentrate on the issue of reasonable doubt as illuminated by any evi­dence presented.

Almost as critical an issue as the relationship between the nature of the defense and the burden of proof is the evidence presented. Expert testimony based upon examinations of the defendant is the evidence the jury will hear. Therefore, the Act provides for selecting and authorizing experts. The defendant must notify the prosecutor of any intent to raise the defense of absence of criminal responsibility. Both prosecution and defense are entitled to expert examination of the defendant, and to have each other's reports. If the defendant cannot afford experts, the court must provide one. The defendant must, also, notify the prosecution if there is an intent to use expert opinion to show that the defendant lacked the requisite "state of mind."          

An important part of this Act is Article IX, the disposition article. Absolving a defendant of criminal responsibility does not, necessarily, settle the issue of disposition. If the individual suffers from mental illness that continues to pose a threat to others, disposition to a facility for treatment should be available to the court. Any person not criminally responsible remains in the jurisdiction of the court for a period of time equal to the maximum sentence that person might have received if found guilty. The court has the power to order commitment to a suitable mental health facility. Any commitment is subject to automatic review by the court by hearing, initially within 90 days of the initial order for commitment. At the hearing, the court shall set a time for further review of the commitment. In addition, there are provisions for modification of commitment orders and for conditional orders. The court has a number of available options that will permit it to tailor an order for each specific situation.

This Act is a Model Act, not a Uniform Act. The ULC recognizes that uniformity is not necessary between the states on this issue. Each state must make its own policy determinations on the basic issue of "insanity defense." But this Act presents a clear, coherent structure addressing all the key issues. The Model Act should assist policy-makers, greatly, and is offered in this spirit.