INSANITY DEFENSE 

Insanity vs. Incompetence to Proceed

While an accused person may be both insane and incompetent, there are important legal distinctions between them. First, insanity looks to the defendant's mental state at the time the offense was allegedly committed, whereas incompetence looks to the defendant's mental state presently. A person who was purportedly insane at the time of the offense may be tried as long as the person is competent to proceed. If the person is incompetent, he or she shall not be proceeded against while incompetent. Insanity is an an affirmative defense, incompetence to proceed is not.

Where there is an issue as to the defendant's competence to proceed, whether it is raised by the state or the defense, the court will appoint an expert to conduct an evaluation and prepare a report outlining his or her findings. In considering the issue of competence to proceed, the expert will consider the defendant's capacity to: (1) appreciate the charges or allegations against the defendant; (2) appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant; (3) understand the adversary nature of the legal process; (4) disclose to counsel facts pertinent to the proceedings at issue; (4) manifest appropriate courtroom behavior; and (5) testify relevantly. If the defendant is ultimately found to be competent, the case will proceed accordingly. If not, the defendant will be ordered to complete treatment, as appropriate, until the defendant becomes competent to proceed. If competency has not been restored after certain specified periods of time, the court will enter an order of dismissal without prejudice. Without prejudice means that the state can re-initiate prosecution should the defendant be restored to competency at some future point.

Applicable Florida Statute

The insanity defense in Florida is codified in § 775.027 of the Florida statutes and provides as follows:

(1) Affirmative defense. All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:

(a) the defendant had a mental infirmity, disease, or defect; and

(b) because of this condition, the defendant: 1. Did know what what he or she was doing or its consequences; or 2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know what he or she was doing was wrong. Mental infirmity, disease or defect does not constitute a defense of insanity except as provided in this subsection.

(2) Burden of proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Florida Rule of Criminal Procedure 3.216

Rule 3.216 governs the procedures for raising insanity as an affirmative defense, the applicable filing deadlines, and other matters including the the appointment of experts and presentation of evidence:

(a) Expert to Aid Defense Counsel. When in any criminal case a defendant is adjudged to be indigent or partially indigent, and is not represented by the public defender or regional counsel, and counsel has reason to believe that the defendant may be incompetent to proceed or that the defendant may have been insane at the time of the offense or probation or community control violation, counsel may so inform the court who shall appoint 1 expert to examine the defendant in order to assist counsel in the preparation of the defense. The expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the attorney client privilege.

(b) Notice of Intent to Rely on Insanity Defense. When in any criminal case it shall be the intention of the defendant to rely on the defense of insanity either at trial or probation or community control violation hearing, no evidence offered by the defendant for the purpose of establishing that defense shall be admitted in the case unless unless advance notice in writing of the defense shall have been given by the defendant as hereinafter provided.

(c) Time for Filing Notice. The defendant shall give notice of intent to rely on the defense of insanity no later than 15 days after the arraignment or the filing of a written plea of not guilty in the case when the defense of insanity is to be relied on at trial or no later than 15 days after being brought before the appropriate court to answer to the allegations in a violation of probation or community control proceeding. If counsel for the defendant shall have reasonable grounds to believe that the defendant may be incompetent to proceed, the notice shall be given at the same time that the motion for examination into the defendant's competence is filed. The notice shall contain a statement of particulars showing the nature of the insanity the defendant expects to prove and the names and addresses of the witnesses by whom the defendant expects to show insanity, insofar as possible.

(d) Court-Ordered Examinations. On the filing of such notice and on motion of the state, the court shall order the defendant to be examined by the state's mental health expert(s) as to the sanity or insanity of the defendant at the time of the commission of the alleged offense or probation or community control violation. Attorneys for the state and for the defendant may be present at the examination.

(e) Time for filing Notice of Intent to Rely on a Mental Health Defense Other than Insanity. The defendant shall give notice of intent to rely on any mental health defense other than insanity as soon as a good faith determination has been made to utilize the defense but in no event later than 30 days prior to trial. The notice shall contain a statement of particulars showing the nature of the defense the defendant expects to prove and the names and addresses of the witnesses by whom the defendant expects to prove the defense, insofar as possible. If expert testimony will be presented, the notice shall indicate whether the expert has examined the defendant.

(f) Court-Ordered Experts for Other Mental Health Defenses. If the notice to rely on any mental heath defense other than insanity indicates the defendant will rely on the testimony of an expert who has examined the defendant, the court shall upon motion of the state order the defendant to be examined by one qualified expert for the state as to the mental health defense raised by the defendant. Attorneys for the state and defendant may be present at the examination. When the defendant relies on the testimony of an expert who has not examined the defendant, the state shall not be entitled to a compulsory examination of the defendant.

(g) Waiver of time to File. On good cause shown for the omission of the notice of intent to rely on the defense of insanity, or any mental health defense, the court may in its discretion grant the defendant 10 days to comply with the notice requirement. If leave is granted and the defendant files the notice, the defendant is deemed unavailable to proceed. If the trial has already commenced, the court, only on motion of the defendant, may declare a mistrial in order to permit the defendant to raise the defense of insanity pursuant to this rule. Any motion for mistrial shall constitute a waiver of the defendant's right to any claim of former jeopardy arising from the uncompleted trial.

(h) Evaluating the Defendant after Pretrial Release. If the defendant has been released on bail or other release conditions, the court may order the defendant to appear at a designated place for evaluation at a specific time as a condition of the release provision. If the court determines that the defendant will not submit to the evaluation provided for herein or that the defendant is not likely to appear foe the scheduled evaluation, the court may order the defendant taken into custody until the evaluation is completed. A motion made for evolution under this subdivision shall not otherwise affect the defendant's right to pre-trial release.

(i) Evidence. Any experts appointed by the court may be summoned to testify at the trial and shall be deemed court witnesses whether called by the court or either party. Other evidence regarding the defendant's insanity or mental condition may be introduced by either party. At trial, in its instructions to the jury, the court shall include an instruction on the consequences of a verdict of not guilty by reason of insanity.

Applicable Jury Instruction

Florida standard jury instruction 3.6(a) provides as follows:

An issue in this case is whether the defendant was insane when the crime was allegedly committed. A person is considered to be insane when:

1. He or she has a mental infirmity, disease, or defect;
2. Because of this condition: a. He or she did not know what he or she was doing or its consequences or b.although he or she knew what what he or she was doing and its consequences, he or she did not know it was wrong.

A defendant who believed that what he or she was doing was morally right is not insane if the defendant knew that what he or she was doing violated societal standards or was against the law.

All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue.

In determining the issue of insanity, you may consider the testimony of expert and non expert witnesses. The question you must answer is not whether the defendant is insane today, or has ever been insane, but whether instead the defendant was insane at the time the crime was allegedly committed.

Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person is overcome by passion or temper.

If the evidence establishes that the defendant had been adjudged insane by a court, and has not been restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise.

If you find that the defendant committed the crime but you find by clear and convincing evidence that the defendant was insane, then you should find him or her not guilty by reason of insanity.

If your verdict is that the defendant is not guilty by reason of insanity, that does not necessarily mean that he or she will be released from custody. I must conduct further proceedings to determine if the defendant should be committed to a mental hospital, or given other outpatient treatment, or released.

The Bottom Line

Establishing insanity can be a difficult task. First, and as set forth above, there is a presumption of sanity as to all accused persons. Second, the clear and convincing standard is a much higher burden of proof than the preponderance of the evidence standard, which applies when other types of affirmative defenses are raised. However, under the right circumstances, the insanity defense can be raised and ligated very effectively.