INSANITY

INSANITY The defendant has raised the affirmative defense of physical or mental disease, disorder or defect excluding criminal responsibility. Before you may consider this affirmative defense, you must first determine whether the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt. If you unanimously find that the prosecution has not proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must find the defendant not guilty of that offense(s) without considering the affirmative defense. If you unanimously find that the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must consider the affirmative defense. It is an affirmative defense to (specify in the disjunctive charge(s) and any instructed included offense(s)) that, at the time of the offense, the defendant was not criminally responsible for his/her conduct. The defendant is not criminally responsible for his/her conduct if, at the time of the charged offense(s) and as a result of a physical or mental disease, disorder or defect, the defendant lacked substantial capacity either to appreciate the wrongfulness of his/her conduct or to conform his/her conduct to the requirements of the law. A person “lacks substantial capacity” either to appreciate the wrongfulness of his/her conduct or to conform his/her conduct to the requirements of the law if his/her capacity to do so has been extremely limited by physical or mental disease, disorder or defect. The phrase “lack of substantial capacity” does not mean a total lack of capacity. It means capacity which has been impaired to such a degree that only an extremely limited amount remains. [The term “physical or mental disease, disorder or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.] The affirmative defense of physical or mental disease, disorder or defect excluding criminal responsibility has two elements. These two elements are: 1. That at the time of the charged offense, the defendant was suffering from a physical or mental disease, disorder, or defect; and 2. That as a result of such physical or mental disease, disorder, or defect, he/she lacked substantial capacity either to appreciate the wrongfulness of his/her conduct or to conform his/her conduct to the requirements of the law. The defendant must prove an affirmative defense by a preponderance of the evidence. This means that the defendant must prove that it is more likely than not, or more probable than not, that each element existed. In determining whether the defendant has proven the affirmative defense by a preponderance of the evidence, you must consider all of the evidence that has been presented to you regardless of who presented it. If you unanimously find that the defendant has proven both elements of the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of (specify in the disjunctive charge(s) and any instructed included offense(s)). If you unanimously find that the defendant has not proven both elements of the affirmative defense by a preponderance of the evidence, then you must find the defendant guilty of (specify in the disjunctive charge(s) and any instructed included offense(s)).* If you are unable to reach a unanimous agreement as to whether the affirmative defense has been proved or not been proved, then a verdict may not be returned on (specify in the disjunctive charge(s) and any instructed included offense(s)). [If the defendant is acquitted on the ground of physical or mental disease, disorder or defect excluding responsibility, the court shall make an order as follows: (a) The court shall order him/her committed to the custody of the Director of Health to be placed in an appropriate institution for custody, care, and treatment if the court finds that he/she presents a risk of danger to himself/herself or others and that he/she is not a proper subject for conditional release; or (b) The court shall order him/her to be released on such conditions as the court deems necessary if the court finds that he/she is affected by physical or mental disease, disorder or defect and that he/she presents a danger to himself/herself or others, but that he/she can be controlled adequately and given proper care, supervision, and treatment if he/she is released on condition; or (c) The court shall order him/her discharged from custody if the court finds that he/she is no longer affected by physical or mental disease, disorder, or defect, or if so affected, that he/she no longer presents a danger to himself/herself or others and is not in need of care, supervision, or treatment. This information on the alternatives available to the court is given only for the purpose of informing you of the consequences to the defendant that may result from an acquittal on the ground of physical or mental disease, disorder or defect excluding responsibilities. These consequences must not in any way influence your decision.] *Modification of this sentence is required if any defense in addition to insanity is submitted to the jury. Commentary HRS § 704-400 provides, "[a] person is not responsible . . . for conduct if at the time of the conduct as a result of physical or mental disease, disorder or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." HRS § 704-402(1) (1982) makes insanity "an affirmative defense." Until 1982, insanity was an ordinary defense in Hawai`i, and pursuant to HRS § 702-205, the prosecution had to disprove insanity beyond a reasonable doubt. See State v. Rodrigues, 67 Haw. 70, 72, 679 P.2d 615, 617 (1984) ("then the State has the burden of proving a defendant’s sanity beyond a reasonable doubt"); State v. Nuetzel, 61 Haw. 531, 606 P.2d 920 (1980) ("appellant’s raising the defense of insanity under HRS § 704- 400(1) required the prosecution to prove the additional element of appellant’s sanity"); State v. Valentine, 1 Haw.App. 1, 2, 612 P.2d 117, 118 (1980) ("the State had the burden of proving appellant’s sanity beyond a reasonable doubt"); State v. Moeller, 50 Haw. 110, 121, 433 P.2d 136, 143 (1967) ("the State is required to establish the sanity of the defendant beyond a reasonable doubt"). In 1982, insanity became an affirmative defense. See State v. Nizam, 7 Haw.App. 402, 407 n.4, 771 P.2d 899, 904 n.4 (1989) ("Section 704-402 (1985) delineates the affirmative defense of physical or mental disease, disorder or defect excluding responsibility"). A defendant must now prove mental incapacity by a preponderance of the evidence. See HRS § 701-115(2)(b). In defining legal insanity to the jury, trial courts are not restricted to merely repeating the terms of the insanity statute. Nuetzel, 61 Haw. 531, 606 P.2d 920. Instruction on legal insanity should be flexible, with wide discretion vested in the trial court to clarify the statutory definition. Id. In Nuetzel, the court upheld an insanity instruction defining "lack of substantial capacity" as "capacity which has been impaired to such a degree that only an extremely limited amount remains." Id. at 550-51, 606 P.2d at 930. But an instruction defining "insanity" as "such a diseased and deranged condition of the mental faculties of a person as to render him incapable of knowing the nature and quality of the act he is committing and incapable of knowing the difference between right and wrong" was prejudicial error. Moeller, 50 Haw. at 113, 433 P.2d at 139 (emphasis in original). HRS § 704-402(2) provides that when an insanity defense is submitted to a jury, "the court shall, if requested by the defendant, instruct the jury as to the consequences to the defendant of an acquittal" on grounds of insanity. "The purpose of allowing such an instruction is purely informational" because "there is the possibility that they will fear that such an acquittal will necessarily lead to the defendant's release." State v. Amorin, 58 Haw. 623, 627-28, 574 P.2d 895, 898 (1978). The jury, however, "should not be influenced by the extraneous consideration of the consequence of a finding of insanity wholly unconnected and apart from the evidence." Id. at 628, 574 P.2d at 898-99. Prior to the 1972 enactment of the Hawai`i Penal Code, the trial court was not required to instruct the jury as to the consequences of a verdict of not guilty by reason of insanity, whether the defendant requested it or not. Moeller, 50 Haw. 110, 433 P.2d 136.