HOUSE BILL REPORT

HB 1432

BYRepresentatives Crane, Butterfield, P. King, Patrick, Cantwell, Basich, Cooper, Baugher, Jones, Todd, Zellinsky, Padden, Hargrove, Appelwick, Peery, Meyers, Kremen, Dorn, Betrozoff, Holland, McLean, May, Fuhrman, B. Williams, Brough, Hankins, Jesernig, Silver, Moyer, Rasmussen and Winsley

Revising criminal mental defenses.

House Committe on Judiciary

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (12)

      Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Brough, Hargrove, P. King, Lewis, Meyers, Moyer, Padden, Patrick, Schmidt and Scott.

Minority Report:  Do not pass.  (5)

      Signed by Representatives Appelwick, Belcher, Locke, Wang and Wineberry.

House Staff:Bill Perry (786-7123)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 4, 1988

BACKGROUND:

Conviction for a crime generally requires that the prosecution prove beyond a reasonable doubt that the defendant committed an illegal act and possessed the necessary state of mind at the time of the act.  Various crimes require differing states of mind.  For example, first degree murder requires that the defendant act with "premeditated intent", whereas second degree manslaughter requires only that the defendant act with "criminal negligence".

The insanity defense is statutorily prescribed in this state and allows a defendant to attempt to prove by a preponderance of the evidence that because of a "mental disease or defect", he or she was either "unable to perceive the nature and quality of the act with which he is charged", or "unable to tell right from wrong with reference to the act".  The consequence of a successful insanity defense is that the defendant is found not guilty of the crime.  Such a defendant may be released completely, given a conditional release, or involuntarily hospitalized for up to the maximum length of the sentence imposable had he or she been convicted.  Persons given involuntary hospitalization or treatment may periodically have their cases reviewed for the possibility of conditional or absolute release.  The standard for determining the disposition of such a defendant's case is whether he or she is a "substantial danger to other persons" or presents a "substantial likelihood of committing felonious acts jeopardizing public safety or security."

Current statutes contain procedural rules for the handling of an insanity defense. Notice of the intention to present such a defense must be given to the prosecution by the defendant within 10 days of arraignment, or later if good cause is shown.  A defendant may not be compelled to answer questions during an examination related to the defense if he or she believes answering will be incriminating.

Current case law does not allow a court to impose an insanity defense upon an unwilling defendant.

A defendant may move for an acquittal on the grounds of insanity.  If the court determines the defendant was insane, the defendant cannot later deny that he committed the act charged in the crime.

The defense of "diminished capacity" may also be used in criminal trials.  The defense of diminished capacity applies only to crimes that require a specific intent on the part of the defendant.  Specific intent crimes are those that require proof beyond a reasonable doubt that the defendant engaged in some mental activity that is an element of the crime. This defense is not provided for in statute, but has been developed by case law.  The defense asserts that because of some mental disease or defect the defendant was unable to form the requisite intent for the particular crime charged.  Use of the defense of diminished capacity does not change the prosecution's burden of proving beyond a reasonable doubt all elements of the crime charged, including the requisite intent.  The consequence of a successful diminished capacity defense is acquittal, and there is no provision other than the civil commitment laws for requiring the acquitted defendant to be hospitalized.  However, unlike a criminally insane person, who cannot be convicted of any crime, a person with diminished capacity may still be subject to prosecution and conviction for a lesser offense than the one originally charged if the lesser offense does not require specific intent.  For instance, a person acquitted of intentional murder because he or she was unable to form intent, might nonetheless still be found guilty of manslaughter.

SUMMARY:

SUBSTITUTE BILL:  The "insanity" defense is renamed the "criminal insanity" defense, and the "diminished capacity" defense is renamed the "criminal mental deficiency" defense.  Changes are made with respect to the definition of, and procedures for the use of, the criminal insanity defense, and statutory provisions are provided for the use of the criminal mental deficiency defense.

"Criminal mental deficiency" is defined as a mental disease or defect that prevents a defendant from having the specific state of mind of "premeditation", "intent", "knowledge" or "malice".

The court, at the request of the prosecutor, may permit the introduction of testimony on the insanity or mental deficiency defense against the wishes of the defendant.

No less than thirty days before trial, a defendant who intends to use the defense of criminal insanity or mental deficiency must give the prosecutor the following: (1) a report of any examination of the defendant's mental condition by an expert, including a description of the nature of the examination, a diagnosis, an opinion as to competency, an opinion as to sanity at the time of the crime charged, an opinion as to the capacity of the defendant to form a state of mind that is an element of the crime charged, and an opinion as to the defendant's dangerousness; (2) the facts and data underlying the expert's testimony; and (3) the names and addresses of persons whom the defendant intends to call as witnesses, together with any written or recorded statements and the substance of any oral statements of the witnesses.

The provision allowing the defendant to move for acquittal on the grounds of insanity is replaced.  If both the prosecutor and defendant move for a judgment of criminal insanity or deficiency, the court may grant the judgment. However, both parties must stipulate that the defendant committed the act charged and that the defendant was insane or mentally deficient.  The defendant may not later contest his or her detention on the grounds that he or she did not commit the crime.  If the prosecution does not join in the motion, or if the motion is denied, the question of the defendant's insanity or deficiency may be submitted to the trier of fact at trial on the criminal charge.

No expert witness may testify at trial as to whether or not the defendant had the mental state necessary to constitute an element of the crime charged.

A procedure is provided for the dispositions of cases in which a defendant has successfully presented an insanity or mental deficiency defense in felony cases. If the defendant is found by a preponderance of the evidence not to be dangerous to others or likely to jeopardize public safety, then he or she is to be given a final discharge.  If the defendant is not so found, then he or she will be sent to a state hospital unless by a preponderance of the evidence the court finds that it is in the "best interest of the community" that the defendant be placed on conditional release in less restrictive treatment. In misdemeanor cases, a successful insanity or deficiency defense will cause the court either to release the defendant or have him or her held long enough for evaluation under the civil commitment laws.

A sequence is provided for handling cases in which the same defendant has been tried for more than one crime and convicted of at least one and found insane or deficient on at least one.  First a determination is to be made under the Sentencing Reform Act as to whether sentences and treatment periods should run consecutively.  Then, any incarceration is to be served before any inpatient treatment.  The court is to determine the order in which periods of conditional release and community supervision are to be served.

SUBSTITUTE BILL COMPARED TO ORIGINAL: The original bill would have defined criminal insanity and mental deficiency expressly to exclude the defenses of "irresistible impulse" and voluntary intoxication.  It also would have removed the maximum limit on involuntary commitment of the criminally insane or deficient. The original bill would have prevented the defendant's experts from testifying about the defendant's statements unless the defendant had also responded to the prosecution's expert's questions about the same matters, and any refusal to answer prosecution questions could have been introduced at trial on any issue of mental condition raised by the defendant.  The original bill also would have changed the standard for determining the dangerousness of a criminally insane or mentally deficient person.

Fiscal Note:      Not Requested.

Effective Date:The bill takes effect on May 1, 1989.

House Committee ‑ Testified For:    John Ladenberg, Pierce County Prosecuting Attorney; Ron Clark, King County Prosecuting Attorney's Office; Gary Tabor, Thurston County Prosecutor's Office; Larry McKeeman, Snohomish County Prosecutor's Office.

House Committee - Testified Against:      John Henry Browne, criminal defense attorney; Scott Reiman, Seattle-King County Public Defenders Assoc.; J.M.B. Crawford, WA Assoc of Criminal Defense Lawyers; Bob Stalker, Evergreen Legal Services.

House Committee - Testimony For:    The bill provides a post-trial mechanism for dealing with the so-called diminished capacity defense. It increases the chances of discovering the truth prior to trial.  It will help reduce public outrage and restore confidence in the criminal justice system.

House Committee - Testimony Against:      The current law is working well.  There are very few of these defenses even tried, and of those, almost none are successful.  The insanity defense has developed over many years and should not be changed without a great deal of study and thought.