By Zack Wavrusa
Assistant County and District Attorney in Rusk County
If you do this job long enough, you will inevitably have a brush with insanity.
The long hours and high-stress caseload get to everybody. But because self-care isn’t my area of expertise, I will just tell you about how the insanity defense works in Texas.
The insanity defense is not as common, nor is it as easy to execute as it appears on television and in books. That fact itself is not surprising, but the result is that some prosecutors, especially those who have never dealt with the defense directly, might have major misconceptions about how it works. Eventually, you will get a case where insanity, at least initially, is a real possibility. None of us can predict when that case will arise, so all of us need to have at least a basic understanding of the defense: what it is, how it is raised, how it is proven, and what happens after it is proven.
What insanity is not
Before anyone can really understand the insanity defense, we must first be able to distinguish the defense from incompetency to stand trial. This may seem like an obvious distinction, but crime victims, court clerks, and local journalists might not immediately understand it. For that reason, it’s important for prosecutors to be able to clearly and simply articulate the differences between the two.
First and foremost, know that competency refers to a defendant’s ability to stand trial. It’s governed by Chapter 46B of the Code of Criminal Procedure and applies to misdemeanors and felonies where a person is facing incarceration. A person is incompetent and therefore unable to stand trial when he doesn’t have the ability to consult with a lawyer with a degree of rational understanding or doesn’t have a rational and factual understanding of the criminal proceedings against him. Either party or the court can suggest, by motion, that the defendant is incompetent to stand trial.
Once a suggestion of incompetency has been made, the court will conduct an informal inquiry into the issue of incompetency. This informal inquiry may consist of as little as defense counsel’s suggestion that the defendant is incompetent. The next step is a formal incompetency evaluation conducted by a mental health expert. Once the evaluation is complete, the parties can choose to accept the expert’s findings or proceed to a competency trial. If, through agreement or trial, the defendant is found to be incompetent to stand trial, the court has a few options but, at least in serious cases, the defendant will be placed in an appropriate mental health facility. At this point, the defendant’s competency to stand trial will be successfully restored or the health facility will determine that restoration is not possible. If the defendant is restored, the case can proceed to plea bargain or trial. If he cannot be restored, the State can pursue an involuntary civil commitment.
What insanity is
Some of you read the subheading above and said to yourselves, “The definition of insanity is doing the same thing over and over and expecting different results.” A criminally insane person might do that, but it is not the legal definition of insanity.
Texas law, like that of all American jurisdictions, presumes that a criminal defendant is sane and that he intends the natural consequences of his acts. Texas law, like that of many American jurisdictions, excuses a defendant from criminal responsibility if he proves, by a preponderance of the evidence, the affirmative defense of insanity. This defense excuses the person from criminal responsibility even though the State has proven every element of the offense, including the mens rea, beyond a reasonable doubt. The test for determining insanity is whether, at the time of the conduct charged, the defendant, as a result of a severe mental disease or defect, did not know that his conduct was wrong. Under Texas law, “wrong” in this context means “illegal.”
The insanity defense isn’t the kind of thing that gets sprung on you, nor is the process one that moves particularly quickly. Despite that, a possible insanity defense is something prosecutors should try to identify early and begin preparing for. How do you identify the cases where the insanity defense might be raised?
Raising the insanity defense
When it comes to the insanity defense, there is no laying behind the log for the defense. There is no reserving opening statement, offering unexpected evidence during the defense’s case in chief, and hoping to put prosecutors on our heels in rebuttal. If the defense intends to raise the insanity defense, the attorney must file a notice of intent to offer that evidence at least 20 days before the case is set for trial. If the court sets the case for a pre-trial hearing, the defendant must give notice at that hearing. If the defense fails to provide this notice, evidence on the issue of insanity is inadmissible unless the court finds that there is good cause for the failure.
The examination and report
After the defense files notice to present evidence on the issue of insanity, either party can request the appointment of one or more experts to examine the defendant and testify at any trial or hearing on the issue. Once an expert is appointed, be prepared to forward copies of the offense report, witness statements, the defendant’s statement, etc., to the expert prior to the examination.
Both psychiatrists and psychologists can be appointed as experts by the court under Chapter 46C. Psychiatrists are medical doctors who specialize in psychiatry; they use talk therapy and medication with their clients. Psychologists still have advanced degrees, usually PhDs, but they most commonly use therapy only to treat their clients’ mental health conditions.
Defendants will not always want to cooperate with whatever expert is appointed by the court. If this is the case, the judge can order him to submit to the examination even if he is free on bail. If need be, the court can order a defendant on bail to be confined for up to 21 days for the examination to be completed.
The court-appointed expert must return a written report to the court within 30 days of when the examination was ordered. After the court receives the report, it should provide copies to the defense and the State. The report should detail the procedures used in the examination as well as the examiner’s observations and findings pertaining to the insanity defense.
There will be instances where both parties agree that the court should enter a verdict of not guilty by reason of insanity (NGRI). The decision on whether to agree will depend on 1) the specific facts of the case, 2) the apparent quality or lack of quality of the psychiatrist’s or psychologist’s report, 3) office policy, or, more likely 4) some combination of all of the above. In deciding whether to agree, ask yourself questions such as:
• “Is it the best use of the State’s time and resources to contest the issue of insanity before a jury when the defendant is charged with misdemeanor criminal trespass?” Does that answer change if the charged offense is injury to a child? Sex assault? Possession of a controlled substance?
• Can the decision to agree to a judgment of NGRI be justified to a crime victim when the psychologist or psychiatrist appointed by the court spent little time actually testing the defendant?
• Does your office have a policy that obligates a prosecutor to agree to NGRI when the court-appointed expert reaches that conclusion? Is there an internal office process to request the hiring of a new expert to conduct his or her own evaluation?
Preparing for expert witnesses
Where the State and defense do not agree on an NGRI verdict, the case will go before a jury. Expert witnesses are not required to get the issue of sanity before a jury. They are, nonetheless, a reliable fixture in trials where the defendant’s sanity at the time of the offense is at issue. Like all witnesses, it is critical to prepare for both the direct examination of the State’s expert and the cross-examination of the defense’s expert.
The State’s expert. Do not call the State’s expert to testify without speaking to her extensively beforehand. I don’t care how many times you have read her report—pick up the phone and call her. If it’s an option, drive to her office and talk face to face. Pre-trial preparation with the expert is critical. It doesn’t matter how many times you have read the relevant portions of the DSM-5 or how well you think you understand the work of a forensic psychiatrist or psychologist. You are (probably) not licensed in psychiatry or psychology, and these mental health sciences are not taught in law school or tested on the bar exam. The material is complicated and regularly evolving.
At trial, it will be the prosecution’s goal for the expert to clearly communicate her opinion that the defendant was not insane under Texas law at the time the offense was committed. Set aside any prior experience you have with the subject and ask the expert to explain her opinion in terms so simple that even the least sophisticated jurors will understand it.
There will be a lot of ground to cover with the expert at trial. Talk about every bit of it during witness preparation. For example, discuss all the case materials she went over before even interviewing the defendant. Then you can let the jury know about all the offense reports, witness statements, school records, and medical records that the expert reviewed. The more well-versed the expert is regarding the particulars of the case, the more weight her testimony will carry with the jury (let’s hope).
Part of the expert’s examination of the defendant will have been a battery of tests to determine whether the defendant suffers from a severe mental disease or defect. Make sure that you understand and elicit testimony about how each of those tests work, how long they have been accepted in the profession, and what measures are in place to identify a defendant who might be malingering or exaggerating his symptoms.
It’s very possible, maybe even likely, that the expert will diagnose the defendant with some mental ailment. Have her show you where in the DSM-5 the disease is mentioned. Make sure you understand how the disease presents itself and what symptoms the people who suffer from it will exhibit. Ask the expert if she believes the disease qualifies as a serious mental disease or defect. The first time I tried a case where the insanity defense was raised, I presumed that the mental disease our expert had diagnosed the defendant with was a serious one. Had the expert not happened to mention how he believed the disease, while very real, did not amount to a serious disease or defect, I would have never thought to ask.
If the expert does diagnose the defendant with a serious mental disease or defect, prepare to explain how someone can have said mental disease or defect but still be able to differentiate between right and wrong. This is where many insanity defenses come apart. Remember here that while voluntary intoxication is not a defense to criminal prosecution in Texas, temporary insanity due to intoxication is an affirmative defense in Texas that can be raised during the punishment phase of the trial, and it is not the same as an insanity defense. Make sure to get a good grip on this issue while preparing the expert.
The defense’s expert. Cross-examination of the defense’s mental health expert might end up being one of the most important parts of a trial where this defense is raised. Every case is different, as is every mental health expert, so don’t look at the following as the Rosetta Stone of crossing defense experts because it’s not. It’s a series of jumping-off points for you to explore with the hopes that the ideas will lead to something valuable to your case.
Start by digging into the expert’s background. Go to his website and see how he markets himself. If the expert says he specializes in OCD and anxiety disorders, do you think jurors would assign different weight to his testimony than if he billed himself as a forensic psychologist who specializes in competency to stand trial, mental states at the time of the alleged offense, and sentencing issues such as assessing future dangerousness? Of course they would, so be prepared to elicit that testimony from the expert.
If your office doesn’t have a lot of experience with this particular expert, ask around at the prosecutor’s offices in neighboring counties. Find someone who has dealt with this person before. Copies of reports in other cases, transcripts of testimony, and the first-hand experience of other prosecutors will all make your job a little easier.
Read the expert’s report to see what materials he reviewed in preparation for examining the defendant. Did he review only the offense report and accompanying witness statements while overlooking other important records? If the defendant was in jail at the time of the examination, look at the visitor logs to see how much time the expert spent at the jail. It’s always nice to find out that the expert spent only 20 or 30 minutes with the defendant prior to issuing the report.
The deeper your understanding of the DSM-5, the easier your cross of the defense expert will go. Brush up on the diagnoses you and the State’s expert think the defense is most likely to reach. The DSM-5 is full of material explaining how to diagnose a particular illness, how and when the illness presents itself, and what the associated symptoms are. Look for any inconsistencies between what is included in the DSM-5 and the defense expert’s diagnosis. For example, if the defendant is diagnosed with Illness X and the DSM-5 says that Illness X typically presents during puberty, it would be very significant if the defendant was never diagnosed with that illness and the telltale symptoms were not exhibited during the defendant’s puberty.
It goes without saying that the State’s expert will be very helpful when it comes to preparing this portion of cross-examination. The State’s expert can make sure that the defense’s expert is applying the right medical criteria in diagnosing the defendant’s mental illness. Esteemed Texas prosecutor Roe Wilson once encouraged attendees at a CLE to keep copies of both the DSM-IV and the DSM-5 handy when cross examining the defense expert, as it’s not unheard of for an expert to reach a diagnosis based on DSM-IV material that has been updated or outright changed by the DSM-5. Your expert will be very helpful in designing a cross-examination that highlights those distinctions and the deficiencies of a diagnosis based on outdated criteria.
At the end of the day, remember that despite the prosecution’s extensive preparation, the defendant’s expert will probably know more about forensic psychology and psychiatry than you do. Go into cross with the mindset that you will get whatever concessions from the expert you can and make the points that you (and your expert) know you can make. Don’t try to over-extend yourself in an attempt to get that “Perry Mason” moment in front of the jury. Letting the defense expert get the better of you is one of the worst things that can come out of cross, so play it smart and remember that you still have your own expert’s testimony to combat anything that comes from the defense expert.
Address the likelihood of expert testimony and the law regarding the insanity defense with venire members during voir dire. You don’t have to reinvent the wheel here. Question the panel about mental health testimony the same as you would with a DNA or controlled substance expert. Identify those people who have personal experience with mental illness or those who have expertise in the field who might second-guess the State’s expert. Draw out those people who could never convict someone with a mental illness or never consider the full range of punishment even in situations where having the mental illness doesn’t meet the legal definition of insanity.
When it comes to the law itself, make sure you spend time explaining Texas’s version of the insanity defense. Like most areas of criminal law, there will be a lot of misconceptions about what “not guilty by reason of insanity” means. Clear that up for jurors and commit them to the law. You will undoubtedly have people on the panel who say that the insanity defense is just nonsense that criminals use to escape punishment for their crimes. There might not be any rehabilitating jurors who are out there on that extreme. If you start hearing that kind of comment from a venire member, politely shut him down and prepare for him to be struck for cause. If you let him ramble for too long, he may end up influencing those jurors who have honest misconceptions about the law and cause some people who could follow the law and be good jurors into saying something that gets them struck for cause.
Determining the issue of insanity
Both judges and juries shall find the defendant not guilty by reason of insanity if:
1) the State has proven the criminal allegation beyond a reasonable doubt and
2) the defense has established that the defendant was insane at the time of the alleged conduct by a preponderance of the evidence.
If a jury trial is waived, the judge is permitted to determine the issue of insanity. More often than not, the issue of insanity is decided by the judge when both parties are in agreement that NGRI is the appropriate verdict. When this is the case, the parties can agree to an NGRI verdict on the basis of stipulated evidence.
In a jury trial, the issue of the defendant’s sanity is submitted to the jury only if it is supported by competent evidence. The jury cannot be informed about the consequences of an acquittal. As in all criminal jury trials, defendants are entitled to instructions on defensive issues when raised by the evidence. It’s improper for a trial court to instruct a jury on insanity if the evidence is insufficient to raise the issue.
In Pacheco v. State, the Court of Criminal Appeals recognized that “predicated lay opinion testimony, when considered with facts and circumstances concerning an accused and of the offense” may be sufficient to raise the defensive issue, but the evidence of lay witnesses who never undertake to express a conclusion or opinion on insanity is insufficient to raise the issue. Evidence of a severe mental disease or defect alone is not evidence of insanity—there must be some credible evidence that the defendant did not know his conduct was wrong.
If the case is tried before a jury, jurors will have three options when it comes to the verdict: guilty, not guilty, and not guilty by reason of insanity. Preparing the jury for these options is not as simple as adding NGRI to the court’s verdict form. The jury must be specifically instructed on the insanity defense. Failure to include this instruction when there is credible evidence to raise the issue will result in a reversal on appeal, so be certain the instruction is in there. Where the language of that instruction comes from is a matter of personal preference to some degree. Many offices draw on their own charge banks; others will use a pattern charge book like McClung’s, the Texas Bar’s Pattern Jury Charge books, or samples provided in TDCAA’s Mental Health Law for Prosecutors book.
Regardless of which source you rely on, it is very important to spend time in closing argument addressing the jury instructions on the issue of insanity. The insanity defense is the perfect opportunity for a skilled defense attorney to put the idea of diminished capacity into the jurors’ minds. Diminished capacity is not a defense in Texas, so don’t let the defense do this. Dedicate time in the State’s first closing argument to thoroughly explain the defense to the jury, using the language from the charge of the court itself. Save a minute or two of your remaining time in second close to refocus the jury on the issue and clear up any ambiguity or misconception the defense may have created during its closing argument.
Result of an NGRI
A verdict of NGRI is a verdict of acquittal. NGRI is not like an ordinary acquittal, though. After receiving an NGRI verdict, the court must make a determination whether the offense the defendant was acquitted of:
1) involved serious bodily injury to another person,
2) placed someone in imminent danger of serious bodily injury, or
3) consisted of a threat of serious bodily injury to another person through the use of a deadly weapon.
There are big differences in the post-acquittal procedures for dangerous and non-dangerous defendants. If the court finds the acquitted person was not dangerous, the court must determine whether there is evidence to support a finding that the person is someone with a mental illness or intellectual disability. If the person does suffer from a mental illness or intellectual disability, the criminal court shall enter an order transferring the person to the court in your county with jurisdiction over mental health services under Title 7 of the Texas Health and Safety Code. If need be, the court can order the person detained until such proceedings can be initiated.
The story is decidedly different if the court determines the newly acquitted person is dangerous. The court’s jurisdiction over such a person will continue until the person no longer suffers from mental illness or intellectual disability; the person is not likely to cause serious harm to another because of any severe mental illness or intellectual disability; or the total amount of time spent in jail prior to trial, institutionalization after being acquitted, and outpatient treatment equals the maximum term of the offense for which he was found NGRI.
What does the court do with its jurisdiction of the acquitted person? Step one is to have the person evaluated for his present mental state and for a treatment plan. To do that, the court must order a transcript of the trial’s medical testimony and all of the acquitted person’s vital statistics be sent to the mental health facility where he has been committed. Based on this information, the mental health facility will issue a report that details the acquitted person’s mental health diagnoses, whether the person is likely to cause harm to another person, and treatment options and recommendations.
Within 30 days of acquittal, the court will hold a hearing to determine the disposition of the acquitted person. This hearing will function the same way as an involuntary civil commitment hearing under Title 7 of the Health and Safety Code. At this hearing, the State must satisfy a three-pronged test by clear and convincing evidence that:
1) the person has a severe mental illness or intellectual disability,
2) as a result of that mental illness or intellectual disability, the person is likely to cause serious bodily injury to himself or others if not provided with treatment and supervision, and
3) inpatient treatment or residential care is necessary to protect the safety of others.
The aforementioned report from the mental health facility is the key piece of evidence in presenting the person’s mental state and appropriate treatment options. If the court finds that the available evidence fails to establish that inpatient treatment is necessary but still finds the first two elements have been proven by clear and convincing evidence, the court will order outpatient treatment. If the court finds that the first two elements have not been proved by clear and convincing evidence, it will consider whether civil commitment under Title 7 of the Health and Safety Code is proper, or it will order the person discharged and immediately released. Orders committing an acquitted person to inpatient or outpatient treatment have to be reviewed by the court every year so that the judge may determine whether to renew the order.
It’s also possible that over time and between annual renewal dates, a person sentenced to inpatient treatment will see his mental health improve. If this happens, the acquitted person, the facility treating the person, or the State may request the court to modify its order to require outpatient or community-based treatment and supervision instead of inpatient treatment. A court may similarly revoke an order placing an acquitted person in outpatient treatment on its own motion or the motion of any interested party if it finds that the person is failing to comply with the treatment regimen in such a way that indicates he will become likely to cause serious bodily injury to another person or that he already has become likely to cause serious bodily injury to another person.
Obviously, the defendant has a right to a jury trial on the defense of insanity itself. It’s less obvious what other proceedings can be decided by a jury too. Art. 46C.255 addresses which matters may be determined by a jury and which must be determined only by a judge. The State, the acquitted person, or the court can request a jury trial on the following:
• the disposition hearing under Art. 46.253;
• a renewal proceeding under Art. 46C.261;
• a modification or revocation proceeding under Art. 46C.266; and
• a discharge proceeding under Art. 46C.268.
A jury can never hear a proceeding to determine outpatient or community-based treatment under Art. 46C.262 or a proceeding to determine the modification or revocation of outpatient or community-based treatment under Art. 46C.267.
An NGRI judgment can be appealed by the acquitted person and, in some limited circumstances, by the State. These possibilities are governed by Tex. Code Crim. Proc. Art. 46C.270. The acquitted person can appeal the finding that he committed the offense and the finding that the offense involved serious bodily injury or the threat of serious bodily injury. Both the State and the prosecuted person may appeal the following:
1) Order of Commitment to Inpatient or Outpatient Treatment,
2) the order renewing or refusing to renew an order for inpatient or outpatient treatment,
3) an order modifying or revoking an order for treatment, and
4) an order discharging or denying discharge of an acquitted person.
The insanity defense isn’t something we see every day. Often enough, when prosecutors do see it, the experts will be in agreement and it won’t be an issue to take before a jury. There will be, however, times when prosecutors must be prepared to explain the law to a victim before entering an agreed judgment of not guilty by reason of insanity, and other times where we have to argue the issue to a judge or jury. When those instances arise, they often do so in cases of the utmost importance to the victim and the community at large. For that reason, it remains an important issue for prosecutors to study and understand.
 Tex. Code Crim. Proc. Art. 46B.002.
 Tex. Code Crim. Proc. Art. 46B.003(a)(1-2).
 Tex. Code Crim. Proc. Art. 46B.004(a).
 Tex. Code Crim. Proc. Art. 46B.004(c).
 Tex. Code Crim. Proc. Art. 46B.004(c-1).
 Tex. Code Crim. Proc. Arts. 46B.071 and 46B.073.
 Martinez v. State, 867 S.W.2d 30, 33 (Tex. Crim. App. 1993).
 Tex. Penal Code §8.01(a).
 Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994).
 Tex. Code Crim. Proc. Art. 46C.051(b)(2).
 Tex. Code Crim. Proc. Art. 46C.051(c).
 Tex. Code Crim. Proc. Art. 46C.052, I researched the issue thoroughly and I could not find an instance where trial counsel was found to be ineffective for failing to timely file a notice of intent to raise the insanity defense.
 Tex. Code Crim. Proc. Art. 46C.101.
 Tex. Code Crim. Proc. Art. 46C.101(b).
 Tex. Code Crim. Proc. Art. 46C.104(a).
 Tex. Code Crim. Proc. Art. 46C.105(a).
 Tex. Code Crim. Proc. Art. 46C.150(b).
 There is certainly a political debate to be had about whether this element of the insanity defense is too difficult to meet. Because the purpose of this article is to discuss what the insanity defense is and not what it should or should not be, I will leave that debate for Twitter and the Texas Legislature.
 Tex. Penal Code §8.04(b).
 Tex. Code Crim. Proc. Art. 46C.153(a)(1-2).
 Tex. Code Crim. Proc. Art. 46C.152(a).
 Tex. Code Crim. Proc. Art. 46C.152(b).
 Tex. Code Crim. Proc. Art. 46C.151(a).
 Tex. Code Crim. Proc. Art. 46C.051.
 Ferrel v. State, 55 S.W.2d 586, 591 (Tex. Crim. App. 2001).
 Jeffley v. State, 938 S.W.2d 514, 516 (Tex. App.—Texarkana 1997, no pet.).
 Pacheco v. State, 757 S.W.2d 729, 736 (Tex. Crim. App. 1988).
 Id. at 735-736.
 Nutter v. State, 93 S.W.3d 130, 132 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
 Plough v. State, 725 S.W.2d 494, 500 (Tex. App.—Corpus Christi 1987, no pet.).
 Tex. Code Crim. Proc. Art. 46C.155.
 Tex. Code Crim. Proc. Art. 46C.157.
 Tex. Code Crim. Proc. Art. 46C.201(a). The language of the CCP still refers to the terms “mental illness and mental retardation.” Most other area statutes, including Texas Penal Code §8.01 defining insanity, do not use the term retardation. The medical profession, not to mention society as a whole, consistently uses the terms “mental illness” and “intellectual disability.” In fact, the DSM-5 does not use the word “retardation” at all. Please know that my use of the term “intellectual disability” in reference to Chapter 46C of the Code of Criminal Procedure is synonymous with that statute’s use of the term “mental retardation.”
 Tex. Code Crim. Proc. Art. 46C.201(b).
 Tex. Code Crim. Proc. Art. 46C.201(b)(1).
 Tex. Code Crim. Proc. Arts. 46C.158 and 46C.268.
 Tex. Code Crim. Proc. Art. 46C.251(b).
 Tex. Code Crim. Proc. Art. 46C.252.
 Tex. Code Crim. Proc. Art. 46C.251(d).
 Tex. Code Crim. Proc. Art. 46C.256(a).
 Tex. Code Crim. Proc. Art. 46C.253(b).
 Tex. Code Crim. Proc. Art. 46C.257.
 Tex. Code Crim. Proc. Art. 46C.253(f).
 Tex. Code Crim. Proc. Art. 46C.261.
 Tex. Code Crim. Proc. Art. 46C.262.
 Tex. Code Crim. Proc. Art. 46C.266.
 Tex. Code Crim. Proc. Art. 46C.270(a).
 Tex. Code Crim. Proc. Art. 46C.270(b).