1995 Chapter 971

971.14 Annotation Sub. (5) requires, in accordance with Jackson v. Indiana, 406 U.S. 715 (1972), that competency commitments be justified by the defendant's continued progress toward becoming competent within a reasonable time. The maximum commitment period is established at 18 months, in accordance with State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250 (1974) and other data. If a defendant becomes competent while committed for treatment and later becomes incompetent, further commitment is permitted but in no event may the cumulated commitment periods exceed 24 months or the maximum sentence for the offense with which the defendant is charged, whichever is less. State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257 (1978).

971.14 Annotation Sub. (6) clarifies the procedures for transition to civil commitment, alcoholism treatment or protective placement when the competency commitment has not been, or is not likely to be, successful in restoring the defendant to competency. The new statute requires the defense counsel, district attorney and criminal court to be notified when the defendant is discharged from civil commitment, in order that a redetermination of competency may be ordered at that stage. State ex rel. Porter v. Wolke, 80 Wis. 2d 197, 297 N.W. 2d 881 (1977). The procedures specified in sub. (6) are not intended to be the exclusive means of initiating civil commitment proceedings against such persons. See, e.g., In Matter of Haskins, 101 Wis. 2d 176 (Ct. App. 1980). [Bill 765-A]

971.14 Note Judicial Council Note, 1990: [Re amendment of (1) (c)] The McCredden hearing is substantially similar in purpose to the preliminary examination. The standard for admission of telephone testimony should be the same in either proceeding.

971.14 Annotation [Re amendment of (4) (b)] The standard for admission of telephone testimony at a competency hearing is the same as that for a preliminary examination. See s. 970.03 (13) and NOTE thereto. [Re Order eff. 1-1-91]

971.14 Annotation Legislature intended by reference to 973.155 in (5) (a) that good time credit be accorded persons committed as incompetent to stand trial. State v. Moore, 167 W (2d) 491, 481 NW (2d) 633 (1992).

971.14 Annotation Competency hearing may be waived by defense counsel without affirmative assent of defendant. State v. Guck, 176 W (2d) 845, 500 NW (2d) 910 (1993).

971.14 Annotation Due process requires prosecution to shoulder burden of proving defendant is fit to stand trial once the issue of unfitness has been properly raised. United States ex rel. SEC v. Billingsley, 766 F (2d) 1015 (7th Cir. 1985).

971.14 Annotation Wisconsin's new competency to stand trial statute. Fosdal and Fullin. WBB Oct. 1982.

971.14 Annotation The insanity defense: Ready for reform? Fullin. WBB Dec. 1982.

971.15 971.15  Mental responsibility of defendant.

971.15(1) (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.

971.15(2) (2) As used in this chapter, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

971.15(3) (3) Mental disease or defect excluding responsibility is an affirmative defense which the defendant must establish to a reasonable certainty by the greater weight of the credible evidence.

971.15 History History: 1993 a. 486.

971.15 Annotation It is not a violation of due process to put the burden of the affirmative defense of mental disease or defect on the defendant. State v. Hebard, 50 W (2d) 408, 184 NW (2d) 156.

971.15 Annotation Psychomotor epilepsy may be legally classified as a mental disease or defect. Sprague v. State, 52 W (2d) 89, 187 NW (2d) 784.

971.15 Annotation The state does not have to produce evidence contradicting an insanity defense. The burden is on the defendant. Gibson v. State, 55 W (2d) 110, 197 NW (2d) 813.

971.15 Annotation A voluntarily drugged condition is not a form of insanity which can constitute a mental defect or a disease. Medical testimony can hardly be used both on the issue of guilt to prove lack of intent and also to prove insanity. Gibson v. State, 55 W (2d) 110, 197 NW (2d) 813.

971.15 Annotation The legislature, in enacting this section, the ALI Institute definition of insanity, deliberately and positively excluded "antisocial conduct" from the statutory definition of "mental disease or defect." Simpson v. State, 62 W (2d) 605, 215 NW (2d) 435.

971.15 Annotation The jury was not obliged to accept the testimony of the 2 medical witnesses, although the state did not present medical testimony, because it was their responsibility to determine the weight and credibility of the medical testimony. Pautz v. State, 64 W (2d) 469, 219 NW (2d) 327.

971.15 Annotation See note to 939.42, citing State v. Kolisnitschenko, 84 W (2d) 492, 267 NW (2d) 321 (1978).

971.15 Annotation Court properly directed verdict against defendant on issue of mental disease or defect. State v. Leach, 124 W (2d) 648, 370 NW (2d) 240 (1985).

971.15 Annotation Use of expert evidence of personality dysfunction in the guilt phase of a criminal trial discussed. State v. Morgan, 195 W (2d) 388, 536 NW (2d) 425 (Ct. App. 1995).

971.15 Annotation The power of the psychiatric excuse. Halleck, 53 MLR 229.

971.15 Annotation The insanity defense: Conceptual confusion and the erosion of fairness. MacBain, 67 MLR 1 (1983).

971.15 Annotation Evidence of diminished capacity inadmissible to show lack of intent. 1976 WLR 623.

971.16 971.16  Examination of defendant.

971.16(1) (1) In this section:

971.16(1)(a) (a) "Physician" has the meaning given in s. 448.01 (5).

971.16(1)(b) (b) "Psychologist" means a person holding a valid license under s. 455.04.

971.16(2) (2) If the defendant has entered a plea of not guilty by reason of mental disease or defect or there is reason to believe that mental disease or defect of the defendant will otherwise become an issue in the case, the court may appoint at least one physician or at least one psychologist, but not more than 3 physicians or psychologists or combination thereof, to examine the defendant and to testify at the trial. The compensation of the physicians or psychologists shall be fixed by the court and paid by the county upon the order of the court as part of the costs of the action. The receipt by any physician or psychologist summoned under this section of any other compensation than that so fixed by the court and paid by the county, or the offer or promise by any person to pay such other compensation, is unlawful and punishable as contempt of court. The fact that the physician or psychologist has been appointed by the court shall be made known to the jury and the physician or psychologist shall be subject to cross-examination by both parties.

971.16(3) (3) Not less than 10 days before trial, or at any other time that the court directs, any physician or psychologist appointed under sub. (2) shall file a report of his or her examination of the defendant with the judge, who shall cause copies to be transmitted to the district attorney and to counsel for the defendant. The contents of the report shall be confidential until the physician or psychologist has testified or at the completion of the trial. The report shall contain an opinion regarding the ability of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct with the requirements of law at the time of the commission of the criminal offense charged and, if sufficient information is available to the physician or psychologist to reach an opinion, his or her opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment. The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:

971.16(3)(a) (a) The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.

971.16(3)(b) (b) The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

971.16(4) (4) If the defendant wishes to be examined by a physician, psychologist or other expert of his or her own choice, the examiner shall be permitted to have reasonable access to the defendant for the purposes of examination. No testimony regarding the mental condition of the defendant shall be received from a physician, psychologist or expert witness summoned by the defendant unless not less than 3 days before trial a report of the examination has been transmitted to the district attorney and unless the prosecution has been afforded an opportunity to examine and observe the defendant if the opportunity has been seasonably demanded. The state may summon a physician, psychologist or other expert to testify, but that witness shall not give testimony unless not less than 3 days before trial a written report of his or her examination of the defendant has been transmitted to counsel for the defendant.

971.16(5) (5) If a physician, psychologist or other expert who has examined the defendant testifies concerning the defendant's mental condition, he or she shall be permitted to make a statement as to the nature of his or her examination, his or her diagnosis of the mental condition of the defendant at the time of the commission of the offense charged, his or her opinion as to the ability of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform to the requirements of law and, if sufficient information is available to the physician, psychologist or expert to reach an opinion, his or her opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment for the defendant's mental condition. Testimony concerning the defendant's need for medication or treatment and competence to refuse medication or treatment may not be presented before the jury that is determining the ability of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct with the requirements of law at the time of the commission of the criminal offense charged. The physician, psychologist or other expert shall be permitted to make an explanation reasonably serving to clarify his or her diagnosis and opinion and may be cross-examined as to any matter bearing on his or her competency or credibility or the validity of his or her diagnosis or opinion.

971.16(6) (6) Nothing in this section shall require the attendance at the trial of any physician, psychologist or other expert witness for any purpose other than the giving of his or her testimony.

971.16 History History: 1989 a. 31, 359; 1991 a. 39; 1995 a. 268.

971.16 Annotation Denial of defendant's motion for a directed verdict after defendant's sanity witnesses had testified and the state had rested, and then allowing 3 witnesses appointed by the court to testify, was not an abuse of discretion. State v. Bergenthal, 47 W (2d) 668, 178 NW (2d) 16.

971.16 Annotation The rules stated in the Bergenthal case apply where the trial is to the court. Lewis v. State, 57 W (2d) 469, 204 NW (2d) 527.

971.16 Annotation It is not error to allow a psychiatrist to express an opinion that no psychiatrist could form an opinion as to defendant's legal sanity because of unknown variables. Kemp v. State, 61 W (2d) 125, 211 NW (2d) 793.

971.16 Annotation "Mental condition" within meaning of (3) refers to the defense of mental disease or defect, not to an intoxication defense. Loveday v. State, 74 W (2d) 503, 247 NW (2d) 116.

971.16 Annotation An indigent defendant is constitutionally entitled to an examining physician at state expense when mental status is an issue, but this statute is not the vehicle to satisfy this constitutional obligation. State v. Burdick, 166 W (2d) 785, 480 NW (2d) 528 (Ct. App. 1992).

971.165 971.165  Trial of actions upon plea of not guilty by reason of mental disease or defect.

971.165(1) (1) If a defendant couples a plea of not guilty with a plea of not guilty by reason of mental disease or defect:

971.165(1)(a) (a) There shall be a separation of the issues with a sequential order of proof in a continuous trial. The plea of not guilty shall be determined first and the plea of not guilty by reason of mental disease or defect shall be determined second.

971.165(1)(b) (b) If the plea of not guilty is tried to a jury, the jury shall be informed of the 2 pleas and that a verdict will be taken upon the plea of not guilty before the introduction of evidence on the plea of not guilty by reason of mental disease or defect. No verdict on the first plea may be valid or received unless agreed to by all jurors.

971.165(1)(c) (c) If both pleas are tried to a jury, that jury shall be the same, except that:

971.165(1)(c)1. 1. If one or more jurors who participated in determining the first plea become unable to serve, the remaining jurors shall determine the 2nd plea.

971.165(1)(c)2. 2. If the jury is discharged prior to reaching a verdict on the 2nd plea, the defendant shall not solely on that account be entitled to a redetermination of the first plea and a different jury may be drawn to determine the 2nd plea only.

971.165(1)(c)3. 3. If an appellate court reverses a judgment as to the 2nd plea but not as to the first plea and remands for further proceedings, or if the trial court vacates the judgment as to the 2nd plea but not as to the first plea, the 2nd plea may be determined by a different jury drawn for this purpose.

971.165(1)(d) (d) If the defendant is found not guilty, the court shall enter a judgment of acquittal and discharge the defendant. If the defendant is found guilty, the court shall withhold entry of judgment pending determination of the 2nd plea.

971.165(2) (2) If the plea of not guilty by reason of mental disease or defect is tried to a jury, the court shall inform the jury that the effect of a verdict of not guilty by reason of mental disease or defect is that, in lieu of criminal sentence or probation, the defendant will be committed to the custody of the department of health and family services and will be placed in an appropriate institution unless the court determines that the defendant would not pose a danger to himself or herself or to others if released under conditions ordered by the court. No verdict on the plea of not guilty by reason of mental disease or defect may be valid or received unless agreed to by at least five-sixths of the jurors.

971.165(3) (3) 

971.165(3)(a) (a) If a defendant is not found not guilty by reason of mental disease or defect, the court shall enter a judgment of conviction and shall either impose or withhold sentence under s. 972.13 (2).

971.165(3)(b) (b) If a defendant is found not guilty by reason of mental disease or defect, the court shall enter a judgment of not guilty by reason of mental disease or defect. The court shall thereupon proceed under s. 971.17. A judgment entered under this paragraph is interlocutory to the commitment order entered under s. 971.17 and reviewable upon appeal therefrom.

971.165 History History: 1987 a. 86; 1989 a. 31, 334; 1995 a. 27 s. 9126 (19).

971.165 Note Judicial Council Note, 1987: Wisconsin presently requires each element of the crime (including any mental element) to be proven before evidence is taken on the plea of not guilty by reason of mental disease or defect. This statute provides for the procedural bifurcation of the pleas of not guilty and not guilty by reason of mental disease or defect, in order that evidence presented on the latter issue not prejudice determination of the former. State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607 (1976).

971.165 Annotation The legal effect of a finding of not guilty by reason of mental disease or defect is that the court must commit the defendant to the custody of the department of health and social services under s. 971.17.

971.165 Annotation Sub. (1) (c) provides several necessary exceptions to the prior statute's requirement that the same jury try both pleas in order to avoid unnecessary redeterminations of guilt. Kemp v. State, 61 Wis. 2d 125 (1973).

971.165 Annotation Sub. (2) allows a five-sixths verdict on the plea of not guilty by reason of mental disease or defect. [87 Act 86]

971.165 Annotation Constitutionality of directed verdict against criminal defendant on issue of insanity upheld. Leach v. Kolb, 911 F (2d) 1249 (1990).

971.165 Annotation Restricting the admission of psychiatric testimony on a defendant's mental state: Wisconsin's Steele curtain. 1981 WLR 733.

971.17 971.17  Commitment of persons found not guilty by reason of mental disease or mental defect.

971.17(1) (1)  Commitment period. When a defendant is found not guilty by reason of mental disease or mental defect, the court shall commit the person to the department of health and family services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed under s. 973.15 (2) (a) against an offender convicted of the same crime or crimes, including imprisonment authorized by ss. 346.65 (2) (f), (2j) (d) or (3m), 939.62, 939.621, 939.63, 939.635, 939.64, 939.641, 939.645, 940.09 (1b) and 940.25 (1b) and 961.48 and other penalty enhancement statutes, as applicable, subject to the credit provisions of s. 973.155. If the maximum term of imprisonment is life, the commitment period specified by the court may be life, subject to termination under sub. (5).

971.17 Note NOTE: Sub. (1) is shown as affected by three acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).

971.17(1g) (1g) If the defendant under sub. (1) is found not guilty of a felony by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under s. 941.29.

971.17(1m) (1m) Sexual assault; registration and testing.

971.17(1m)(a) (a) If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

971.17(1m)(b) (b)

971.17(1m)(b)1. 1. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation, or for the solicitation, conspiracy or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2) or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.055, 948.06, 948.07, 948.08, 948.11 or 948.30, or of s. 940.30 or 940.31 if the victim was a minor and the defendant was not the victim's parent, the court shall require the defendant to comply with the reporting requirements under s. 301.45.

971.17(1m)(b)2. 2. Except as provided in subd. 1., if the defendant under sub. (1) is found not guilty by reason of mental disease or defect for any violation, or for the solicitation, conspiracy or attempt to commit any violation, of ch. 940, 944 or 948 or ss. 943.01 to 943.15, the court may require the defendant to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the defendant report under s. 301.45.

Effective date note NOTE: Sub. (1m) is shown as affected eff. 6-1-97 by 1995 Wis. Act 440. Prior to 6-1-97 it reads:

Effective date text (1m) Sexual assault; registration and testing. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis and to comply with the reporting requirements of s. 175.45.

971.17(2) (2) Investigation and examination.

971.17(2)(a) (a) The court shall enter an initial commitment order under this section pursuant to a hearing held as soon as practicable after the judgment of not guilty by reason of mental disease or mental defect is entered. If the court lacks sufficient information to make the determination required by sub. (3) immediately after trial, it may adjourn the hearing and order the department of health and family services to conduct a predisposition investigation using the procedure in s. 972.15 or a supplementary mental examination or both, to assist the court in framing the commitment order.

971.17(2)(b) (b) If a supplementary mental examination is ordered under par. (a), the court may appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the person. In lieu thereof, the court may commit the person to an appropriate mental health facility for the period specified in par. (c), which shall count as days spent in custody under s. 973.155.

971.17(2)(c) (c) An examiner shall complete an inpatient examination under par. (b) and file the report within 15 days after the examination is ordered unless, for good cause, the examiner cannot complete the examination and requests an extension. In that case, the court may allow one 15-day extension of the examination period. An examiner shall complete an outpatient examination and file the report of examination within 15 days after the examination is ordered.

971.17(2)(d) (d) If the court orders an inpatient examination under par. (b), it shall arrange for the transportation of the person to the examining facility within a reasonable time after the examination is ordered and for the person to be returned to the jail or court within a reasonable time after the examination has been completed.

971.17(2)(e) (e) The examiner appointed under par. (b) shall personally observe and examine the person. The examiner or facility shall have access to the person's past or present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If the examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.

971.17(2)(f) (f) The costs of an examination ordered under par. (a) shall be paid by the county upon the order of the court as part of the costs of the action.

971.17(2)(g) (g) Within 10 days after the examiner's report is filed under par. (c), the court shall hold a hearing to determine whether commitment shall take the form of institutional care or conditional release.

971.17(3) (3) Commitment order.

971.17(3)(a) (a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.

971.17(3)(b) (b) If the state proves by clear and convincing evidence that the person is not competent to refuse medication or treatment for the person's mental condition, under the standard specified in s. 971.16 (3), the court shall issue, as part of the commitment order, an order that the person is not competent to refuse medication or treatment for the person's mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.

971.17(3)(c) (c) If the court order specifies institutional care, the department of health and family services shall place the person in an institution under s. 51.37 (3) that the department considers appropriate in light of the rehabilitative services required by the person and the protection of public safety. If the person is not subject to a court order determining the person to be not competent to refuse medication or treatment for the person's mental condition and if the institution in which the person is placed determines that the person should be subject to such a court order, the institution may file with the court, with notice to the person and his or her counsel and the district attorney, a motion for a hearing, under the standard specified in s. 971.16 (3), on whether the person is not competent to refuse medication or treatment. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the person needs medication or treatment and that the person is not competent to refuse medication or treatment, based on an examination of the person by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall determine the person's competency to refuse medication or treatment for the person's mental condition. At the request of the person, his or her counsel or the district attorney, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this paragraph. If the district attorney, the person and his or her counsel waive their respective opportunities to present other evidence on the issue, the court shall determine the person's competency to refuse medication or treatment on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. If the state proves by evidence that is clear and convincing that the person is not competent to refuse medication or treatment, under the standard specified in s. 971.16 (3), the court shall order that the person is not competent to refuse medication or treatment for the person's mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.

971.17(3)(d) (d) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The department of health and family services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 21 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health and family services and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department of health and family services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.

971.17(3)(e) (e) An order for conditional release places the person in the custody and control of the department of health and family services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health and family services. Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department of health and family services may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.

971.17(4) (4) Petition for conditional release.