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
The legislature intended by the reference to s. 973.155 in sub. (5) (a) that good time credit be accorded persons committed as incompetent to stand trial. State v. Moore,
167 Wis. 2d 491,
481 N.W.2d 633 (1992).
971.14 Annotation
A competency hearing may be waived by defense counsel without affirmative assent of the defendant. State v. Guck,
176 Wis. 2d 845,
500 N.W.2d 910 (1993).
971.14 Annotation
The state bears the burden of proving competency when put at issue by the defendant. A defendant shall not be subject to a criminal trial when the state fails to prove competence by the greater weight of the credible evidence. A trial court's competency determination should be reversed only when clearly erroneous. State v. Garfoot,
207 Wis. 2d 215,
558 N.W.2d 626 (1997). See also State v. Byrge, 2000 WI 101, 237 Wis.2d 197,
614 N.W.2d 477.
971.14 Annotation
A probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott,
210 N.W.2d 503,
563 N.W.2d 883 (1997).
971.14 Annotation
When a competency examination was ordered, but never occurred, the time limits under sub. (2) did not begin to run and no violation occurred. State ex rel. Hager v. Marten,
226 Wis. 2d 687,
594 N.W.2d 791 (1999).
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 Wis. 2d 408,
184 N.W.2d 156.
971.15 Annotation
Psychomotor epilepsy may be legally classified as a mental disease or defect. Sprague v. State,
52 Wis. 2d 89,
187 N.W.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 Wis. 2d 110,
197 N.W.2d 813.
971.15 Annotation
A voluntarily drugged condition is not a form of insanity that 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 Wis. 2d 110,
197 N.W.2d 813.
971.15 Annotation
The legislature, in enacting the ALI Institute definition of insanity as this section, deliberately and positively excluded "antisocial conduct" from the statutory definition of "mental disease or defect." Simpson v. State,
62 Wis. 2d 605,
215 N.W.2d 435.
971.15 Annotation
The jury was not obliged to accept the testimony of 2 medical witnesses, although the state did not present medical testimony, because it was the jury's responsibility to determine the weight and credibility of the medical testimony. Pautz v. State,
64 Wis. 2d 469,
219 N.W.2d 327.
971.15 Annotation
Voluntary intoxication instructions were proper when the defendant, suffering from a non-temporary pre-psychotic condition, precipitated a temporary psychotic state by voluntary intoxication. State v. Kolisnitschenko,
84 Wis. 2d 492,
267 N.W.2d 321 (1978).
971.15 Annotation
The court properly directed the verdict against the defendant on the issue of mental disease or defect. State v. Leach,
124 Wis. 2d 648,
370 N.W.2d 240 (1985).
971.15 Annotation
Use of expert evidence of personality dysfunction in the guilt phase of a criminal trial is discussed. State v. Morgan,
195 Wis. 2d 388,
536 N.W.2d 425 (Ct. App. 1995).
971.15 Annotation
The burden of proof under sub. (4) (b), when a defendant claims to be competent, does not violate equal protection guarantees. It balances the fundamental rights of not being tried when incompetent and of not having liberty denied because of incompetence. State v. Wanta,
224 Wis. 2d 679,
592 N.W.2d 645 (Ct. App. 1999).
971.15 Annotation
When a defendant requests an 11th-hour change to a not guilty by reason of mental disease or defect plea, the defendant has the burden of showing why the change is appropriate. There must be an offer of proof encompassing the elements of the defense and a showing of why the plea was not entered earlier. State v. Oswald, 2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 278.
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(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 Annotation
Denying the defendant's motion for a directed verdict after the 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 Wis. 2d 668,
178 N.W.2d 16.
971.16 Annotation
It is not error to allow a psychiatrist to express an opinion that no psychiatrist could form an opinion as to the defendant's legal sanity because of unknown variables. Kemp v. State,
61 Wis. 2d 125,
211 N.W.2d 793.
971.16 Annotation
"Mental condition" under sub. (3) refers to the defense of mental disease or defect, not to an intoxication defense. Loveday v. State,
74 Wis. 2d 503,
247 N.W.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 Wis. 2d 785,
480 N.W.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 selected 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 selected 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)(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); Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997).
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. (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
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
The decision to withdraw a not guilty by reason of mental defect plea belongs to the defendant, not counsel. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999).
971.165 Annotation
A directed verdict against a criminal defendant on the issue of insanity was constitutional. Leach v. Kolb,
911 F.2d 1249 (1990).
971.165 Annotation
The trial court's wholesale exclusion of the defendant's proffered expert and lay testimony regarding pos-traumatic stress disorder from the guilt phase of a murder without valid justification violated the defendant's right to present a defense and to testify on her own behalf. Morgan v. Krenke,
72 F. Supp. 2d 980 (1999).
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),
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(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(1j)
(1j) Sexual assault; lifetime supervision. 971.17(1j)(b)
(b) If a person is found not guilty by reason of mental disease or defect of a serious sex offense, the court may, in addition to committing the person to the department of health and family services under
sub. (1), place the person on lifetime supervision under
s. 939.615 if notice concerning lifetime supervision was given to the person under
s. 973.125 and if the court determines that lifetime supervision of the person is necessary to protect the public.
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)1m.1m. Except as provided in
subd.2m., 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.
971.17(1m)(b)2m.
2m. 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,
948.095,
948.11 (2) (a) or
(am),
948.12,
948.13 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 unless the court determines, after a hearing on a motion made by the defendant, that the defendant is not required to comply under
s. 301.45 (1m).
971.17(1m)(b)3.
3. In determining under
subd. 1m. whether it would be in the interest of public protection to have the defendant report under
s. 301.45, the court may consider any of the following:
971.17(1m)(b)3.a.
a. The ages, at the time of the violation, of the defendant and the victim of the violation.
971.17(1m)(b)3.b.
b. The relationship between the defendant and the victim of the violation.
971.17(1m)(b)3.d.
d. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
971.17(1m)(b)3.e.
e. The probability that the defendant will commit other violations in the future.
971.17(1m)(b)3.g.
g. Any other factor that the court determines may be relevant to the particular case.
971.17(1m)(b)4.
4. If the court orders a defendant to comply with the reporting requirements under
s. 301.45, the court may order the defendant to continue to comply with the reporting requirements until his or her death.
971.17(1m)(b)5.
5. If the court orders a defendant to comply with the reporting requirements under
s. 301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the finding of not guilty by reason of mental disease or defect on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the finding has been reversed, set aside or vacated.
