Judicial Council Committee's Note, 1981:
Sub. (1) (a) does not require the court to honor every request for an examination. The intent of sub. (1) (a) is to avoid unnecessary examinations by clarifying the threshold for a competency inquiry in accordance with State v. McKnight, 65 Wis. 2d 583
(1974). “Reason to doubt" may be raised by a motion setting forth the grounds for belief that a defendant lacks competency, by the evidence presented in the proceedings or by the defendant's colloquies with the judge or courtroom demeanor. In some cases an evidentiary hearing may be appropriate to assist the court in deciding whether to order an examination under sub. (2). Even when neither party moves the court to order a competency inquiry, the court may be required by due process to so inquire where the evidence raises a sufficient doubt. Pate v. Robinson, 383 U.S. 375
, 387 (1966); Drope v. Missouri, 420 U.S. 162
The Wisconsin supreme court has held that a defendant may not be ordered to undergo a competency inquiry unless the court has found probable cause to believe he or she is guilty of the offense charged. State v. McCredden, 33 Wis. 2d 661
(1967). Where this requirement has not been satisfied through a preliminary examination or verdict or finding of guilt prior to the time the competency issue is raised, a special probable cause determination is required. Subsection (1) (b) allows that determination to be made from the allegations in the criminal complaint without an evidentiary hearing unless the defendant submits a particularized affidavit alleging that averments in the criminal complaint are materially false. Where a hearing is held, the issue is limited to probable cause and hearsay evidence may be admitted. See s. 911.01 (4) (c).
Sub. (2) (a) requires the court to appoint one or more qualified examiners to examine the defendant when there is reason to doubt his or her competency. Although the prior statute required the appointment of a physician, this section allows the court to appoint examiners without medical degrees, if their particular qualifications enable them to form expert opinions regarding the defendant's competency.
Sub. (2) (b), (c) and (d) is intended to limit the defendant's stay at the examining facility to that period necessary for examination purposes. In many cases, it is possible for an adequate examination to be made without institutional commitment, expediting the commencement of treatment of the incompetent defendant. Fosdal, The Contributions and Limitations of Psychiatric Testimony, 50 Wis. Bar Bulletin, No. 4, pp. 31-33 (April 1977).
Sub. (2) (e) clarifies the examiner's right of access to the defendant's past or present treatment records, otherwise confidential under s. 51.30.
Sub. (2) (f) clarifies that a defendant on examination status may receive voluntary treatment but, until committed under sub. (5), may not be involuntarily treated or medicated unless necessary for the safety of the defendant or others. See s. 51.61 (1) (f), (g), (h) and (i).
Sub. (2) (g), like prior s. 971.14 (7), permits examination of the defendant by an expert of his or her choosing. It also allows access to the defendant by examiners selected by the prosecution at any stage of the competency proceedings.
Sub. (3) requires the examiner to render an opinion regarding the probability of timely restoration to competency, to assist the court in determining whether an incompetent defendant should be committed for treatment. Incompetency commitments may not exceed the reasonable time necessary to determine whether there is a substantial probability that the defendant will attain competency in the foreseeable future: Jackson v. Indiana, 406 U.S. 715
, 738 (1972). The new statute also requires the report to include the facts and reasoning which underlie the examiner's clinical findings and opinion on competency.
Sub. (4) is based upon prior s. 971.14 (4). The revision emphasizes that the determination of competency is a judicial matter. State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250
(1974). The standard of proof specified in State ex rel. Matalik v. Schubert, 57 Wis. 2d 315
(1973) has been changed to conform to the “clear and convincing evidence" standard of s. 51.20 (13) (e) and Addington v. Texas, 441 U.S. 418
(1979). [but see 1987 Wis. Act 85
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
, 270 N.W.2d 402
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]
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.
Effective date note
[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]
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
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
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 214
, 558 N.W.2d 626
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 s. 971.13 and this section to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502
, 563 N.W.2d 883
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), 98-0318
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
If the court determines under sub. (4) (d) that the defendant is not competent and not likely to become competent within 12 months, the proceedings shall be suspended and the defendant may be civilly committed under sub. (6) (a) as well as sub. (6) (b). When a prosecutor was subsequently notified that the defendant was not an appropriate candidate for civil commitment because he was not mentally retarded, the state was authorized to request for reevaluation under sub. (6) (d). State v. Carey, 2004 WI App 83
, 272 Wis. 2d 697
, 679 N.W.2d 910
The fact that a defendant was deemed competent to stand trial should not create a presumption that the defendant is competent at a later date when the same defendant pursues postconviction relief. State v. Daniel, 2015 WI 44
, 362 Wis. 2d 74
, 862 N.W.2d 867
There is no statute directly governing postconviction competency proceedings, but courts will look to s. 971.14 for guidance. Once a defense attorney raises the issue of competency at a postconviction hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant is competent to proceed. State v. Daniel, 2015 WI 44
, 362 Wis. 2d 74
, 862 N.W.2d 867
A proceeding to determine whether a defendant is competent is separate and distinct from the defendant's underlying criminal proceeding. Thus, an order that a defendant is not competent to proceed is a final order issued in a special proceeding and is appealable as of right pursuant to s. 808.03 (1). State v. Scott, 2018 WI 74
, 382 Wis. 2d 476
, 914 N.W.2d 141
Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott, 2018 WI 74
, 382 Wis. 2d 476
, 914 N.W.2d 141
Under Sell, 539 U.S. 166
(2003), a court may order involuntary medication for the purpose of competency to stand trial only if four factors are met: 1) important governmental interests are at stake; 2) involuntary medication will significantly further the government's interest in prosecuting the offense; 3) involuntary medication is necessary to further those interests; and 4) administration of the drugs is medically appropriate. Sub. (4) (b) does not require the circuit court to determine whether the Sell
factors have been met. Rather, it requires circuit courts to order involuntary medication for a defendant who is found incompetent to refuse medication under sub. (3) (dm). The mere inability of a defendant to express an understanding of medication or to make an informed choice about it is constitutionally insufficient to override a defendant's significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. To the extent that subs. (3) (dm) and (4) (b) require circuit courts to order involuntary medication when the Sell
standard has not been met, the statute is unconstitutional. State v. Fitzgerald, 2019 WI 69
, 387 Wis. 2d 384
, 929 N.W.2d 165
Wisconsin's new competency to stand trial statute. Fosdal & Fullin. WBB Oct. 1982.
The insanity defense: Ready for reform? Fullin. WBB Dec. 1982.
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.
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.
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.
History: 1993 a. 486
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
Psychomotor epilepsy may be legally classified as a mental disease or defect. Sprague v. State, 52 Wis. 2d 89
, 187 N.W.2d 784
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
A voluntarily drugged condition is not a form of insanity that can constitute a mental defect or disease. Medical testimony cannot 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
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
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
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
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), 93-2611
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 238
A court is not required to conduct an on-the-record colloquy with respect to a defendant's desire to abandon a not guilty by reason of mental disease or defect plea. Only fundamental constitutional rights warrant this special protection and such a plea falls outside the realm of fundamental rights. State v. Francis, 2005 WI App 161
, 285 Wis. 2d 451
, 701 N.W.2d 632
A court is not required to inform a defendant during a plea colloquy that he or she may plead guilty to a crime and still have a jury trial on the issue of mental responsibility. Because neither the federal or state constitutions confers a right to an insanity defense, a court has no obligation to personally address a defendant in regard to the withdrawal of an NGI plea, although it is the better practice to do so. State v. Burton, 2013 WI 61
, 349 Wis. 2d 1
, 832 N.W.2d 611
Although expert testimony may be helpful to a defendant in the responsibility phase of the trial, a favorable expert opinion is not an indispensable prerequisite to a finding of mental disease or defect. Although expert testimony is not required, it is highly unlikely that a defendant's own testimony, standing alone, will be sufficient to satisfy the burden of proof. State v. Magett, 2014 WI 67
, 355 Wis. 2d 617
, 850 N.W.2d 42
Because every person is competent to be a witness under s. 906.01 and there is no exception in s. 906.01 for defendants who have entered a plea of not guilty by reason of mental disease or defect, a defendant is competent to testify to his or her own mental health at the responsibility phase of a trial. This does not mean, however, that his or her testimony alone is sufficient to raise a question for the jury. State v. Magett, 2014 WI 67
, 355 Wis. 2d 617
, 850 N.W.2d 42
Consumption of prescription medication cannot give rise to a mental defect that would sustain an insanity defense. Furthermore, it is established law that one who mixes prescription medication with alcohol is responsible for any resulting mental state. State v. Anderson, 2014 WI 93
, 357 Wis. 2d 337
, 851 N.W.2d 760
Although a better practice, a circuit court is not required to conduct a right-to-testify colloquy at the responsibility phase of a bifurcated trial resulting from a plea of not guilty by reason of mental disease or defect. State v. Lagrone, 2016 WI 26
, 368 Wis. 2d 1
, 878 N.W.2d 636
The power of the psychiatric excuse. Halleck, 53 MLR 229.
The insanity defense: Conceptual confusion and the erosion of fairness. MacBain, 67 MLR 1 (1983).
Evidence of diminished capacity inadmissible to show lack of intent. 1976 WLR 623.
Examination of defendant. 971.16(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.
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:
The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
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.
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 15 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 15 days before trial a written report of his or her examination of the defendant has been transmitted to counsel for the defendant.
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.
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.
Denying the defendant's motion for a directed verdict after the defendant's sanity witnesses had testified and the state had rested, 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
It was 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
“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
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 right. State v. Burdick, 166 Wis. 2d 785
, 480 N.W.2d 528
(Ct. App. 1992).
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:
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.
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.
If both pleas are tried to a jury, that jury shall be the same, except that:
If one or more jurors who participated in determining the first plea become unable to serve, the remaining jurors shall determine the 2nd plea.
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.
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.
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.
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 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.
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)
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.
History: 1987 a. 86
; 1989 a. 31
; 1995 a. 27
s. 9126 (19)
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); 2007 a. 20
s. 9121 (6) (a)
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
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.
Sub. (2) allows a five-sixths verdict on the plea of not guilty by reason of mental disease or defect. [87 Act 86]
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), 97-3217
Section 972.01 (1), which requires state consent to the waiver of a jury in a criminal trial, applies when a defendant seeks to waive a jury in the responsibility phase of a bifurcated trial. The state has a legitimate interest in having the decision of mental responsibility decided by a jury. State v. Murdock, 2000 WI App 170
, 238 Wis. 2d 301
, 617 N.W.2d 175
A defendant can only be found not guilty by reason of mental disease or defect after admitting to the criminal conduct or being found guilty. While the decision made in the responsibility phase is not criminal in nature, the mental responsibility phase remains a part of the criminal case in general, and the defendant is entitled to invoke the 5th amendment at the mental responsibility phase without penalty. State v. Langenbach, 2001 WI App 222
, 247 Wis. 2d 933
, 634 N.W.2d 916