17.11 - C. Trying An Insanity Defense Case

• Jurisdiction: New York

c. Trying an Insanity Defense Case

If the defendant intends to raise lack of criminal responsibility by reason of mental disease or defect as a defense at trial, he must so notify the district attorney and the court not more than 30 days after his plea of not guilty is entered.²⁶⁵³ Absent compliance with this procedure, the defendant may not offer evidence of insanity at trial. The court may permit notice to be given at a time later than is usual, in the interest of justice and for good cause shown. The notice must provide enough information to enable the People and the court to discern the general nature of the psychiatric malady and its relationship to a particular proffered defense.²⁶⁵⁴ (An issue concerning the denial of a motion to file a late notice of intention to present psychiatric evidence does not survive a guilty plea for purposes of appeal.²⁶⁵⁵ In addition, the court has rejected a claim that a defendant was denied a fair trial when expert psychiatric testimony was excluded because of a failure to timely give the statutory notice.)²⁶⁵⁶

Insanity is a legal term and not a medical one. “Though this be madness, yet there is method in’t.”²⁶⁵⁷ The defendant’s conduct will be important to the determination of insanity. This includes conduct prior to the crime, at the time of the crime and after the crime. The defendant’s previous history of mental illness is probative and admissible on the issue of sanity but has been held not to be conclusive.²⁶⁵⁸ Proof of insanity following commission of the crime is also relevant.²⁶⁵⁹

If a psychiatrist or licensed psychologist testifies as to the defendant’s condition at the time of the crime, he must be given an opportunity to state the nature of any examination, his diagnosis of the defendant’s condition and his opinion as to the defendant’s capacity to know or appreciate the nature of his conduct and its wrongfulness, and to make any explanation necessary to clarify his diagnosis and opinion.²⁶⁶⁰ Where the psychiatrist or psychologist is able to express his opinion with reasonable certainty based on legally competent evidence, but he has also interviewed third-party sources to confirm his opinion, the jury must be informed of these sources.²⁶⁶¹ Where there is conflicting expert testimony on the issue of a defendant’s mental condition, the determination of the trier of fact to accept or reject the opinion of an expert in whole or in part is entitled to deference.²⁶⁶²

The defendant’s privilege against self-incrimination exists during pretrial psychiatric examinations but is waived once he interposes the defense of insanity.²⁶⁶³ The People have a right, even without an appropriate motion under CPL § 240.20, to the transcripts of examinations of the defendant by the defense psychiatrists.²⁶⁶⁴ The doctor may testify only to the facts upon which he bases his medical opinion but not to all matters concerning the commission of the crime itself.²⁶⁶⁵

Any statement made by the defendant to the examiner is admissible only for the purpose of determining the defendant’s mental condition and may not be considered in determining whether the defendant committed the offense. The jury must be given a qualifying instruction to this effect.²⁶⁶⁶

When the defendant serves notice of intent to present psychiatric evidence, the district attorney may apply to the court, upon notice to the defendant, for an order that the defendant submit to a psychiatric examination with a psychiatrist or licensed psychologist designated by the district attorney. The defendant has an absolute right to the presence of his counsel and the prosecutor may be present, but both counsel may only observe. The psychiatric examiner’s written report must be sent to both counsel. No transcript is required but, if made, such transcript must be given to both counsel prior to trial. If the court finds that the defendant refused to cooperate fully in this psychiatric exam, it may preclude the use of all psychiatric testimony at trial. However, if the defendant has competent nonpsychiatric proof as to his mental condition, he may present it at trial. The People may also get a jury charge that the jury may consider the fact that the defendant did not submit to or fully cooperate in a court-ordered examination in determining the merits of the defense.

Where the district attorney has a psychiatric examination conducted secretly, without the knowledge of the court or of defense counsel, any statements the...