Current Colorado Law on the Insanity Defense
| Publication year | 1995 |
| Pages | 1497 |
1995, July, Pg. 1497. Current Colorado Law on the Insanity Defense
In the 1995 legislative session, the Colorado General Assembly made significant changes in Colorado law involving the insanity defense. Colorado's mental status defenses in criminal cases have been unique both substantively and procedurally. Substantively, the affirmative defense of impaired mental condition ("IMC") was unique to Colorado. Procedurally, Colorado was one of only two states that had two separate trials for the insanity/sanity determination and the factual/guilt determination.
This article reviews the history of the insanity defense, Colorado's unique system and reforms of the insanity defense undertaken in other states. Finally, the article analyzes the 1995 legislative changes made to the Colorado insanity defense.
The famed Daniel M'Naghten case in 1843 in England set an early standard for defining when a person is criminally insane. M'Naghten attempted to assassinate the British Prime Minister Robert Peel, but mistakenly shot and killed the minister's secretary. The jury found the defendant not guilty by reason of insanity ("NGRI"), and the case established the M'Naghten Rule:
... to establish a defence [sic] on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defective reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong.(fn1)
In 1846, the M'Naghten Rule was broadened by the "irresistible impulse test," which encompassed impairments in control or "volition."(fn2) In 1954, in Durham v. United States, the M'Naghten Rule was further amended by the development of the insanity standard that "an accused is not criminally responsible if his unlawful act was the product of a mental disease or defect."(fn3) The "product test" proved to be too broad in application and, in 1972, the D.C. Circuit overturned Durham and adopted the American Law Institute ("ALI") standard.(fn4)
This standard combines the M'Naghten concept that an individual lacks understanding that one's conduct is wrong, with the basis of the volition test, inability to control one's conduct. The ALI standard has a broader application than M'Naghten because it permits exculpation upon a showing of a lack of "substantial" capacity rather than the total incapatitation necessary under the M'Naghten standard.
Currently, all the states except Montana, Idaho and Utah have some form of an insanity defense.(fn5) The states and federal courts are generally split between a version of the M'Naghten test and the ALI standard. New Hampshire is the only state that still uses the "product test."(fn6)
Originally, the insanity defense under Colorado law could be raised as part of a general not guilty plea. In 1927, however, "in order to avoid or lessen certain abuses that were believed to exist under that practice,"(fn7) the legislature changed the method of raising the question of insanity. Under the Act of 1927, the defendant specifically had to plead NGRI.(fn8) In 1933, in Ingles v. People, the court held such a requirement was not in violation of due process or the constitutional provision providing for the right to a jury trial in criminal cases.(fn9)
Between 1951 and 1983, the test for insanity in Colorado was the M'Naghten test augmented by the "irresistible impulse" test.(fn10) In 1983, the General Assembly modified this definition by deleting all references to the irresistible impulse test.(fn11) Pursuant to CRS § 16-8-101(1), for offenses occurring before July 1, 1995, the applicable test for insanity is:
A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable.
Katherine M. Clark, Denver, is the staff attorney for the Colorado District Attorneys Council.
A unique feature of Colorado law for offenses occurring before July 1, 1995, is that, pursuant to CRS § 16-8-104, the issues raised by the plea of NGRI are to be tried separately to different juries, and the sanity of the defendant is to be tried first. While other jurisdictions allow for bifurcated trials in certain situations, statutorily required bifurcated trials exist only in Wisconsin and, for occurences before July 1, 1995, Colorado.(fn12) Colorado case law provides that both the unitary and bifurcated systems are constitutional.(fn13)
The defense of impaired mental condition was first recognized in Colorado case law in 1933 when the Ingles case was decided.(fn14) That court distinguished between the defenses of insanity and impaired mental condition as follows:
Cases subsequent to Ingles continued to adhere to the rule that evidence of a mental condition was admissible to negate "express malice" or specific criminal intent.(fn16) The defense was not codified in Colorado until 1971. CRS § 40-1-903 provided:To be guilty of murder of the first degree a person must not only be sane, but in killing he must have acted willfully, deliberately and with premeditation. Whether he so acted is for the jury to determine after a consideration of all the facts and circumstances in evidence, including those affecting his mental condition at the time. A defendant by reason of his failure to raise the issue of insanity ... may be conclusively presumed to be sane in the sense that he is responsible and amenable to the law, and still by reason of some mental derangement---insanity or otherwise---may not have acted with express malice, deliberation, or premeditation; and in such case he would not be guilty of first-degree murder; second-degree murder being the highest degree of homicide which he could be convicted.(fn15)
Evidence of an impaired mental condition though not legal insanity may be offered in a proper case as bearing upon the capacity of the accused to form the specific intent if such an intent is an element of the offense charged.
In Hendershott v. People,(fn17) the Colorado Supreme Court found that the trial court's ruling that CRS § 18-1-803 (same wording as § 40-1-903) renders mental impairment evidence inadmissible for any crime not requiring specific intent it violated due process of law under the U.S. and Colorado Constitutions. The court stated:
Consequently, to prohibit the defendant from contesting the mens rea except by raising the insanity defense, "would be nothing short of a conclusive presumption of culpability."(fn19)[I]t defies both logic and fundamental fairness to prohibit a defendant from presenting reliable and relevant evidence that due to a mental impairment beyond his conscious control, he lacked the capacity to entertain the very culpability which is indispensable to his criminal responsibility in the first instance.(fn18)
As a result of the Hendershott decision, the statutes concerning the affirmative defense of impaired mental...
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