10.2Defenses Involving a Defendant’s Mental Status1
“‘[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him [or her] of his [or her] due process right to a fair trial.’” People v Kammeraad, 307 Mich App 98, 137 (2014), quoting Drope v Missouri, 420 US 162, 172 (1975) (first alteration in original).
“The protection afforded by the Due Process Clause requires that a court sua sponte hold a hearing regarding competency when any evidence raises a bona fide doubt about the competency of the defendant.” In re Carey, 241 Mich App 222, 227-228 (2000). See US Const, Am V; US Const, Am XIV; Const 1963, art 1, § 17; Cooper v Oklahoma, 517 US 348, 355-356 (1996) (a state may not proceed with a criminal trial after the defendant has demonstrated that he or she is more likely than not incompetent); Pate v Robinson, 383 US 375, 385-386 (1966) (where evidence introduced at trial on behalf of the accused raised a bona fide doubt as to his competence, the trial court’s failure to sua sponte conduct a competency hearing deprived the accused of his constitutional right to a fair trial); People v Ray, 431 Mich 260, 270 n 5 (1988).
“[A] criminal defendant’s mental condition at the time of trial must be such as to assure that he [or she] understands the charges against him [or her] and can knowingly assist in his [or her] defense.” People v McSwain, 259 Mich App 654, 692 (2003); see also Dusky v United States, 362 US 402, 402-403 (1960) (concluding that “the test must be whether he [or she] has sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding—and whether he [or she] has a rational as well as factual understanding of the proceedings against him[ or her]”) (quotation marks omitted). “To protect this right to due process, Michigan has enacted statutes and a court rule regarding the competency of criminal defendants.” Kammeraad, 307 Mich App at 137; see MCL 330.2020 et seq.; MCR 6.125.
MCL 330.2020(1) states that a criminal defendant is presumed competent to stand trial unless “he [or she] is incapable because of his [or her] mental condition of understanding the nature and object of the proceedings against him [or her] or of assisting in his [or her] defense in a rational manner.” In making this determination, the court must assess “the capacity of a defendant to assist in his [or her] defense by his [or her] ability to perform the tasks reasonably necessary for him [or her] to perform in the preparation of his [or her] defense and during his [or her] trial.” Id.
The standard for competence to plead guilty is the same as that for competency to stand trial. Godinez v Moran, 509 US 389, 396-400 (1993), citing Dusky, 362 US 402.
A defendant’s competence may be based on the defendant’s medicated state. See MCL 330.2020(2). A defendant is not incompetent when medication makes the defendant competent, even if the defendant would be incompetent without the medication. MCL 330.2020(2); People v Mette, 243 Mich App 318, 331 (2000). “However, when the defendant is receiving such medication, the court may, prior to making its determination on the issue of incompetence to stand trial, require the filing of a statement by the treating physician that such medication will not adversely affect the defendant’s understanding of the proceedings or his [or her] ability to assist in his [or her] defense.” MCL 330.2020(2). See also Sell v United States, 539 US 166, 180-183 (2003) (holding that the involuntary administration of drugs solely for trial competence purposes is permitted in certain rare instances).
3.Raising the Issue of Competence
The issue of competency may be raised at any time during the proceedings against a defendant, MCR 6.125(B), “including proceedings in the district court, or subsequent to trial, such as sentencing[,]” 1989 Staff Comment to MCR 6.125.
The question of competency to stand trial may be raised by either party or by the court. MCL 330.2024; MCR 6.125(B). Indeed, “[b]ecause the conviction of a legally incompetent defendant is a deprivation of due process, evidence that raises a ‘bona fide’ doubt as to competence obligates a sanity hearing sua sponte.” Ray, 431 Mich at 270 n 5, quoting Pate, 383 US at 385; see also Kammeraad, 307 Mich App at 138.
4.Determination Whether Competency Inquiry is Required
The trial court’s decision regarding the necessity of further inquiry as to the defendant’s competence is reviewed for an abuse of discretion. Kammeraad, 307 Mich App at 138.
The test “‘is whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial.’” Kammeraad, 307 Mich App at 138-139 (citation omitted). “[E]vidence of a defendant’s irrational behavior, his [or her] demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but . . . even one of these factors standing alone may, in some circumstances, be sufficient.” Drope, 420 US at 180. “There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” Id.
The trial court is not required to accept without question an attorney’s representations concerning the competence of his or her client, although counsel’s expression of doubt in that regard is a factor that should be considered when determining whether further inquiry is required. Drope, 420 US at 177 n 13.
The trial court did not abuse its discretion in failing to order a competency examination where the court “was able to personally observe [the] defendant’s behavior and conduct, hear live [the] defendant’s remarks and the tone of and inflections in his voice, and directly assess [the] defendant’s demeanor, attitude, and comments[.]” Kammeraad, 307 Mich App at 140-141.
5.Order for Competency Examination
A trial court must order a competency examination upon a showing that the defendant may be incompetent to stand trial. MCL 330.2026(1); MCR 6.125(C)(1). The examination must be conducted “by a certified or licensed examiner of the [Center for Forensic Psychiatry] or other facility officially certified by the department of mental health to perform examinations relating to the issue of competence to stand trial.” MCR 6.125(C)(1); see also MCL 330.2026(1).2 “The defendant must appear for the examination as required by the court.” MCR 6.125(C)(2); see also MCL 330.2026(1). The examining center or facility must submit a written report to the court within 60 days of the date of the order for examination. MCL 330.2028(1).
On a showing of good cause by either party, the court may order an independent examination. MCR 6.125(D).3 However, “[b]ecause of a presumption that the Center for Forensic Psychiatry or other facility officially certified by the Department of Mental Health will properly perform their functions, ‘good cause’ justifying an independent competency examination should arise only in exceptional cases.” 1989 Staff Comment to MCR 6.125.
A competency hearing must be held within five days of the court’s receipt of the examiner’s written report, or on conclusion of the proceedings then before the court, whichever is sooner, unless an adjournment is granted upon a showing of good cause. MCR 6.125(E); MCL 330.2030(1).
The court must determine the issue of competency based on evidence admitted at the hearing. MCL 330.2030(2). Absent objection, the examiner’s written report is admissible at the hearing; however, it is not admissible for any other purpose. MCL 330.2030(3); see also MCL 330.2028(3); MCL 330.1750(2)(f) (a privileged communication “made during treatment that the patient was ordered to undergo to render the patient competent to stand trial on a criminal charge[]” may be disclosed, “but only with respect to issues to be determined in proceedings concerned with the competence of the patient to stand trial[]”). The defense, prosecution, and court may present additional relevant evidence at the hearing. MCL 330.2030(3).
See SCAO Form MC 205, Finding and Order on Competency, for the possible findings and orders upon conclusion of a competency hearing. If the defendant is found incompetent to stand trial, the court must determine whether there is a substantial probability that, if provided treatment, the defendant will attain competence to stand trial within 15 months or within a period of one-third of the maximum sentence the defendant could receive if convicted of the offense, whichever is less. MCL 330.2031; MCL 330.2034(1).
“Absent a hearing at which the prosecutor [can] present evidence regarding [a] defendant’s ability to attain competence,” a court may not “render[] any decision regarding [the] defendant’s continued incompetence.” People v Davis (Demond), 310 Mich App 276, 294 (2015) (citing MCL 330.2030(2) and holding that the trial court erred in determining, based solely on the examiner’s report, that the defendant would likely not achieve competency within the statutory period).
The court may direct the prosecutor to file a petition asserting that the defendant requires treatment if the court concludes there is not a substantial probability that the defendant will attain competence with treatment during the required time period. MCL 330.2031; see MCL 330.2034(1). If the court determines that there is a substantial probability that treatment will enable the defendant to attain competency, the court may order treatment and commit the defendant to the custody of the Department of Mental Health for that purpose. MCL 330.2032(3). The court must receive treatment reports as required by MCL 330.2038. The court is required to redetermine the issue of the defendant’s competency to stand trial after the receipt of each report, unless the defendant waives a hearing and redetermination, or whenever deemed appropriate by the court. MCL 330.2040(1).
The defendant may not be detained in excess of 15 months or a term longer than one-third of the sentence possible for conviction of the offense, whichever is less, or after charges against the defendant have been dismissed. MCL 330.2034(1).
8.Motions and Evidence Preservation During Defendant’s Incompetence
If the defendant’s presence is not essential to a fair hearing and decision, pretrial motions must be heard and decided while a defendant is incompetent. MCR 6.125(F); MCL 330.2022(2).
MCL 330.2022(3) provides:
“When it appears that evidence essential to the case the defense or prosecution plans to present might not be available at the time of trial, the court shall allow such evidence to be taken and preserved. Evidence so taken shall be admissible at the trial only if it is not otherwise available. Procedures for the taking and preserving of evidence under this subsection, and the conditions under which such evidence shall be admissible at trial, shall be provided by court rule.”
9.Dismissal and Reinstatement of Charges
If a defendant is determined to be incompetent to stand trial, the charges must be dismissed when the prosecutor notifies the court of his or her intention not to prosecute the case, or after 15 months have passed since the date on which the defendant was originally determined incompetent to stand trial. MCL 330.2044(1). The 15-month period is calculated on a total time basis rather than on a continuous basis; “a defendant may not be committed, by reason of incompetence to stand trial on criminal charges, for periods totaling fifteen months.” People v Miller (Willie), 440 Mich 631, 633, 641-642 (1992) (emphasis added).
“MCL 330.2044 ‘is the procedural vehicle for enforcing a defendant’s right not to be confined solely because of incompetency[,]’” and “MCL 330.2044(1) provides only two circumstances meriting a trial court’s dismissal of the criminal action: (a) upon notification by the prosecution of its intent to drop the charges and (b) if the defendant remains incompetent to stand trial 15 months after the original incompetency ruling.” Davis (Demond), 310 Mich App at 295, quoting Miller (Willie), 440 Mich at 636. Accordingly, a court lacks the statutory authority to dismiss a case under MCL 330.2044(1) over the prosecutor’s objections where “15 months [have] not elapsed since the [court’s] original incompetency determination.” Davis (Demond), 310 Mich App at 278, 295. Additionally, a delay in beginning a defendant’s treatment is an insufficient basis for a finding that the defendant is unlikely to attain competence; rather, under MCL 330.2032, the “court’s focus must be ‘whether, if provided a course of treatment, a substantial probability exists that a defendant found to be incompetent will attain competence within the time limit established[.]’” Davis (Demond), 310 Mich App at 304 (quoting Miller (Willie), 440 Mich at 638, and holding that the trial court erred in dismissing the charges against the defendant, without a hearing, based on a “four-month delay between being adjudged incompetent to stand trial and beginning treatment[]”).
If the charges were dismissed under MCL 330.2044(1)(b) (i.e., on the basis that 15 months had elapsed after the date on which the defendant was originally determined incompetent to stand trial), charges may be reinstated against a defendant as follows:
•If the crime charged was punishable by a life sentence, the prosecutor may at any time petition the court for permission to refile the charges. MCL 330.2044(3).
•If the crime charged was not punishable by a life sentence, the prosecutor may, within the period of time after the charges were dismissed equal to one-third of the maximum sentence that the defendant could receive on the charges, petition the court for permission to refile the charges. MCL 330.2044(3).
MCL 330.2044(4) provides:
“The court shall grant permission to again file charges if after a hearing it determines that the defendant is competent to stand trial. Prior to the hearing, the court may order the defendant to be examined by personnel of the center for forensic psychiatry or other qualified person as an outpatient, but may not commit the defendant to the center or any other facility for the examination.”
A trial court’s failure to dismiss charges against a defendant under MCL 330.2044(1)(b) because a period of 15 months has elapsed is a procedural violation that “does not deprive the trial court of jurisdiction[;] nor does a violation of [MCL 330.2044(1)(b)], standing alone, furnish a basis on which to reverse an otherwise valid conviction.” Miller (Willie), 440 Mich at 633, 636. Rather, under MCL 330.2044(3)-(4), “reversal of a conviction would be warranted in respect to nonlife offenses only where the time lapse from initial adjudication of incompetence exceeds one[-]third of the maximum sentence or causes prejudice to the defendant’s substantive rights.” Miller (Willie), 440 Mich at 636-637, 642-643 (holding that although the trial court erred in denying the defendant’s motions to dismiss under MCL 330.2044(1)(b) where he had been adjudicated incompetent for a total of 26 months, the defendant’s conviction could not be reversed on that basis; because MCL 330.2044(3)-(4) would have permitted the refiling of charges against the defendant had the trial court dismissed them as required under MCL 330.2044(1)(b), the defendant suffered no prejudice to his substantive rights).
10.Use of Competency Evidence for Other Purposes
MCL 330.2028(3) provides:
“The [examiner’s] opinion concerning competency to stand trial derived from the [competency] examination may not be admitted as evidence for any purpose in the pending criminal proceedings, except on the issues to be determined in the hearings required or permitted by [MCL 330.2030 and MCL 330.2040]. The foregoing bar of testimony shall not be construed to prohibit the examining qualified clinician from presenting at other stages in the criminal proceedings opinions concerning criminal responsibility, disposition, or other issues if they were originally requested by the court and are available. Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation.”
See also MCL 330.2030(3) (providing that the written examiner’s report is inadmissible for any purpose in the pending criminal proceeding other than determining competence).
The trial court’s initial decision regarding whether further inquiry is necessary due to a bona fide doubt as to the defendant’s competence is reviewed for an abuse of discretion. Kammeraad, 307 Mich App at 138. Likewise, the ultimate “‘determination of a defendant’s competence is within the trial court’s discretion[.]’” Id. (citation omitted).
Committee Tip:
Courts sometimes confuse the concepts of competency and criminal responsibility. Competency, as discussed above, addresses the defendant’s current understanding of the nature of the proceedings against him or her and his or her ability to assist in presenting a defense. The concept of criminal responsibility, as discussed in the following subsections, addresses whether the defendant was legally insane, at the time of the offense, as a result of mental illness or intellectual disability.
B.Insanity and Criminal Responsibility
“It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the offense.” MCL 768.21a(1). A person “is legally insane if, as a result of mental illness . . . or as a result of having an intellectual disability,” he or she “lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law.” MCL 768.21a(1).
Insanity is an affirmative defense for which the defendant has the burden of proof by a preponderance of the evidence. MCL 768.21a(1); MCL 768.21a(3). Although the prosecution must still prove each element of the offense beyond a reasonable doubt, it “is not required to rebut an affirmative defense.” People v Haynie, 327 Mich App 555, 564 (2019), rev’d in part on other grounds 505 Mich 1096 (2020),4 citing People v Mette, 243 Mich App 318, 330 (2000). Whether a defendant has shown that he or she is insane is a question for the jury. Haynie, 327 Mich App at 564. On appeal, the determination as to whether the defendant met the burden of proof during a jury trial will be reviewed de novo – as a sufficiency of the evidence issue. Id.
“[I]nsanity is a defense to all crimes, including general intent and strict liability offenses.” People v Moore, 497 Mich 1043, 1043 (2015) (citing MCL 768.21a and noting that the Court of Appeals had misinterpreted People v Carpenter, 464 Mich 223 (2001), “in stating that insanity is not a defense to general intent crimes”).
A defendant in a felony case must file and serve on the court and the prosecuting attorney a notice of his or her intention to assert the defense of insanity not less than 30 days before trial, or at another time as directed by the court. MCL 768.20a(1). If the defendant fails to file and serve the written notice prescribed in MCL 768.20a, the court must exclude evidence offered by the defendant for the purpose of establishing the defendant’s insanity. MCL 768.21(1).
2.Examinations, Experts, and Reports
If the defendant serves a notice of intent to assert an insanity defense, he or she must be referred for an examination by personnel of the Center for Forensic Psychiatry, or by other qualified personnel, “for a period not to exceed 60 days from the date of the order.” MCL 768.20a(2). See SCAO Form MC 206, Order for Evaluation Relative to Criminal Responsibility.
The defendant must fully cooperate with the examination. MCL 768.20a(4). The failure to cooperate, if established at a hearing prior to trial, bars any testimony relating to the insanity defense. Id. MCL 768.20a(4) does not unconstitutionally infringe on a defendant’s constitutional right to present a defense, and it is not unconstitutionally vague. People v Hayes, 421 Mich 271, 274-275, 283, 288 (1984).
Both the prosecution and defense may obtain examinations from independent examiners of their own choosing. MCL 768.20a(3). The defendant must notify the prosecuting attorney at least five days before such an independent evaluation. Id. On a showing of good cause, a court may order the county to pay for an indigent defendant’s independent psychiatric evaluation. Id.
Any examiner, including an independent examiner, must prepare and submit to both parties a written report. MCL 768.20a(6).
MCL 768.20a(5) provides:
“Statements made by the defendant to personnel of the center for forensic psychiatry, to other qualified personnel, or to any independent examiner during an examination shall not be admissible or have probative value in court at the trial of the case on any issues other than his or her mental illness or insanity at the time of the alleged offense.”
See also People v Toma, 462 Mich 281, 292-293 (2000) (the statutory prohibition against using a defendant’s statement to a mental health professional “is a clear expression by the Legislature that these statements cannot be admitted at trial except on the issue of insanity[]”).
“Where expert testimony is presented in support of an insanity defense, the probative value of the expert’s opinion depends on the facts on which it is based.” People v Lacalamita, 286 Mich App 467, 470 (2009). “Further, a trial court must generally defer to a jury’s determination, unless it can be said that directly contradictory testimony was so far impeached that it was deprived of all probative value or that the jury could not believe [the testimony], or [the testimony] contradicted indisputable physical facts or defied physical realities[.]” Id. (quotation marks and citations omitted; first and second alterations in original).
The insanity defense is an affirmative defense.5 MCL 768.21a. MCL 768.21a(1) sets forth the test for criminal insanity:
“It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the offense. An individual is legally insane if, as a result of mental illness . . . , or as a result of having an intellectual disability . . . , that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or having an intellectual disability does not otherwise constitute a defense of legal insanity.”6
“‘Insanity by definition is an extreme of mental illness’”; “one must be mentally ill before he [or she] can be found insane, but the converse is not true.”People v Ramsey, 422 Mich 500, 513 (1985) (opinion by Brickley, J.), quoting People v Fultz, 111 Mich App 587, 590 (1981).
Determining whether a defendant is legally insane is a two-step process: First, it must be determined whether the defendant has proven by a preponderance of the evidence that he or she was mentally ill and/or intellectually disabled; second, if so, it must be determined whether the defendant has proven by a preponderance of the evidence that he or she lacked the substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct, or to conform that conduct to the requirements of the law. See Ramsey, 422 Mich at 513-514; People v Jackson, 245 Mich App 17, 23-24 (2001); MCL 768.21a(1); M Crim JI 7.11(3)-(6).The phrase in MCL 768.21a, “substantial capacity,” modifies both the cognitive and the volitional functions in an insanity defense. Jackson, 245 Mich App at 20 n 3. See also People v Carpenter, 464 Mich 223, 230-231 (2001).
Trial courts may use the “policeman at the elbow” standard to assess the volitional element of an insanity defense. Jackson, 245 Mich App at 20-22. The policeman at the elbow standard is “one of many avenues of inquiry” the court may allow to determine whether a defendant had substantial capacity to control his or her conduct. Jackson, 245 Mich App at 21.
“[T]he hypothetical [of the policeman at the elbow standard] is directly probative of one dimension of a defendant’s capacity to control his conduct as required by law. Certainly, if credible testimony offered by a defendant establishes that he could not refrain from acting even if faced with immediate capture and punishment, then the defendant would have gone a long way toward establishing that he lacked the requisite substantial capacity to conform to requirements of the law.” Jackson, 245 Mich App at 21 (emphasis added).
4.Intoxication7
“An individual who was under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his or her alleged offense is not considered to have been legally insane solely because of being under the influence of the alcohol or controlled substances.” MCL 768.21a(2); see also People v Carpenter, 464 Mich 223, 231 n 5 (2001) (voluntary intoxication alone is not sufficient to support a defendant’s claim of legal insanity); People v Caulley, 197 Mich App 177, 187, 187 n 3 (1992) (noting that “an individual who is voluntarily intoxicated does not have grounds for an absolute defense based upon his [or her] insanity[,]” with the exception that the defense may apply “if the voluntary continued use of mind-altering substances results in a settled condition of insanity before, during, and after the alleged offense”); M Crim JI 7.10(1); M Crim JI 7.10(3). See also People v Matulonis, 115 Mich App 263, 267 (1982) (“long-term voluntary intoxication resulting in physical brain deterioration could form the basis of a viable insanity defense”).
“Involuntary intoxication is intoxication that is not self-induced and by definition occurs when the defendant does not knowingly ingest an intoxicating substance, or ingests a substance not known to be an intoxicant.” People v Caulley, 197 Mich App 177, 187 (1992) (quotation marks and citation omitted). “[T]he defense of involuntary intoxication is part of the defense of insanity when the chemical effects of drugs or alcohol render the defendant temporarily insane.” Id., citing People v Wilkins, 184 Mich App 443, 448-449 (1990) (defendant who was convicted of vehicular manslaughter claimed he was temporarily insane at the time of the collision as a result of involuntary intoxication caused by the combined effect of alcohol and prescription medication). Involuntary intoxication as a defense requires a defendant to “demonstrate that the involuntary use of drugs created a state of mind equivalent to insanity.” Caulley, 197 Mich App at 187.
The same procedural requirements that apply to an insanity defense also apply to an involuntary intoxication defense8—a defendant must give pretrial notice to the court and the prosecution of his or her intention to raise a defense of involuntary intoxication. See MCL 768.20a(1). Involuntary intoxication may result from the use of prescribed medications and “can constitute a complete defense if the defendant was unexpectedly intoxicated because of the ingestion of a medically prescribed drug.” Caulley, 197 Mich App at 188.
To prove involuntary intoxication in cases involving prescription medication, three things must be established:
•First, the defendant must prove that he or she “[did] not know or have reason to know that the prescribed drug [was] likely to have the intoxicating effect.” Caulley, 197 Mich App 177, 188 (1992).
•Second, the defendant’s intoxication must have been caused by the prescribed drug and not another intoxicant. Id.
•Third, the defendant must show that he or she was rendered temporarily insane as a result of his or her intoxicated condition. Id.
5.Caselaw Discussing Sufficiency of the Evidence
“[T]here was sufficient evidence to support the jury’s determination that defendant was not legally insane at the time of the assault” because the victim “testified that defendant acted normal prior to the assault” and “[t]he verdict show[ed] that the jury . . . did not believe the experts’ opinions that defendant was legally insane at the time of the assault.” People v Haynie, 327 Mich App 555, 568 (2019) (noting that “[i]t is the role of the jury, not this Court, to weigh the evidence and the credibility of witnesses”), rev’d in part on other grounds 505 Mich 1096 (2020).9
6.Psychiatrists and Privileged Communications
Unless the patient has waived the privilege, privileged communications must not be disclosed in criminal cases or proceedings, or in proceedings preliminary to such cases or proceedings, except in the circumstances set out in MCL 330.1750. MCL 330.1750(1); see also MCR 2.314(B). “After claiming the defense of insanity and authorizing the release of medical information, [a] defendant can no longer claim an intent to preserve the sanctity of the physician-patient privilege.” People v Sullivan (John), 231 Mich App 510, 517 (1998).
“When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined [the defendant].” Kansas v Cheever, 571 US 87, 94 (2013) (citation omitted). The Court explained:
“A defendant ‘has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’ . . . [W]here a party provides testimony and then refuses to answer potentially incriminating questions, ‘[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’” Id (citations omitted).
7.Preliminary and Final Jury Instructions and Possible Verdicts
If a defendant asserts a defense of insanity in a criminal action tried before a jury, the court must preliminarily instruct the jury on the definitions of mental illness, intellectual disability, and legal insanity10 immediately before the commencement of testimony, especially expert testimony. MCL 768.29a(1); see M Crim JI 7.9. However, failure to give a preliminary instruction before an offer of testimony on insanity is a nonconstitutional error that is subject to harmless-error review. People v Grant (Andre), 445 Mich 535, 537, 543-554 (1994).
MCL 768.29a(2) provides:
“At the conclusion of the trial, where warranted by the evidence, the charge to the jury shall contain instructions that it shall consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity and shall also contain instructions as to the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty with regard to the offense or offenses charged and, as required by law, any lesser included offenses.”
See M Crim JI 7.11; M Crim JI 7.12. For verdict forms reflecting the possible verdicts set out in MCL 768.29a(2), see M Crim JI 3.25; M Crim JI 3.27; M Crim JI 3.29; M Crim JI 3.31.11
8.Acquittal by Reason of Insanity
The court must immediately commit any person who is acquitted of a criminal charge by reason of insanity to the custody of the Center for Forensic Psychiatry for a period not to exceed 60 days. MCL 330.2050(1). The court must forward to the Center a full report, in the form of a settled record, of the facts concerning the crime the person committed but of which he or she was acquitted by reason of insanity. Id. See SCAO Form MC 207, Commitment Order, Not Guilty by Reason of Insanity.
Within the 60-day period, the Center for Forensic Psychiatry must file a report with the court, prosecuting attorney, and defense counsel. MCL 330.2050(2). The report must contain a summary of the crime the person committed but of which he or she was acquitted by reason of insanity, an opinion as to whether the person meets the criteria of a person requiring treatment or for judicial admission as defined by MCL 330.1401 or MCL 330.1515, and the facts upon which the opinion is based. MCL 330.2050(2).
After receipt of the report, the court may direct the prosecuting attorney to file with the probate court of the person’s county of residence, or of the county in which the criminal trial was held, a petition pursuant to MCL 330.1434 or MCL 330.1516 for an order of hospitalization or an order of admission to a facility. MCL 330.2050(3).
A person who is mentally ill or has an intellectual disability but who is not legally insane may be found guilty but mentally ill of a charged offense. People v Carpenter, 464 Mich 223, 237 (2001).
1.By Trier of Fact
If a defendant asserts a defense of insanity in compliance with MCL 768.20a, the defendant may be found “guilty but mentally ill” if, after trial, the trier of fact finds all of the following: (1) the defendant is guilty beyond a reasonable doubt of an offense; (2) the defendant has proven by a preponderance of the evidence that he or she was mentally ill at the time the offense was committed; and (3) the defendant has not established by a preponderance of the evidence that he or she lacked the substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law. MCL 768.36(1). See also MCL 768.29a(2) (requiring the trial court to instruct the jury, if warranted by the evidence, that it may find the defendant guilty but mentally ill); M Crim JI 3.25; M Crim JI 3.27; M Crim JI 3.29; M Crim JI 3.31. The legislative purpose behind the creation of the guilty but mentally ill verdict was to limit the number of defendants who were improperly being relieved of all criminal responsibility by way of the insanity verdict. Ramsey (Bruce), 422 Mich at 512; People v Stephan, 241 Mich App 482, 491-492 (2000).
M Crim JI 7.12 provides, in part:
“(2) To find the defendant guilty but mentally ill, you must find each of the following:
(3) First, the prosecutor has proven beyond a reasonable doubt that the defendant is guilty of a crime.
(4) Second, that the defendant has proven by a preponderance of the evidence that [he / she] was mentally ill, as I have defined that term for you, at the time of the crime.
(5) Third, that the defendant has not proven by a preponderance of the evidence that [he / she] lacked the substantial capacity either to appreciate the nature and quality or the wrongfulness of [his/her] conduct or to conform [his / her] conduct to the requirements of the law.” (Alterations in original.)
Before accepting a plea of guilty but mentally ill, the court must comply with the requirements of MCR 6.302 (accepting guilty or nolo contendere pleas). MCR 6.303. In addition, “the court must examine the psychiatric reports prepared and hold a hearing that establishes support for a finding that the defendant was mentally ill at the time of the offense to which the plea is entered.” Id. “The reports must be made a part of the record.” Id.
Diminished capacity is not a cognizable defense in Michigan. People v Carpenter, 464 Mich 223, 237 (2001)12; see also People v Abraham, 256 Mich App 265, 271 n 2 (2003). “[The] Legislature, by enacting the comprehensive statutory framework [set out in MCL 768.20a, MCL 768.21a, and MCL 768.36], has . . . conclusively determined when mental incapacity can serve as a basis for relieving one from criminal responsibility[,]” and MCL 768.36(3) “demonstrate[s] [the Legislature’s] policy choice that evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent.” Carpenter, 464 Mich at 237.13
“Intoxication has been defined as a ‘disturbance of mental or physical capacities resulting from the introduction of any substance into the body.’” People v Caulley, 197 Mich App 177, 187 (1992) (citation omitted). Whether and to what extent an intoxication defense may be viable depends on whether the intoxication was voluntary or involuntary. “The characterization of intoxication as either voluntary or involuntary depends upon the facts of each case.” Id.
“Voluntary or self-induced intoxication is caused by substances which the defendant knows or ought to know have the tendency to cause intoxication and which he [or she] knowingly introduced or allowed to be introduced into his [or her] body[.]” People v Caulley, 197 Mich App 177, 187 (1992) (citation and quotation marks omitted).
“‘[T]he enactment of MCL 768.37[] . . . [has] abolished the defense of voluntary intoxication except in one narrow circumstance[.]’” People v Nickens, 470 Mich 622, 631 n 7 (2004) (citation omitted). MCL 768.37 provides, in part:
“(1) Except as provided in [MCL 768.37(2)], it is not a defense to any crime that the defendant was, at that time, under the influence of or impaired by a voluntarily and knowingly consumed alcoholic liquor, drug, including a controlled substance, other substance or compound, or combination of alcoholic liquor, drug, or other substance or compound.
(2) It is an affirmative defense to a specific intent crime, for which the defendant has the burden of proof by a preponderance of the evidence, that he or she voluntarily consumed a legally obtained and properly used medication or other substance and did not know and reasonably should not have known that he or she would become intoxicated or impaired.
MCL 8.9(6) similarly provides:
“It is not a defense to a crime that the defendant was, at the time the crime occurred, under the influence of or impaired by a voluntarily and knowingly consumed alcoholic liquor, drug, including a controlled substance, other substance or compound, or combination of alcoholic liquor, drug, or other substance or compound. However, it is an affirmative defense to a specific intent crime, for which the defendant has the burden of proof by a preponderance of the evidence, that he or she voluntarily ingested a legally obtained and properly used medication or other substance and did not know and reasonably should not have known that he or she would become intoxicated or impaired.”
The Michigan Supreme Court has noted that the near-abolishment of the voluntary intoxication defense “‘has significantly diminished the need to categorize crimes as being either “specific” or “general” intent crimes.’” Nickens, 470 Mich at 631 n 7 (citation omitted).
The Fifth Amendment was not violated when the trial court permitted the prosecution to “introduc[e] evidence from a court-ordered mental evaluation of [the] criminal defendant to rebut [the] defendant’s presentation of expert testimony in support of a defense of voluntary intoxication.” Kansas v Cheever, 571 US 87, 89-90, 98 (2013) (holding that “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence[]”).
“Involuntary intoxication is intoxication that is not self-induced and by definition occurs when the defendant does not knowingly ingest an intoxicating substance, or ingests a substance not known to be an intoxicant.” People v Caulley, 197 Mich App 177, 187 (1992) (citation and quotation marks omitted).
When a defendant asserts that he or she was involuntarily intoxicated at the time of an offense, the defendant has effectively raised an insanity defense; “the defense of involuntary intoxication is part of the defense of insanity when the chemical effects of drugs or alcohol render the defendant temporarily insane.” Caulley, 197 Mich App at 187, citing People v Wilkins, 184 Mich App 443, 448-449 (1990).14 A defendant claiming involuntary intoxication as a defense must “demonstrate that the involuntary use of drugs created a state of mind equivalent to insanity.” Caulley, 197 Mich App at 187. Because the involuntary intoxication defense is evaluated in terms of the insanity defense, the same procedural requirements apply, and a defendant must provide pretrial notice to the court and the prosecution of the intention to assert a defense of involuntary intoxication as prescribed by MCL 768.20a(1). Wilkins, 184 Mich App at 449-450.
Involuntary intoxication may be caused by the use of prescribed medications, and “[s]uch intoxication can constitute a complete defense if the defendant was unexpectedly intoxicated because of the ingestion of a medically prescribed drug.” Caulley, 197 Mich App at 188. To prove involuntary intoxication in cases involving prescription medication, three things must be established:
•First, the defendant must prove that he or she “[did] not know or have reason to know that the prescribed drug [was] likely to have the intoxicating effect.” Caulley, 197 Mich App at 188.
•Second, the defendant’s intoxication must have been caused by the prescribed drug and not another intoxicant. Id.
•Third, the defendant must show that he or she was rendered temporarily insane as a result of his or her intoxicated condition. Id.
Where a defendant has successfully established these three things, the jury must be instructed on the issue of involuntary intoxication and insanity. See id.; see also M Crim JI 7.10(2).