Michigan Insanity Defense – Not Guilty By Reason of Insanity and Guilty but Mentally Ill

One of the more difficult defenses to establish in Michigan is the insanity defense.   To prove legal insanity the Defense must prove by a preponderance of the evidence (show that it is more probable than not true) that the Defendant was, at the time of the alleged offense, legally mentally ill and either lacked the substantial capacity to appreciate the wrongfulness of his or her conduct or unable to conform his or her behavior to the law (legal insanity 2 prong test).

Even though a preponderance of the evidence is not a high burden, juries do not like this defense.  Many people feel that each of us are responsible for our own actions, and there is a fear that the Defendant will not be held responsible or accountable for his or her actions.  One of the instructions of the court for a jury instruction is that lawyers and the Court cannot tell the jury what the possible penalty is for a crime, and a jury might have a mistaken assumption that if a verdict of “not guilty by reason of insanity” (also referred to as NGRI) is reached the Defendant will face no penalty because he or she was acquitted.  There is a fear by juries that the Defendant might pose a danger to the community (especially for a violent crime) and could harm another person without a finding of guilt.

Unfortunately a jury is not told that if a Defendant is found to be “not guilty by reason of insanity”, the Defendant is committed to the Center for Forensic Psychiatry for an initial period of 60 days during which time the Defendant is examined and evaluated regarding his or her mental health condition.  The Center for Forensic Psychiatry has the option to find that no further treatment is needed, which is not a common result.  The more likely result is that a psychiatrist and another medical doctor will determine that further treatment is necessary, and a petition is filed with a probate court to order further in patient treatment.

The Defendant has an opportunity to challenge the hospitalization through a trial in front of a probate Judge or jury.  However, part of those proceedings is a settled record of what allegedly occurred which resulted in the Defendant’s  finding of NGRI which the Judge and/or jury is able to hear.  Before any trial there are evaluations made by Doctors concerning the Defendant’s mental health and need for continuing treatment, and an opportunity for an independent evaluation.  If the Defendant loses at trial, there are periodic chances at later points in time for the Defendant to continue to challenge the hospitalization at trial in probate Court in the same manner.  There is as a NGRI committee at the Center for Forensic Center that has the ability to deescalate patients (allow them to be treated in a less restrictive setting).

The Center for Forensic Center is a place of confinement – patients are not free to leave and they must comply with treatment.  If the jury could be informed of this result, it would probably be more receptive to this defense.  Except for offenses that carry natural life in prison, it is possible that a Defendant could serve more time in custody for a verdict of “not guilty by reason of insanity” than if he or she were convicted as charged.

NGRI findings are not common by the Doctors at the Center for Forensic Psychiatry.  On a recent trial I had, the Doctor testified that it is only found in about 7 percent of the referrals that they receive.  Given that juries are often not receptive to this defense, a finding of NGRI by a jury is not a common trial result.

An option to consider is a bench trial, because the presiding Judge will be aware of the significance of an NGRI finding.  However, in order for a bench trial to take place the Defense, Prosecution, and Judge must all agree to conduct a bench trial.  In order for a Defendant to assert the insanity defense at either a jury or bench trial, he or she needs to be referred to the forensic center for such an evaluation, and provide timely notice that this defense will be asserted.  If the Defendant or Prosecution is not satisfied with the opinion from the evaluating doctor at the Center for Forensic Psychiatry, either side can seek an independent evaluation of the Defendant.

Sometimes the Prosecution and Defense will agree to a finding of NGRI, and a plea agreement will be reached for that resolution.  Sometimes the Prosecution will want a bench trial, but will not fight against the Judge finding of NGRI, because of office politics or because the Prosecutor does not want to have the perception that it agrees with this publicly unpopular result (even though it may be the right result).  Sometimes the Prosecution is really zealous, and will want to contest legal insanity – even when that conclusion is supported by an expert opinion.

In Michigan, the State legislature created another option for a Judge or jury to consider, which is a verdict of “guilty but mentally ill“.  This verdict was created in order to alleviate concerns that there was an abuse of the insanity defense.  This verdict is often more palatable to a jury, because their is a feeling of compromise – the jury assumes that Defendant will be held accountable and get mental treatment.  Again, the jury is not told what “guilty but mentally ill” actually means because the lawyers and Judge are not allowed to tell the jury what the possible penalty for the offense is.

What is “guilty but mentally ill”.  According to Michigan Compiled Law 768.36 it is a finding that it was proven to the Judge or jury beyond a reasonable doubt that the crime was committed by the Defendant, that he or she was mentally ill at the time, but does not find either prong of legal insanity two prong test.  If a Defendant is found “guilty but mentally ill”, the Court imposes any sentence allowable by law.  If the Defendant is sent to prison for his or her crime, the Defendant is supposed to undergo further mental evaluation and receive psychiatric treatment for his or her condition.  The parole board is supposed to receive a report concerning the Defendant’s mental health, chance of recidivism, danger to the community, and need for further treatment.  This may make it harder for the Defendant to obtain parole.  The Defendant must comply with mental health treatment as a condition of parole.  However, it is unlikely that a Defendant will actually receive extensive or proper mental health treatment in prison.  If the Defendant is placed on probation, the length of the probation has to be for 5 years and the Defendant is required to have a psychiatric report sent to the probation department and the Court every 3 months.

It is important to remember that before a Judge or jury even considers an insanity defense, the Prosecution must prove beyond a reasonable doubt that the Defendant committed the alleged crime.  Depending on the charge, the Judge and jury has the opportunity to consider a “lessor included offense”.  For example, if the Defendant was charged with Assault with Intent to Murder, the Judge or jury will likely have the opportunity to consider the lessor crime of Assault with Intent to Cause Great Bodily Harm less than Murder.   The Defense basically argues that the Defendant lacked the intent to commit the crime based on mental illness and legal insanity.   A jury might be receptive to a lessor charge, because with insanity defenses intent is usually the issue, depending on the facts of the case.  Also, the jury may choose to split the difference, or compromise, with a finding of Guilty but Mentally Ill.  There may be equities that a jury feels supports a lessor included offense determination.

The Judge or jury will have 4 possible verdicts when the legal insanity defense is properly raised: Not Guilty; Not Guilty by Reason of Insanity; Guilty but Mentally Ill; Guilty.  These same verdicts also apply to lessor charges that the Judge or jury deliberates on.  Whenever a verdict of Not Guilty by Reason of Insanity is allowed, by Michigan law a verdict of  Guilty but Mentally Ill also must be given.

For any criminal defense involving mental health issues, an experienced criminal defense lawyer such as attorney Daniel Hilf of the law firm Hilf & Hilf, PLC should be employed.  These are difficult cases that require a lot of time, effort, planning, and legal experience to assert and properly litigate.

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