Conn. Crim. Jury Instr. 2.9-2

In this case, evidence has been introduced bearing on the affirmative defense of lack of criminal

capacity due to mental disease or defect.1 This requires, then, that I instruct you on the law of

the affirmative defense of mental disease or defect. Our law does not use the term “insanity” and

I request that you put it, and any connotations it may carry with it, out of your minds.

If you find that the state has proved all the elements of the crime charged, namely <insert crime

charged>, your task will not be over. You must then go on to decide whether the defendant has

proved the affirmative defense of lack of capacity due to mental disease or defect.

Our law on the affirmative defense of mental disease or defect, as it applies to this case, provides

as follows: “In any prosecution for an offense, it shall be an affirmative defense that the

defendant, at the time (he/she) committed the proscribed act or acts, lacked substantial capacity,

as a result of mental disease or defect, either to appreciate the wrongfulness of (his/her) conduct

or to control (his/her) conduct within the requirements of the law.” The term “mental disease or

defect,” does not include an abnormality manifested only by repeated criminal or otherwise

antisocial conduct [or pathological or compulsive gambling].

Before I discuss the meaning of the statute with you, I want to discuss the burden of proof on this

issue. In a criminal case, the burden of proof is on the state to prove the defendant guilty beyond

a reasonable doubt. However, because the defense of mental disease or defect involves what is

known as an affirmative defense, the defendant must prove the existence of a lack of capacity

due to mental disease or defect. The defendant has the burden of proving this affirmative

defense.

The defendant’s burden of proof on this issue is different from and is less than the state’s burden

of proof on the elements of the crime charged. The defendant does not have to establish this

affirmative defense beyond a reasonable doubt. The defendant’s burden of proof on this

affirmative defense is by the standard known as “a preponderance of the evidence.”

Proof by a preponderance of the evidence means, considering all the evidence fairly and

impartially, enough evidence as produces in your minds a reasonable belief that what is sought to

be proven is more likely true than not true. This means that you take all of the evidence that has

been offered on this issue by both the defendant and the state and weigh and balance it. If the

better and weightier evidence inclines in the defendant’s favor, then (he/she) has sustained

(his/her) burden of proving (his/her) affirmative defense of lack of capacity due to mental disease

or defect by a preponderance of the evidence.

The elements of the affirmative defense of mental disease or defect are: 1) that at the time of the

offense, the defendant had a mental disease or defect, and 2) that as a result of that mental

disease or defect, (he/she) lacked the substantial capacity either to appreciate the wrongfulness of

(his/her) conduct or to control (his/her) conduct within the requirements of the law.

Element 1 - Mental disease or defect

The first element involves the defendant’s condition at the time of the offense. You must focus

on the defendant’s mental condition at the time of the offense. You must consider this question:

“what was (his/her) mental condition at that time?” You may consider (his/her) mental condition

at times before and after the time of the offense to the extent that (his/her) mental condition

before and after bears upon and tends to throw light on (his/her) mental condition at the time of

the commission of the acts charged against (him/her). The law concerns itself specifically with

(his/her) mental state at the time of the commission of the offense, and whether at that time

(he/she) had a mental disease or defect.

The statute does not define the term “mental disease or defect,” except to say that this term does

not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct

[or pathological or compulsive gambling]. Thus if you find that the defendant had an

abnormality that was evidenced only by repeated criminal or antisocial conduct [or pathological

or compulsive gambling], and was not manifested or evidenced by anything else, that would not

be a mental disease or defect within the meaning of the statute, and you would go no further in

considering this affirmative defense.

With that limited exception in mind, then, a mental disease or defect includes any abnormal

condition of the mind that substantially affects mental or emotional processes or substantially

impairs behavior controls. The term “behavior controls” refers to the process and capacity to

regulate and control one’s conduct and actions. Whether the defendant had a mental disease or

defect is a question of fact for you to decide on the basis of all the evidence, bearing on that

issue. You are not bound by medical definitions, conclusions or opinions as to what is or is not a

mental disease or defect. What psychiatrists or psychologists may or may not consider to be a

mental disease or defect for clinical purposes may or may not be the same as a mental disease or

defect for the purpose of this affirmative defense. You are entitled to accept or reject, in whole

or in part, the evidence of the experts as to whether the defendant had a mental disease or defect.

The decision whether to reject an expert’s testimony should not be made arbitrarily, however.

Rather, there must be some basis in the evidence before you to support the conclusion that the

evidence of the expert is unworthy of belief.

3 Likewise, you are entitled to consider the

testimony of the non-expert witnesses who observed the defendant’s appearance, behavior,

speech, and actions, at or about the time in question. You may consider this evidence on the

question of whether the defendant had a mental disease or defect, and you are entitled to accept it

or reject it in whole or in part on this issue.

Element 2 - Lack of substantial capacity to appreciate wrongfulness or control conduct The

second element of the defense is that as a result of that mental disease or defect, the defendant

lacked substantial capacity either to appreciate the wrongfulness of (his/her) conduct or to

control (his/her) conduct within the requirements of the law. It is not necessary for the defendant

to prove both that (he/she) lacked capacity to appreciate the wrongfulness of (his/her) conduct

and that (he/she) lacked the capacity to control (his/her) conduct within the requirements of the

law. It is sufficient if (he/she) establishes either. Thus, this element has two alternative parts:

lack of substantial capacity to appreciate wrongfulness, or lack of substantial capacity to control

conduct.

A substantial capacity is a significant or a material capacity, not a minor or inconsequential

capacity. Thus you must first decide whether the defendant’s incapacity was substantial.

The first part of this second element of the affirmative defense is that the defendant lacked

substantial capacity to appreciate the wrongfulness of (his/her) conduct. This means that

(he/she) lacked substantial capacity to understand, both intellectually and emotionally, that

(his/her) actions were wrong. This does not include a person whose faculties were impaired in

some measure but were still sound enough for him to understand that (his/her) conduct was

wrong. Not every mental deficiency or abnormality leaves a person without substantial capacity

to appreciate the wrongfulness of (his/her) conduct. It is only when the mental deficiency or

abnormality is of such degree that the defendant lacks substantial capacity to appreciate that a

particular act or course of conduct was wrong, that this part of the affirmative defense excuses

(him/her) from criminal liability.

[<Include if supported by the evidence of the case:>

A defendant may establish that (he/she) lacked substantial capacity to appreciate the

“wrongfulness” of (his/her) conduct if (he/she) proves that, at the time (he/she) committed the

criminal acts, due to mental disease or defect (he/she) suffered from a misperception of reality

and, in acting on the basis of that misperception, (he/she) did not have the substantial capacity to

appreciate that (his/her) actions were contrary to societal morality, even though (he/she) may

have been aware that the conduct in question was criminal.

In deciding whether the defendant had substantial capacity to appreciate that (his/her) conduct

was contrary to societal morality, you must not limit your inquiry merely to the defendant’s

appreciation that society, objectively speaking, condemned (his/her) actions. Rather, you must

determine whether the defendant maintained a sincere belief that society would condone (his/her)

actions under the circumstances as the defendant honestly perceived them.

A defendant does not truly appreciate the wrongfulness of (his/her) conduct if a mental disease

or defect causes (him/her) both to harbor a distorted perception of reality and to believe that,

under the circumstances as (he/she) honestly perceives them, (his/her) actions do not offend

societal morality, even though (he/she) may also be aware that society has labeled (his/her)

actions criminal. Thus, the defense of lack of capacity due to mental disease or defect could be

proved if, as a result of the defendant’s mental disease or defect, (he/she) sincerely believes that

society would approve of (his/her) conduct if it shared (his/her) understanding of the

circumstances underlying (his/her) actions.

If, however, you find that the defendant had the substantial capacity to appreciate that (his/her)

conduct both violated the criminal law and was contrary to society’s moral standards, under the

circumstances as the defendant honestly perceived them, then you may not find that the

defendant lacked substantial capacity to appreciate the wrongfulness of (his/her) conduct simply

because, as a result of mental disease or defect, (he/she) elected to follow (his/her) own personal

moral code.]

The second part of the second element of the affirmative defense is that the defendant lacked

substantial capacity to control (his/her) conduct within the requirements of the law. This part of

the defense relieves a person from criminal liability if (his/her) mental disease or defect results in

a lack of substantial capacity to keep (his/her) conduct within the requirements of the law even

though (he/she) may appreciate its wrongfulness. This portion of the defense, in order to

succeed, requires the defendant to prove that (he/she) had an inability to keep (his/her) conduct

within the requirements of the law. Therefore, a person whose faculties are impaired, but still is

able to control (his/her) conduct cannot claim a lack of capacity. It is only when a person lacks

substantial capacity to keep (his/her) conduct under control, and thus keep it within the

requirements of the law that this part of the affirmative defense excuses (him/her) from criminal

liability.

You have heard the evidence presented as well as the arguments of counsel. It is for you to

determine whether the defendant has established this affirmative defense by a preponderance of

the evidence.

There are three possible verdicts that you can reach on these charges. If you have unanimously

found that the state has proved beyond a reasonable doubt all the elements of the crime charged,

and the defendant has failed to prove by a preponderance of the evidence the affirmative defense

of lack of capacity, your verdict would be guilty. If you have unanimously found that the state

has proved beyond a reasonable doubt all the elements of the crime charged, and the defendant

has proved the affirmative defense of lack of capacity by a preponderance of the evidence, your

verdict would be not guilty by reason of lack of capacity due to mental disease or defect. If you

have unanimously found that the state has failed to prove beyond a reasonable doubt all the

elements of the crime charged, you would not even consider the affirmative defense of lack of

capacity, and your verdict in that instance would be not guilty.

Consequences

<Include unless the defendant specifically objects:>

I must also inform you of the consequences for the defendant if (he/she) is found not guilty by

reason of lack of capacity due to mental disease or defect, and of the applicable confinement and

release provisions of the law. A defendant who has been found not guilty by reason of lack of

capacity due to mental disease or defect is referred to as an acquittee.

The confinement provision requires the court to commit the acquittee to the commissioner of

mental health and addiction services for temporary confinement in a state hospital for an

examination to determine (his/her) mental condition. Within forty-five days of the order of

commitment, the superintendent of that hospital must file a report concerning the mental

condition of the acquittee with the court.

After receipt of this report, either party will have an opportunity to have another examination of

the acquittee. The court will conduct a hearing to determine the mental condition of the

acquittee, with the primary concern being the protection of society. After the court hears the

evidence, the court will determine if the acquittee should be confined, conditionally released or

discharged. A finding that the acquittee should be confined or conditionally released will result

in an order committing the acquittee to the psychiatric security review board for confinement in a

state mental institution for custody, care and treatment pending a hearing by the psychiatric

security review board within ninety days of the order. This court shall fix a maximum period of

confinement authorized for the crime for which (he/she) was found not guilty by reason of lack

of capacity due to mental disease or defect. If the court determines that a conditional release is

warranted, the court shall so recommend to the psychiatric security review board. However, if

the evidence indicates that the defendant is not a threat to (himself/herself) or others, and that the

protection of society would not be adversely affected by (his/her) release, the court may

discharge the acquittee from further custody.

If there are changes in the acquittee’s condition from the first report, the court will hold another

hearing to determine whether to continue the acquittee’s commitment, to conditionally release

(him/her) or to discharge (him/her). The law provides that if the acquittee is again confined to a

state hospital, the psychiatric security review board retains jurisdiction over (him/her), and

during (his/her) period of confinement the superintendent of the state hospital will have to report

to the board at least every six months as to (his/her) condition.

If conditions change, the board could, on its own, conditionally release (him/her), or recommend

to the court that (he/she) be released unconditionally. The court, during the course of any

commitment of a person found not guilty by reason of lack of capacity due to mental disease or

defect, always maintains supervision of that person. At any time, the superintendent of the

mental hospital may recommend to the board that the acquittee be released. This will result in a

hearing before a judge. In summary, the law provides that there be an initial commitment and

hearing, and, depending on the evidence presented, the acquittee will either be discharged or

committed. If the acquitted is committed, this decision will be reviewed after ninety days, and

every six months after that, as the intention is to hold someone only until such point as (he/she)

is no longer a danger to (himself/herself) or others, and that society is in fact protected.

Conclusion

That concludes the court’s instruction with reference to the defense of mental disease or defect.

1 See General Statutes § 53a-12; State v. Joyner, 225 Conn. 450 (1993).

2 General Statutes § 53a-13 (c). The court in United States v. Brawner, 471 F.2d 969, 992-94

(D.C. Cir. 1972), held that the trial court should consider this language, referred to as the

“caveat,” in ruling on the admissibility of evidence of mental disease, but should not use it to

instruct the jury; see also Commentary to Model Penal Code § 4.01, p. 174, n.29. However, the

court in Bethea v. United States, 365 A.2d 64, 80- 81, n.36 (D.C. 1976), cert. denied, 433 U.S.

911, 97 S. Ct. 2979, 53 L. Ed. 2d 1093 (1977), stated that “it is vastly preferable to treat the

problem with a jury instruction, rather than to adopt the concept . . . as a rule of evidence.”

3 In State v. Weathers, 339 Conn. 187, 210 (2021), the Supreme Court reaffirmed the well-settled

rule “that the trier of fact is not bound to accept a defense expert’s opinion on insanity, even

when the state has presented no rebuttal expert.” It emphasized, however, that “[t]he trier’s

freedom to discount or reject expert testimony does not . . . allow it to arbitrarily disregard,

disbelieve or reject an expert’s testimony in the first instance. . . . [When] the [trier] rejects the

testimony of [an] . . . expert, there must be some basis in the record to support the conclusion

that the evidence of the [expert witness] is unworthy of belief.” (Emphasis in original; internal

quotation marks omitted.) Id., 211-12; see also id., 212 n.15.

4 “[A] defendant is entitled to an instruction defining wrongfulness in terms of societal morality

when, in light of the evidence, the distinction between illegality and societal morality bears upon

the defendant’s insanity claim. . . . [M]ost cases in which the insanity defense is raised involve

crimes sufficiently serious such that society’s moral judgment regarding the accused’s conduct

will be identical to the legal standard reflected in the applicable criminal statute. . . . Thus, it will

be the unusual case in which the distinction between wrongfulness and criminality [will] be

determinative. . . .” (Citations omitted; internal quotation marks omitted.) State v. Cole, 254

Conn. 88, 102-03 (2000).

In State v. Wilson, 242 Conn. 605 (1997), the court concluded “that the defendant was entitled to

receive an instruction properly defining the term ‘wrongfulness’ and, further, that the trial court’s

failure to give such an instruction was harmful.” Id., 611. In State v. Cole, supra, however, the

court held that the defendant was not entitled to an instruction defining the term “wrongfulness.”

Id., 106. “Consistent with [the court’s] holding in Wilson, a defendant is entitled to an

instruction defining wrongfulness in terms of societal morality when, in light of the evidence, the

distinction between illegality and societal morality bears upon the defendant’s insanity claim.”

Id., 102. “In contrast to Wilson, this is not a case in which the distinction between illegality and

morality bears upon the defendant’s insanity defense.” Id., 103.

5 State v. Wilson, supra, 242 Conn. 622-23. “This formulation appropriately balances the

concepts of societal morality that underlie our criminal law with the concepts of moral

justification that motivated the legislature’s adoption of the term ‘wrongfulness’ in our insanity

statute.” Id., 623.

6 General Statutes § 54-89a. The language in this part of the instruction is substantially what was

approved in State v. Cole, 50 Conn. App. 312 (1998), aff’d on other grounds, 254 Conn. 88

(2000).