Del. P.J.I. Crim. No. 5.32

GUILTY, BUT MENTALLY ILL

Another possible verdict that you may consider is "guilty, but mentally ill."

This verdict is appropriate if you determine that, at the time of the conduct charged,

the defendant suffered from a psychiatric disorder, and that disorder either

substantially disturbed the defendant’s thinking, feeling or behavior or left the

defendant with insufficient willpower to choose whether to do the act or not, even if

the defendant was physically capable of refraining from doing the act.

The term "psychiatric disorder" means any mental or psychotic disorder

recognized by the field of psychiatry as affecting a person's behavior, thinking,

feeling or willpower.

The distinction between "not guilty by reason of insanity" and "guilty, but

mentally ill" lies in the degree of mental illness. A person who is "not guilty by

reason of insanity" is so severely mentally impaired that the person lacks substantial

capacity to appreciate the wrongfulness of the criminal conduct. A person who is

"guilty, but mentally ill" is able to appreciate the wrongfulness of the conduct but

nevertheless, due to a psychiatric disorder, exhibits thinking, feeling or behavior that is

substantially disturbed; or the person, due to a psychiatric disorder, lacks sufficient

willpower to choose whether to do or not do a particular act, although the person is

physically capable of refraining from doing it.

To summarize, there are three bases for returning a verdict of "guilty, but

mentally ill" for a defendant who suffers from a psychiatric disorder. The first is

where a defendant’s psychiatric disorder substantially disturbed the defendant’s

thinking, feeling or behavior. The second is where defendant’s disorder substantially

disturbed the defendant’s thinking, feeling or behavior and left the defendant with

insufficient willpower to choose whether to do the act or refrain from doing the act.

The third is where defendant’s disorder left the defendant with insufficient willpower

to choose whether to do the act or refrain from doing the act.

Neither the State nor the defense has the burden of proving that the defendant

is guilty but mentally ill. You, the jury, have the option of returning a verdict of

"guilty, but mentally ill" if you determine that such a verdict is warranted by the

evidence. However, you may render a verdict of "guilty, but mentally ill" only if you

first determine that the State has established, beyond a reasonable doubt, the elements

of the crime.

You may return such a verdict only if you have also determined that the

defendant has not met the burden of establishing the defense of "not guilty by reason

of insanity" by a preponderance of the evidence.

With respect to the charge of first degree murder, you may return a verdict of

“guilty, but mentally ill” only if you also determine that the defendant has not

established the mitigating circumstance of "extreme emotional distress" by a

preponderance of the evidence.