Haw. Pattern Jury Instr. (Criminal) 7.07

The defendant has raised the affirmative defense of

physical or mental disease, disorder or defect excluding

criminal responsibility. Before you may consider this

affirmative defense, you must first determine whether the

prosecution has proven all of the elements of (specify in the

disjunctive charge(s) and any instructed included offense(s))

beyond a reasonable doubt. If you unanimously find that the

prosecution has not proven all of the elements of (specify in

the disjunctive charge(s) and any instructed included

offense(s)) beyond a reasonable doubt, then you must find the

defendant not guilty of that offense(s) without considering the

affirmative defense. If you unanimously find that the

prosecution has proven all of the elements of (specify in the

disjunctive charge(s) and any instructed included offense(s))

beyond a reasonable doubt, then you must consider the

affirmative defense.

It is an affirmative defense to (specify in the disjunctive

charge(s) and any instructed included offense(s)) that, at the

time of the offense, the defendant was not criminally

responsible for his/her conduct.

The defendant is not criminally responsible for his/her

conduct if, at the time of the charged offense(s) and as a

result of a physical or mental disease, disorder or defect, the

defendant lacked substantial capacity either to appreciate the

wrongfulness of his/her conduct or to conform his/her conduct to

the requirements of the law.

A person “lacks substantial capacity” either to appreciate

the wrongfulness of his/her conduct or to conform his/her

conduct to the requirements of the law if his/her capacity to do

so has been extremely limited by physical or mental disease,

disorder or defect. The phrase “lack of substantial capacity”

does not mean a total lack of capacity. It means capacity which

has been impaired to such a degree that only an extremely

limited amount remains. [The term “physical or mental disease,

disorder or defect” does not include an abnormality manifested

only by repeated criminal or otherwise antisocial conduct.]

The affirmative defense of physical or mental disease,

disorder or defect excluding criminal responsibility has two

elements.

These two elements are:

1. That at the time of the charged offense, the defendant

was suffering from a physical or mental disease, disorder, or

defect; and

2. That as a result of such physical or mental disease,

disorder, or defect, he/she lacked substantial capacity either

to appreciate the wrongfulness of his/her conduct or to conform

his/her conduct to the requirements of the law.

The defendant must prove an affirmative defense by a

preponderance of the evidence. This means that the defendant

must prove that it is more likely than not, or more probable

than not, that each element existed. In determining whether the

defendant has proven the affirmative defense by a preponderance

of the evidence, you must consider all of the evidence that has

been presented to you regardless of who presented it.

If you unanimously find that the defendant has proven both

elements of the affirmative defense by a preponderance of the

evidence, then you must find the defendant not guilty of

(specify in the disjunctive charge(s) and any instructed

included offense(s)). If you unanimously find that the

defendant has not proven both elements of the affirmative

defense by a preponderance of the evidence, then you must find

the defendant guilty of (specify in the disjunctive charge(s)

and any instructed included offense(s)).*

If you are unable to reach a unanimous agreement as to

whether the affirmative defense has been proved or not been

proved, then a verdict may not be returned on (specify in the

disjunctive charge(s) and any instructed included offense(s)).

[If the defendant is acquitted on the ground of physical or

mental disease, disorder or defect excluding responsibility, the

court shall make an order as follows:

(a) The court shall order him/her committed to the custody

of the Director of Health to be placed in an appropriate

institution for custody, care, and treatment if the court finds

that he/she presents a risk of danger to himself/herself or

others and that he/she is not a proper subject for conditional

release; or

(b) The court shall order him/her to be released on such

conditions as the court deems necessary if the court finds that

he/she is affected by physical or mental disease, disorder or

defect and that he/she presents a danger to himself/herself or

others, but that he/she can be controlled adequately and given

proper care, supervision, and treatment if he/she is released on

condition; or

(c) The court shall order him/her discharged from custody

if the court finds that he/she is no longer affected by physical

or mental disease, disorder, or defect, or if so affected, that

he/she no longer presents a danger to himself/herself or others

and is not in need of care, supervision, or treatment.

This information on the alternatives available to the court

is given only for the purpose of informing you of the

consequences to the defendant that may result from an acquittal

on the ground of physical or mental disease, disorder or defect

excluding responsibilities. These consequences must not in any

way influence your decision.]

*Modification of this sentence is required if any defense in

addition to insanity is submitted to the jury.