Instruction 9.200, Criminal Model Jury Instructions for Use in the District Court

LACK OF CRIMINAL RESPONSIBILITY

If the Commonwealth has proved the elements of the offense

beyond a reasonable doubt, the Commonwealth must also prove

beyond a reasonable doubt that the defendant was criminally

responsible at the time of the alleged offense. Under the law, a

person is not guilty if they lacked criminal responsibility when they

committed the offense. This is sometimes referred to as not guilty by

reason of insanity. There is no burden on the defendant to prove that

they lacked criminal responsibility.

The Commonwealth may meet its burden of proving a defendant

was criminally responsible for their conduct in either of two ways.

The first way is for the Commonwealth to prove beyond a

reasonable doubt that the defendant did not suffer from a mental

disease or defect at the time of the alleged offense.

A mental disease or defect need not fit into a formal medical

diagnosis. It is a legal term, not a medical term. It does not, however,

include an abnormality that presents itself only by repeated criminal

or otherwise antisocial behavior. It is for you to determine from the

evidence whether the defendant had a mental disease or defect at the

time of the alleged offense.

See Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 (2010) ("We have previously

indicated that a judge is not required to define “mental disease or defect” but has discretion to

provide the instructions that are appropriate to the context”); Commonwealth v. Fuller, 421 Mass.

400, 411 (1995) (“This court has declined to impose any obligation on a trial judge to provide a

further explanation of the terms in issue here. . . . Our unwillingness to impose a mandatory

instruction arises not because the term ‘mental disease or defect’ is so clear on its face that such

an explanation would be superfluous. The reason may well be the opposite; the subject is so

complex and obscure that any general explanatory formula is likely to mislead and confuse"). Cf.

Commonwealth v. Mulica, 401 Mass. 812, 816-820 (1988) (mental disease and defect instruction

focusing jury on one particular type of mental disease or defect may have limited jury's

consideration of other types of mental disease or defects and improperly reduced

Commonwealth's burden).

The second way for the Commonwealth to prove a defendant

was criminally responsible for their conduct is for the Commonwealth

to prove beyond a reasonable doubt that, even if the defendant

suffered from a mental disease or defect at the time of the alleged

offense, the defendant nonetheless retained the substantial capacity

to appreciate the wrongfulness or criminality of their conduct and to

conform their conduct to the requirements of the law.

To establish that the defendant had the substantial capacity to

appreciate the wrongfulness or criminality of their conduct, the

Commonwealth must prove beyond a reasonable doubt that the

defendant appreciated – that is, that the defendant knew or

understood in some meaningful way – that their conduct was either

illegal or wrong.

To establish that the defendant had the substantial capacity to

conform their conduct to the law’s requirements, the Commonwealth

must prove beyond a reasonable doubt that any mental disease or

defect that may have existed at the time of the alleged offense did not

deprive the defendant of their ability to behave as the law requires –

that is, to obey the law.

[If there is evidence that the defendant had a mental disease or defect and

consumed drugs or alcohol, continue with Supplemental 1. If not,

continue here]

To summarize, if the Commonwealth proved beyond a

reasonable doubt that the defendant did not have a mental disease or

defect at the time of the alleged offense, the Commonwealth has

satisfied its burden of proving that the defendant was criminally

responsible.

Alternatively, if the Commonwealth proved beyond a reasonable

doubt that, even if the defendant did suffer from a mental disease or

defect at the time of the alleged offense, the defendant nonetheless

retained the substantial capacity to appreciate the wrongfulness or

criminality of their conduct and to conform their conduct to the

requirements of the law, the Commonwealth has satisfied its burden

of proving the defendant was criminally responsible.

Remember that there is no burden on the defendant to prove

that they lacked criminal responsibility at the time of the offense.

Rather, the burden is on the Commonwealth to prove beyond a

reasonable doubt both that the defendant committed the offense, and

that the defendant was criminally responsible at the time that they

committed the offense.

If you have a reasonable doubt whether the defendant

committed any one of the required elements of the alleged offense,

you must find the defendant not guilty. If you have a reasonable doubt

whether the defendant was criminally responsible at the time of the

offense, you must find the defendant not guilty by reason of a lack of

criminal responsibility.

Commonwealth v. McHoul, 352 Mass. 544, 546-55 (1967) (adopting definition of insanity

from Model Penal Code § 4.01[1] [Proposed Official Draft 1962]).

A defense of lack of criminal responsibility may be raised by “‘any evidence which, if

believed, might create a reasonable doubt concerning the defendant’s criminal

responsibility at the time of the [crime].’” Commonwealth v. Mills, 400 Mass. 626, 627

(1987) (quoting Commonwealth v. Laliberty, 373 Mass. 238, 246-47 (1977)). Expert

testimony is not always required to raise such a doubt; the defendant may rely on the facts

of the case, the Commonwealth’s witnesses, the testimony of lay witnesses, or any

combination. Id. at 628. Commonwealth v. Genius, 387 Mass. 695, 697-98 (1982)

(collecting cases on that issue); Blaisdell v. Commonwealth, 372 Mass. 753, 764-65 (1977)

(defendant's psychiatric records; observations of lay witnesses; nature of crime). “This

court’s view has consistently been that ‘[w]here the appropriateness of an insanity

instruction is marginal, the better choice would seem to be to err on the side of giving it. .

. .’” Mills, 400 Mass. at 630 (quoting Commonwealth v. Mattson, 377 Mass. 638, 644

(1979)).

Once the issue of insanity has been raised, the Commonwealth must prove beyond a

reasonable doubt that the defendant was sane at the time of the crime. Commonwealth v.

Lawson, 475 Mass. 806, 811 (2016). The Commonwealth must prove both the defendant’s

substantial capacity to appreciate the wrongfulness of his conduct and his substantial

capacity to conform his conduct to the requirements of the law. Commonwealth v.

Goudreau, 422 Mass. 731, 735 (1996).

The judge may not limit an instruction on lack of criminal responsibility to the specific

medical diagnosis raised by defense psychiatric experts, since the burden of proving sanity

remains on the Commonwealth and the jury is not bound by any particular definition of

“mental disease or defect.” Commonwealth v. Mulica, 401 Mass. 812, 819-20 (1988).

SUPPLEMENTAL INSTRUCTIONS

1. Intoxication and Defense of Lack of Criminal Responsibility

A defendant's lack of criminal responsibility must be

due to a mental disease or defect. Intoxication caused by

the voluntary consumption of (alcohol) (drugs) is not by

itself a “mental disease or defect.” Where a defendant

lacks substantial capacity to appreciate the wrongfulness

of their conduct or to conform their conduct to the law

solely as a result of voluntary intoxication, then the

defendant is criminally responsible for their conduct.

However, the consumption of alcohol or drugs may

trigger or intensify (make worse) a defendant’s preexisting

mental disease or defect. If it does so, and the mental

disease or defect then causes the defendant to lose the

substantial capacity to appreciate the wrongfulness of their

conduct or to conform their conduct to the requirements of

the law, the defendant is not criminally responsible for

their conduct.

[Continue as follows where there is evidence of defendant's knowledge

that consumption of drugs or alcohol would trigger or intensify a mental

disease or defect:]

There is one exception to the principle just stated. A

defendant who loses the substantial capacity I have just

described after consuming drugs or alcohol, who knows or

had reason to know that consumption would trigger or

intensify a mental disease or defect or condition that could

cause them to lack that capacity, is criminally responsible

for their resulting conduct. In deciding what the defendant

had reason to know about the consequences of their

consumption of drugs or alcohol, you should consider the

question solely from the defendant's point of view,

including their mental capacity and past experience with

drugs or alcohol.

But you must keep in mind that where a defendant, at

the time the alleged offense was committed, had a mental

disease or defect that by itself caused the defendant to

lack the required substantial capacity, the defendant is not

criminally responsible for their conduct regardless of

whether they used or did not use alcohol or drugs. That is

true even if the defendant did use alcohol or drugs and the

alcohol or drug use made the symptoms of the defendant’s

mental disease or defect worse, and even if the defendant

knew they would make the symptoms worse.

[Pick up here if there is no evidence of defendant's knowledge that

consumption of drugs or alcohol would trigger or intensify a mental

disease or defect:]

To summarize, in order for the Commonwealth to

meet its burden of proving that the defendant was

criminally responsible at the time the alleged offense was

committed, that is, that the defendant did not lack criminal

responsibility at that time, the Commonwealth must prove

at least one of the following three (four) facts beyond a

reasonable doubt:

One, that the defendant did not suffer from a mental

disease or defect at the time of the alleged offense; or

Two, that even if the defendant did suffer from a

mental disease or defect at the time of the alleged offense,

the defendant nonetheless retained the substantial

capacity to both appreciate the wrongfulness of their

conduct and to conform their conduct to the requirements

of the law; or

Three, that if the defendant lacked the substantial

capacity to appreciate the wrongfulness of their conduct or

to conform their conduct to legal requirements, the

defendant’s lack of such capacity was solely the result of

voluntary intoxication by alcohol or other drugs.(;)

[where there is evidence of defendant's knowledge that consumption of

drugs or alcohol would trigger or intensify a mental disease or defect:]

(or Four) that if the defendant lacked the substantial

capacity I have just described due to a combination of a

mental disease or defect and voluntary consumption of

alcohol or other drugs which the defendant knew or should

have known use of would interact with the defendant’s

mental disease or defect and cause the defendant to lose

such capacity.

If the Commonwealth has failed to prove at least one

of these three (four) facts beyond a reasonable doubt, then

you must find the defendant not guilty by reason of lack of

criminal responsibility.

See Commonwealth v. DiPadova, 460 Mass. 424, 439-40 (2011)

(appendix providing model jury instruction). See also Commonwealth v.

Berry, 457 Mass. 602, 616-18 (2010).

2. Consequences of NGI verdict.

Your decision must be based solely on the evidence

and the law of this case, without regard to the possible

consequences of your verdict. You may not consider

sentencing or punishment in reaching your verdict.

You are, however, entitled to know what happens to a

defendant if found not guilty by reason of a lack of criminal

responsibility.

A judge may order the defendant to be hospitalized at

a mental health facility for a period of observation and

examination. During that period or within sixty days of the

verdict, the district attorney or other appropriate

authorities may petition the Court to commit the defendant

to a mental health facility or to Bridgewater State Hospital,

initially for a period of six months. At the end of the six

months and every year thereafter, the court reviews the

order of commitment. If the defendant is still suffering from

a mental disease or defect and is still dangerous, then the

court will order the defendant to continue to be committed

to the mental facility or to Bridgewater State Hospital.

There is no limit to the number of such renewed orders of

commitments as long as the defendant continues to be

mentally ill and dangerous; if these conditions do continue,

the defendant may remain committed for the duration of

his [or her] life.

If at some point the Court determines that the

defendant is no longer mentally ill and dangerous, the

defendant will be discharged. The district attorney must be

notified of any hearing and the district attorney may be

heard at any such hearing. However, the final decision on

whether to recommit or release the defendant is always

made by the Court.

Commonwealth v. Chappell, 473 Mass. 191 (2015) (Appendix).

See also G.L. c. 123, § 16.

“[W]here the defense of insanity is fairly raised, the defendant on his timely

request, is entitled to an instruction regarding the consequences of a verdict of not

guilty by reason of insanity. Such instruction shall also be given on the request of

the jury, if the defendant does not object thereto.” Commonwealth v. Mutina, 366

Mass. 810, 821 & 823 n.12 (1975). Commonwealth v. Biancardi, 421 Mass. 251,

254 (1995) (reversible error for judge to refuse defendant’s request to instruct jury

on consequences of NGI verdict); Commonwealth v. Loring, 14 Mass. App. Ct.

655, 658-61 (1982) (conviction reversed where instruction given did not adequately

explain court’s role over defendant’s continued commitment).

Such an instruction is not required sua sponte, Commonwealth v. Bannister, 15

Mass. App. Ct. 71, 81 (1983), but may be given sua sponte if the defendant does

not object, Commonwealth v. Callahan, 380 Mass. 821, 826-28 (1980). Callahan,

supra, suggests that a judge should not charge (either sua sponte or in response

to a jury question) about the consequences of an NGI verdict if the defendant

objects to such a charge, but does not indicate whether doing so would be

reversible error. But see Commonwealth v. Robbins, 422 Mass. 305, 312 (1996)

(unwilling to find error where instruction provided an accurate explanation of the

law).