Invested with a Strange Authority

A Guide to the Insanity Defense in Tennessee

“Old scarred marble floors in a cold white corridor. A room where the mad sat at their work. To Suttree they seemed like figures from a dream, something from the past . … He’d never been among the certified and he was surprised to find them invested with a strange authority, like folk who’d had to do with death some way and had come back, something about them of survivors in a realm that all must reckon with soon or late.”1                 — Cormac McCarthy

Background

Insanity is a legal term of art and not a medical diagnosis.2 In Tennessee, the insanity defense is codified at Tennessee Code Annotated section 39-11-501 which states in full:

(a) It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the defendant’s acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

(b) As used in this section, “mental disease or defect” does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

Subsection (a) is the operative part of the statute. Subsection (b) is designed to deny the insanity defense “to psychopaths, i.e., those repeat offenders without other medically discernible symptoms.”3 Subsection (c) addresses the scope of expert witness testimony with respect to the insanity defense.

The original version of section 39-11-501 was modeled on the standard found in the American Law Institute’s Model Penal Code that had previously been adopted by the Tennessee Supreme Court.4 However, section 39-11-501 was significantly amended in 1995 and has not been amended since.5 The current version of section 39-11-501 was “patterned after and virtually identical to the federal Insanity Defense Reform Act of 1984.”6

The Insanity Defense Reform Act of 1984, which was designed to “tighten the traditional insanity rule,” was enacted in response “to a large public outcry” following the acquittal by reason of insanity of John Hinckley Jr. for the attempted assassination of President Ronald Regan.7 Likewise, “[t]he 1995 amendment [of section 39-11-501] was an obvious expression of legislative intent to restrict the defense of insanity.”8 As such, any caselaw involving a pre-July 1, 1995, offense should be considered highly suspect even though such caselaw still appears in treatises and annotations to section 39-11-501.

Procedural Prerequisites

Pursuant to Tennessee Rule of Criminal Procedure 12.2, a defendant who intends to assert the insanity defense at trial must “notify the district attorney general in writing and file a copy of the notice with the [trial court] clerk.”9 The State is not required to make “a triggering request.”10  Instead, “[t]he burden is upon the defendant to give notice of any defense based upon [a] mental condition.”11 The notice must “be given within the time provided for the filing of pretrial motions or at such later time as the court may direct.”12 Rule 12.2 gives the trial court the discretion to “allow the defendant to file the notice late, grant additional trial preparation time, or make other appropriate orders” when “cause [has been] shown.”13 Failure to comply with the written notice requirement bars the defendant from raising the insanity defense at trial.14

Rule 12.2 also requires that written notice be provided to the district attorney general and a copy filed with the trial court clerk if the defendant “intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of his or her guilt.”15 This is because “lack of notice about the defendant’s mental state may seriously disadvantage the district attorney general in preparing possible rebuttal proof.”16 This notice must also be given “within the time provided for the filing of pretrial motions or at such later time as the court may direct.”17 The trial court “may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant’s mental condition” if the defendant fails to comply with the notice requirement.18
In addition to the notice requirements, the trial court “may order the defendant to submit to a mental examination by a psychiatrist or other expert designated in the court order” upon motion of the district attorney general.19 Statements of the defendant made “in the course of any examination conducted under” Rule 12.2(c), as well as testimony about those statements, are not “admissible against the defendant in any criminal proceeding, except for impeachment purposes or on an issue concerning a mental condition on which the defendant has introduced testimony.”20 The trial court may exclude the testimony of the defendant’s expert witness if the defendant “does not submit to an examination ordered under Rule 12.2(c).”21 Given the harshness of its penalties, Rule 12.2 should be closely examined and followed if there is a possibility that the defendant’s mental condition will be an issue at trial.

Elements of the Insanity Defense

The elements of the insanity defense found in the current version of section 39-11-501 are as follows: “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the defendant’s acts.”22 Put another way, the elements of the insanity defense are that the defendant, at the time of the offense, (1) suffered from a severe mental disease or defect, and as a result (2) was unable to appreciate either (a) the nature or (b) the wrongfulness of their acts.

The first element is that, at the time of the offense, the defendant suffered from a severe mental disease or defect. The 1995 amendment to section 39-11-501 added the requirement that the mental disease or defect be “severe.”23 What constitutes a severe mental disease or defect is not defined by the statute. However, examples from caselaw include schizophrenia,24 delusional disorder,25 bipolar disorder with psychotic episodes,26 schizoaffective disorder,27 brief psychotic disorder,28 moderate mental retardation,29 and major depression.30 In most cases, this element will not be disputed at trial.31

Instead, the outcome of an insanity defense case will usually turn on whether the defendant has established the second element of the defense, that the defendant was unable to appreciate either the nature or the wrongfulness of their acts. Whether the defendant “understood the nature of his actions or … the wrongfulness of his actions” are “two separate prongs,” and “a defendant need only prove one prong to be successful in his defense.”32 The inability of the defendant to appreciate the nature of their acts is illustrated by the “oft-cited example” of a defendant who strangles their spouse but believes that they are “squeezing lemons.”33 As for the term “wrongfulness,” it is not defined in the statute. 

The Tennessee Pattern Jury Instructions characterize “wrongfulness” as the defendant’s inability “to understand what [they were] doing was wrong.”34 The Tennessee Court of Criminal Appeals has held that this instruction is “a complete and correct charge of the current law concerning an insanity defense.”35 The Tennessee Court of Criminal Appeals has also interpreted the term “wrongfulness” as including both legal and moral wrongfulness.36 Having examined the background and the elements of the current version of the insanity defense, the next sections will address several common issues that arise with it.

The Burden of Proof

The most significant change in the 1995 amendment to section 39-11-501 was to alter the burden of proof for the insanity defense.37 Prior to the 1995 amendment, section 39-11-501 “provided that insanity was simply a ‘defense.’”38 Also under the original version of section 39-11-501, “if the evidence adduced raised a reasonable doubt as to the defendant’s sanity, the burden of proof then fell upon the [S]tate to establish sanity beyond a reasonable doubt.”39 To that end, the State could present “any ‘evidence which [was] consistent with sanity and inconsistent with insanity.’”40
In contrast, the current version of section 39-11-501 provides that insanity “is an affirmative defense to prosecution” and that “[t]he defendant has the burden of proving the defense of insanity by clear and convincing evidence.”41 Section 39-11-501 now “places the burden of establishing [the] affirmative defense [of insanity] squarely on the defendant.”42 While the State “is required to prove all essential elements of a crime beyond a reasonable doubt, sanity is not an element of a crime.”43 As such, the Tennessee Supreme Court has “explicitly reject[ed] the notion that the State must rebut defense proof of insanity with substantial evidence.”44

“In determining whether a defendant is insane, [the trier of fact] is entitled to consider all the evidence offered, including the facts surrounding the crime, the testimony of lay witnesses, and expert testimony.”45 The trier of fact “may not arbitrarily ignore evidence,” but it is “not bound to accept the testimony of experts [when] the evidence is contested.”46 In light of this, the State will likely attempt to counter the defendant’s proof of insanity “by contrary expert testimony, lay witnesses, or vigorous cross-examination designed to undermine the credibility of the defense experts” even though that the State is not required to rebut the defendant’s proof with substantial evidence.47

The current version of section 39-11-501 makes the defendant’s burden of proving insanity exceptionally heavy. This difficulty is illustrated in the caselaw on the insanity defense since the 1995 amendment took effect. For example, the Tennessee Court of Criminal Appeals affirmed a trial court’s rejection of the insanity defense in State v. Holder despite two expert witnesses having testified that the defendant was unable to appreciate the wrongfulness of his conduct.48 Instead, the trial court “relied primarily upon the actions and words of the defendant before, at[,] and after the commission of the offense.”40

Likewise, the Tennessee Supreme Court affirmed a jury’s rejection of the insanity defense in State v. Flake in spite of the fact that four expert witnesses testified that the defendant was unable to appreciate the wrongfulness of his conduct and a fifth expert witness testified that the defendant felt morally justified in his conduct.50 Instead, the court noted that “the facts surrounding the offense suggest[ed] [that] the defendant realized his conduct was wrongful.”51 The court relied on the fact that the defendant shot only the victim, that he fled after the shooting, that he “appeared to realize he had committed a crime” at the time of his arrest, and that he exhibited “no bizarre behavior” at the time of his arrest.52

By contrast, the sole example of a Tennessee appellate court applying the current version of section 39-11-501 of a defendant having satisfied the burden of proof is State v. Kennedy.53 In Kennedy, the jury convicted the defendant of vehicular homicide and three other offenses, but the trial court granted the defendant’s motion for judgment of acquittal on the grounds that she had established insanity by clear and convincing evidence.54 The State appealed and the Tennessee Court of Criminal Appeals affirmed the trial court’s decision.55 In making its decision, the trial court relied on the fact that three experts testified that the defendant suffered from bipolar disorder with psychotic episodes and that she could not appreciate the nature or wrongfulness of her actions, that there was nothing in the defendant’s conduct leading up to the offense to counter that opinion, that the defendant’s statement after the offense “clearly evidence[d] continuing delusion,” and that there was no evidence that the defendant was malingering.56

It is highly unlikely that an appellate court would overturn a trier of fact’s rejection of the insanity defense in an instance when the defense and the State have presented conflicting expert testimony. As illustrated by the cases discussed above, it is still very unlikely that an appellate court would reverse a guilty verdict even when the experts agree in favor of insanity so long as there is evidence in the record countering the defendant’s claim of insanity. The Kennedy opinion provides the only caselaw for defense counsel to favorably compare to a defendant’s case while attempting to distinguish the plethora of unfavorable decisions issued since the 1995 amendment of section 39-11-501.

The Scope of Expert Testimony

Another issue that commonly arises with the insanity defense is the scope of expert testimony. Subsection (c) of section 39-11-501 was added in the 1995 amendment and provides as follows: “No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.”57 Subsection (c) is unusual as it is an aberration from Tennessee Rule of Evidence 704, which provides that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” In fact, “[i]n Tennessee the only ultimate issue about which an expert explicitly cannot offer an opinion is whether the defendant was or was not sane at the time of commission of the criminal offense.”58

The unusual nature of subsection (c) has caused considerable confusion about the scope of expert testimony as it relates to the insanity defense. This is best illustrated by State v. Hank Wise.59 In that case, the defense’s expert witness testified that the defendant “was unable to appreciate the wrongfulness of his conduct at the time of the offense due to his [suffering from] delusional disorder.”60 The State’s expert witness “declined to give an opinion as to whether the [d]efendant could appreciate the wrongfulness of his conduct because he felt that was an issue to be decided by the trier of fact.”61 Neither expert was correct in their interpretation of what was permissible under subsection (c). The defense’s expert “exceeded the scope of permissible testimony” while the State’s expert “unnecessarily” narrowed the scope of his testimony.62

Subsection (c) is construed “narrowly because of the interests at stake” and its unusual nature.63 An expert witness “may testify that the defendant suffered from a severe mental disease or defect.”64 An expert witness “may also state whether the defendant could have appreciated the nature or wrongfulness of his conduct at the time of the offense.”65 However, the expert cannot state “that the severe mental disease or defect operated to prevent the defendant from appreciating the nature or wrongfulness of his conduct.”66 Put another way, an expert witness’s testimony cannot connect the two elements of the insanity defense. To illustrate, an expert witness may testify about everything except for what has been stricken through in the following statement: The defendant, at the time of the offense, (1) suffered from a severe mental disease or defect, and as a result (2) was unable to appreciate either (a) the nature or (b) the wrongfulness of their acts. 

Post-Trial Procedures

In most cases the trier of fact will reject the insanity defense and convict the defendant at the conclusion of trial. On appeal, the standard of review is very deferential to the trier of fact’s verdict. A “verdict rejecting the insanity defense [will be reversed] only if, considering the evidence in the light most favorable to the prosecution, no reasonable trier of fact could have failed to find that the defendant’s insanity at the time of the offense was established by clear and convincing evidence.”67 This standard is similar “to the familiar sufficiency standard which appellate courts apply” when reviewing the sufficiency of the convicting evidence.68 “Where the proof is contested, appellate courts should rarely reverse a jury’s rejection of the insanity defense under this deferential standard of review.”69 This deferential standard of review is likely part of the reason why the State often seeks to put on rebuttal proof even though it has no burden to do so.

On the other hand, should the defendant be found not guilty by reason of insanity, the trial court will order the defendant “to be diagnosed and evaluated” by “the community mental health agency or licensed private practitioner designated …to serve the court.”70 Based upon that evaluation, the trial court can either: (1) release the defendant; (2) release the defendant subject to mandatory outpatient treatment; or (3) have the defendant involuntarily committed.71 However, if the charge was first degree murder “or a Class A felony offense under title 39, chapter 13,” then the trial court must either commit the defendant or release the defendant subject to mandatory outpatient treatment.72

If the defendant is involuntarily committed, due process entitles the defendant to release “when he has recovered his sanity or is no longer dangerous.”73 Tennessee Code Annotated section 33-6-602 provides for release to mandatory outpatient treatment if the defendant “is likely to participate in outpatient treatment with a legal obligation to do so”74 but “not likely to participate … unless legally obligated to do so.” Tennessee Code Annotated section 33-7-706 provides for release to voluntary outpatient treatment if the defendant “is likely to participate in outpatient treatment without being legally obligated to do so.”75 It should be noted that Tennessee Code Annotated section 33-7-303 was amended in 2017 to provided that if the charged offense was first degree murder or a Class A felony from title 39, chapter 13, then a committed defendant can only be released to mandatory outpatient treatment.76

Jason R. Smith is an assistant professor of law at Lincoln Memorial University Duncan School of Law. He was previously a law clerk to Judge D. Kelly Thomas Jr., of the Tennessee Court of Criminal Appeals and a research attorney at Butler, Vines & Babb PLLC in Knoxville. You can follow Smith on Twitter @jrs082 or email him at jason.smith02@lmunet.edu.    

NOTES

1. Cormac McCarthy, Suttree 431 (Vintage International 1992) (1979) (describing the patients at the now-closed Lakeshore Mental Health Institute in Knoxville, Tennessee).
2. See 41 Am. Jur. Proof of Facts 2D 615 Insanity Defense § 1 (Apr. 2018 Update) (noting that insanity “is a legal and not a medical question”); Insanity, Black’s Law Dictionary (10th ed. 2014) (noting that insanity “is a legal, not a medical, standard”).
3. Tenn. Code Ann. § 39-11-501 (2018), Sentencing Comm’n cmts.
4. See Tenn. Code Ann. § 39-11-501 (1989), Sentencing Comm’n cmts.; Graham v. State, 547 S.W.2d 531, 543-44 (Tenn. 1977) (adopting the Model Penal Code standard).
5. Tenn. Code Ann. § 39-11-501 (1995); State v. Holder, 15 S.W.3d 905, 910 (Tenn. Crim. App. 1999) (acknowledging the amendment and comparing the previous and current versions of section 39-11-501).
6. Holder, 15 S.W.3d at 911.
7. Louis Kachulis, Note, “Insane in the Mens Rea: Why Insanity Defense Reform Is Long Overdue” 26 S. Cal. Interdisc. L. J. 357, 360 (2017).
8. Holder, 15 S.W.3d at 910-11.
9. Tenn. R. Crim. P. 12.2(a)(1).
10. Tenn. R. Crim. P. 12.2, Advisory Comm’n cmt.
11. Id.
12. Tenn. R. Crim. P. 12.2(a)(2). Rule 12.2 requires that this notice be provided sooner than Tenn. Code Ann. section 39-11-204(c)(1) which requires written notice of an affirmative defense be provided “no later than ten … days before trial.”
13. Id.
14. Tenn. R. Crim. P. 12.2(a)(3).
15. Tenn. R. Crim. P. 12.2(b)(1) (2018).
16. Tenn. R. Crim. P. 12.2 (2018), Advisory Comm’n cmt.
17. Tenn. R. Crim. P. 12.2(b)(2) (2018).
18. Tenn. R. Crim. P. 12.2(d) (2018).
19. Tenn. R. Crim. P. 12.2(c)(1) (2018).
20. Tenn. R. Crim. P. 12.2(c)(2) (2018).
21. Tenn. R. Crim. P. 12.2(d) (2018).
22. Tenn. Code Ann. § 39-11-501(a) (2018).
23. Tenn. Code Ann. § 39-11-501(a) (1995); Holder, 15 S.W.3d at 910 (recognizing the change in the statutory language).
24. State v. Flake, 114 S.W.3d 487 (Tenn. 2003); Holder, 15 S.W.3d at 905.
25. State v. Hank Wise, No. M2012-02520-CCA-R3-CD, 2014 WL 992102 (Tenn. Crim. App. March 13, 2014).
26. State v. Kennedy, 152 S.W.3d 16 (Tenn. Crim. App. 2004).
27. State v. Colvett, 481 S.W.3d 172 (Tenn. Crim. App. 2014); State v. John Stephen Steele, No. E2006-00039-CCAR3- CD, 2007 WL 2681784 (Tenn. Crim. App. Sept. 13, 2007).
28. State v. Michael Halliburton, No. W2015-02157-CCA-R3-CD, 2016 WL 7102747 (Tenn. Crim. App. Dec. 6, 2016), perm. app. denied (Tenn. Apr. 13, 2017).
29. State v. Ann Marie Thornton Kelly, No. M2001-01054-CCA-R3-CD, 2002 WL 31730874 (Tenn. Crim. App. Dec. 5, 2002).
30. State v. Daryl Keith Holton, No. M2000-00766-CCA-R3-DD, 2002 WL 1574995 (Tenn. Crim. App. July 17, 2002), aff’d, State v. Holton, 126 S.W.3d 845 (Tenn. 2004).
31. See, e.g., Colvett, 481 S.W.3d at 197; Kennedy, 152 S.W.3d at 22; Holder, 15 S.W.3d at 912.
32. State v. Richard Anthony Arriola, No. M2007-00428-CCA-R3-CD, 2009 WL 2733746, at *7 (Tenn. Crim. App. Aug. 26, 2009).
33. LaFave, supra note 8, at § 7.1(b); see also T.P.I.-Crim. 40.16 (2018) (characterizing this prong as a defendant’s inability to understand what they were doing).
34. T.P.I.-Crim. 40.16 (2018).
35. Wise, 2014 WL 992102, at *16 (internal quotation marks omitted) (quoting State v. Brian Val Kelley, No. M2001-00461-CCA-R3-CD, 2002 WL 927610, at *25-26 (Tenn. Crim. App. May 7, 2002)).
36. State v. Robert E. Odle, No. M2014-00349-CCA-R3-CD, 2014 WL 6607013, at *4 (Tenn. Crim. App. Nov. 21, 2014).
37. Holder, 15 S.W.3d at 910.
38. Id.
39. Id.
40. Id.
41. Tenn. Code Ann. § 39-11-501(a) (2018). Evidence is clear and convincing when “there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).
42. State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002).
43. Holder, 15 S.W.3d at 911.
44. Flake, 88 S.W.3d at 554.
45. Id. at 556.
46. Id.
47. Id. at 554.
48. 15 S.W.3d at 909, 911-12.
49. Id. at 912.
50. 88 S.W.3d at 544-48, 556-57.
51. Id. at 556.
52. Id..
53. 152 S.W.3d at 16.
54. 152 S.W.3d at 17.
55. Id.
56. Id. at 22.
57. Tenn. Code Ann. § 39-11-501(c) (1995).
58. State v. Shuck, 953 S.W.2d 662, 663 n.3 (Tenn. 1997); see also Tenn. R. Evid. 704 (2018), 1996 Advisory Comm’n cmt. (noting that
 “[o]ne ultimate issue is outside the scope of expert testimony” and citing section 39-11-501(c)).
59. 2014 WL 992102, at *15-16.
60. Id. at *15.
61. Id.
62. Id. at *16.
63. State v. Perry, 13 S.W.3d 724, 742 (Tenn. Crim. App. 1999).
64. Id.
65. Id.
66. Id.
67. Flake, 88 S.W.3d at 554.
68. Flake, 88 S.W.3d at 554. The two appellate standards of review are “similar but not identical.” Odle, 2014 WL 6607013, at *4 n.2.
69. Flake, 88 S.W.3d at 556.
70. Tenn. Code Ann. § 33-7-303(a)(1) (2018).
71. Tenn. Code Ann. § 33-7-303(b) (2018).
72. Tenn. Code Ann. § 33-7-303(g) (2018). Title 39, chapter 13 contains “offenses against person.”
73. Jones v. United States, 463 U.S. 354, 368 (1983).
74. Tenn. Code Ann.§ 33-6-602(1) (2018). See State v. Kenneth Ryan Mallady, No. M2010-02142-CCA-R3-CD, 2012 WL 76901 (Tenn. Crim. App. Jan. 10, 2012), for a more detailed discussion of section 33-6-602.
75. Tenn. Code Ann. § 33-6-706(2)(C) (2018). See State v. David Cloar, No. E2015-01069-CCA-R3-CD, 2016 WL 4054948 (Tenn. Crim. App. July 27, 2016), for a more detailed discussion of section 33-6-706.
76. Tenn. Code Ann. § 33-7-303(g) (2018). Subsection (g) also provides that the trial court is to review the defendant’s need for outpatient treatment after six months and annually thereafter if mandatory outpatient treatment is deemed to still be necessary.
 

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