If you find that the government has proven beyond a reasonable doubt all the elements of the crime, you must then determine whether [defendant] has proven by clear and convincing evidence that he/she was legally insane at the time. For you to find [defendant] not guilty only by reason of insanity, you must be convinced that [defendant] has proven each of these things by clear and convincing evidence:
First, that at the time of the crime [defendant] suffered from severe mental disease or defect;
Second, that the mental disease or defect prevented him/her from understanding the nature and quality or wrongfulness of his/her conduct.
Clear and convincing evidence is evidence that makes it highly probable that [defendant] had a severe mental disease or defect that prevented him/her from understanding the nature and quality of wrongfulness of his/her conduct.
You may consider evidence of defendantís mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.
In making your decision, you may consider not only the statements and opinions of the psychiatric experts who have testified but also all of the other evidence. You are not bound by the statements or opinions of any witness but may accept or reject any testimony as you see fit.
You will have a jury verdict form in the jury room on which to record your verdict. You have three choices. You may find [defendant] not guilty, guilty, or not guilty only by reason of insanity. If you find that the government has not proven all the elements of the crime beyond a reasonable doubt, you will find [defendant] not guilty. If you find that the government has proven all the elements of the crime beyond a reasonable doubt and that [defendant] has proven by clear and convincing evidence that he/she was legally insane at the time of the crime, you will find him/her not guilty only by reason of insanity. If you find that the government has proven all the elements of the crime beyond a reasonable doubt and that [defendant] has not proven by clear and convincing evidence that he/she was legally insane at the time of the crime, you will find him/her guilty.
(1) The constitutionality of placing the burden on the defendant to prove insanity is settled. See United States v. Pryor, 960 F.2d 1, 3 (1st Cir. 1992) (citing Leland v. Oregon, 343 U.S. 790 (1952) and Rivera v. Delaware, 429 U.S. 877 (1976)).
(2) A trial judge is not required to instruct a jury on the consequences of a verdict of not guilty by reason of insanity, see United States v. Tracy, 36 F.3d 187, 196 (1st Cir. 1994), cert. denied, 115 S. Ct. 1717 (1995), except under certain limited circumstances, Shannon v. United States, 512 U.S. 573, 587 (1994) such as when a prosecutor or witness has said before the jury that the defendant will go free. Id.; Tracy, 36 F.3d at 196 n.8.
(3) The phrase nature and quality [of defendantís conduct] can be troublesome. It is not apparent what difference, if any, there is between the words nature and quality. But given the lineage of the phrase to at least MíNaghtenís Case, 8 Eng. Rep. 718 (H.L. 1843), and its presence in the governing statute, 18 U.S.C. ß 17, the safer course would be not to truncate the phrase.
A more troublesome issues arises when the defendant raises both the insanity defense and a mens rea defense based on abnormal mental condition. If evidence tends to show that a defendant failed to understand the nature and quality of his/her conduct, that evidence will not only tend to help prove an insanity defense but it will also typically tend to raise reasonable doubt about the requisite culpable state of mind. See Pattern Instruction 5.02. In Martin v. Ohio, 480 U.S. 228, 234 (1987), the Supreme Court held that the trial judge must adequately convey to the jury that evidence supporting an affirmative defense may also be considered, where relevant, to raise reasonable doubt as to the requisite state of mind. This overlap problem may be solved by adequate instructions. Id. But the overlap problem may be avoided by omitting the nature and quality phrase from the insanity instruction unless the defendant wants it.