Proposed Jury Instruction for Disposition of Defendant

Proposed Jury Instruction for Disposition of Defendant

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

DISPOSITION OF DEFENDANT AFTER A VERDICT OF
NOT GUILTY BY REASON OF INSANITY IS RETURNED

__________ INSTRUCTION NO. _____
    The Court instructs the jury that the Court shall order a person found not guilty by reason of insanity to be committed in a mental health facility under the jurisdiction of the department of health for the maximum sentence period authorized by law as if the person had been otherwise convicted of the offense charged. During the period of this commitment, the Court shall retain jurisdiction over this person. If this person is released from an in-patient mental health facility while under the jurisdiction of the court, the court may impose such conditions as are necessary to protect the safety of the public. The court may discharge a mentally ill person from the court's period of jurisdiction prior to the expiration of the period of commitment only when the court finds from evidence introduced at a hearing that this person is no longer mentally ill and is no longer a danger to himself or others. However, a person may not be released from the period of jurisdiction of the court when the person's mental illness is in remission solely as a result of medication or hospitalization or other mode of treatment, unless it can be determined within a reasonable certainty that without continued therapy or hospitalization or other mode of treatment, the person's mental illness will make him a danger to himself or others.
    No later than 30 days prior to the release of a person because of the expiration of the court's jurisdiction, if the supervising physician believes that the person's mental illness causes the person to be dangerous to himself or others, the supervising physician shall notify the prosecuting attorney in the county of the court having jurisdiction of such opinion and the basis therefor. Following this notification the prosecuting attorney shall file a civil commitment application against the person. The court shall promptly conduct a hearing after receipt of the supervising physician's notification. At this civil commitment hearing in order for the person to be committed, the court must make findings by clear, convincing and cogent proof that the individual is mentally ill, retarded or addicted and as a result is likely to cause serious harm to himself/herself or others if allowed to remain at liberty. The Court must also find that there are no less restrictive alternatives than commitment appropriate for the individual. If these findings are made, the Court may order the individual to a mental health facility for an indeterminate period. An order for an indeterminate hospitalization period expires at the end of two years unless the Department of Health extends the order prior to expiration. Prior to the expiration, the Department of Health, upon findings based upon an examination of the patient by a physician or a psychologist, may extend the order for further indeterminate hospitalization.
    The involuntarily committed patient cannot be discharged unless the chief medical officer of the mental health facility where the patient is confined makes the determination that the conditions justifying involuntary hospitalization no longer exist, or that the individual can no longer benefit from hospitalization. Therefore, in order for an individual to be released, whether at the expiration of the observation period, or at the expiration of the indeterminate period, there must be a showing based on the sworn statement of the examining physician or the chief medical officer of the mental health facility that any likelihood of the Defendant causing serious harm to himself/herself or to others if allowed to remain at liberty no longer exists.

COMMENT
DISPOSITION OF DEFENDANT AFTER A VERDICT OF
NOT GUILTY BY REASON OF INSANITY IS RETURNED

1.     State v. Daggett. 167 W.Va. 411, 280 S.E. 2d 545 (1981); State v. Milam, 163 W.Va. 752, 260 S.E. 2d 295 (1979).
2.     W.Va. Code §§27-6A-3 and 27-5-1 et seq. W.Va. Code §27-6A-3 was rewritten by the 1995 legislature to provide for commitment of the defendant for the period of time that the defendant could have been received as a sentence. In addition the court retained jurisdiction over the defendant during this time. W.Va. Code §27-6A-4(b) provides for the mechanism by which the court may release the defendant prior to the expiration of the court's period of jurisdiction, and W.Va. Code §27-6A-3(b) provides for additional conditions that may be imposed by the court to protect the safety of the public.
3.     State v. Guthrie, 461 S.E. 2d 163, 183-185 (W.Va. 1995). There is some doubt now as a result of Guthrie whether it is proper for the court to give any instruction that deals with sentence or penalties. A literal reading of Guthrie would suggest that this instruction as to the "disposition of defendant after a verdict of not guilty by reason of insanity" is not permitted.
4.     State v. Smith, 482 S.E. 2d 687, 698-699 (W.Va. 1996). Justice Workman writing for the Court without dissent found that the purpose of this new statute was purely civil and not penal in nature.