available alternatives, his comprehension of consequences
of failing to assert the defense, and that he is free to waive
the defense); and See State v. Cecil, 260 N.J. Super. 475,
487-90 (App. Div. 1992), certif. denied, 133 N.J. 431
(1992). The waiver determination should not be
confused with a determination whether a defendant is
competent to stand trial. State v. Khan, 175 N.J. at 78-
- (See also, INCOMPETENCY, this Digest).
If the defense of insanity is raised on a defendant’s
behalf despite the defendant’s objection, the possibility
of presenting conflicting defenses such as insanity and
self-defense at a single trial could be fundamentally
unfair. See State v. Kahn, 175 N.J. at 83. Hence, in such
circumstances, the issue must be bifurcated with the
insanity issue to be tried first. Id. at 84. If the jury finds
that the defendant was not insane at the time of the
offense, then a trial on the general issue of the defendant’s
guilt or innocence of the crime charged should proceed.
Id.; cf. State v. Haseen, 191 N.J. Super. 564, 565 (App.
Div. 1983) (bifurcated trial is not required when a
defendant voluntarily raises inconsistent defenses of
insanity and alibi); see also State v. Johnston, 257 N.J.
Super. 178, 196-98 (App. Div.), certif. denied, 130 N.J.
596 (1992) (no principle violated requiring the jury to
consider a defendant’s guilt before considering the issue
of sanity).
The issue of insanity is to be determined by the jury,
and not by the court pursuant to a pretrial application.
See State v. Lopez, 188 N.J. Super. 170, 173 (App. Div.
1983); see also State v. Jasuilewicz, 205 N.J. Super. 558,
565-70 (App. Div. 1985), certif. denied, 103 N.J. 467
(1986) (the defendant should have been afforded the
right to voir dire prospective jurors regarding any
prejudice concerning the insanity defense due to its use
in another unrelated, but highly publicized matter). The
verdict of acquittal by reason of insanity in a criminal trial
must be by an unanimous vote of the jury. State v.
Gadson, 148 N.J. Super. 457, 463-64 (App. Div. 1977).
II. BURDEN OF PROOF
The State is under no obligation to prove that a
defendant was sane at the time of the commission of the
crimes in question. State v. DiPaglia, 64 N.J. 288, 293
(1974). Rather, insanity is an affirmative defense which
the defendant must raise and prove by a preponderance
of the evidence. N.J.S.A. 2C:4-1; State v. Delibero, 149
N.J. 90, 99 (1997); State v. DiPaglia, 64 N.J. at 293; see
also State v. Harris, 141 N.J. 525, 552 (1995); State v.
Worlock, 117 N.J. 596, 601 (1990).
III. JURY INSTRUCTIONS
Instructions to the jury should make clear that
evidence of insanity may be relevant to the jury’s
determination of whether the State has proven beyond a
reasonable doubt that at the time of the offense the
defendant possessed the requisite mental state to be
convicted of the offense that is charged. State v. Delibero,
149 N.J. 90, 93 (1997). When instructing the jury on
the issue of the defendant’s burden of proof, the trial
court should not use the term “presumption,” but
instead, should instruct the jury that the defendant is
“assumed” sane. State v. DiPaglia, 64 N.J. 288, 294
(1974). The trial court should also instruct the jury what
it means for a defendant to have to prove insanity by a
preponderance of the evidence. State v. Lewis, 67 N.J. 47,
50 (1975). In addition, the jury should be instructed “as
to the consequences of a verdict of not guilty be reason of
insanity so that the jury does not act under the mistaken
impression that defendant will necessarily be freed or be
indefinitely committed to a mental institution.” State v.
Krol, 68 N.J. 236, 265 (1975); see also State v. Jasuilewicz,
205 N.J. Super. 558, 573 (App. Div. 1985), certif. denied,
103 N.J. 467 (1986) (when a defendant’s sanity is at
issue and the defendant has testified before the jury in an
artificially-placid state that has been induced by
tranquilizers, anti-psychotic drugs or other medication,
the defendant has the right to have the jury informed that
his demeanor has been altered by medication).IV. INTOXICATION (See also, INTOXICA-
TION, this Digest)
N.J.S.A. 2C:2-8c provides that intoxication does not,
in itself, constitute a mental disease within the meaning
of Chapter 4 of the Code.As the Code contains a separate intoxication defense
in N.J.S.A. 2C:2-8, the trial court should not permit a
defendant to rely upon the insanity defense when the
intoxication defense is more appropriate. The insanity
defense may be available, however, when the voluntary
use of the intoxicant or drug results in a fixed state of
insanity after the influence of the intoxicant or drug has
spent itself. State v. Stasio, 78 N.J. 467, 473 (1979); State
v. Maik, 60 N.J. 203, 215 (1972); see also State v. Sette,
259 N.J. Super. 156, 172-73 (App. Div.), certif. denied,
130 N.J. 597 (1992) (if a defendant can understand the
nature and quality of his criminal acts, an involuntary
intoxication defense would not apply, since the
defendant could not be temporarily insane under the
M’Naghten standard applicable to pathological and