§704-402  Physical or mental disease,
disorder, or defect excluding responsibility is an affirmative defense; form of
verdict and judgment when finding of irresponsibility is made.  (1) 
Physical or mental disease, disorder, or defect excluding responsibility is an
affirmative defense.



(2)  When the defense provided for by
subsection (1) is submitted to a jury, the court shall, if requested by the
defendant, instruct the jury as to the consequences to the defendant of an
acquittal on the ground of physical or mental disease, disorder, or defect
excluding responsibility.



(3)  When the defendant is acquitted on the
ground of physical or mental disease, disorder, or defect excluding
responsibility, the verdict and the judgment shall so state. [L 1972, c 9, pt
of §1; am L 1973, c 136, §4(a); am L 1980, c 222, §1(1); am L 1982, c 229, §1;
am L 1983, c 124, §14]



 



COMMENTARY ON §704-402



 



  Subsection (1) provides that the issue of physical or mental
disease, disorder, or defect excluding responsibility is a defense.  By the use
of the word "defense" in this section the Code does not intend to
place a burden of proof upon the defendant.  The intent of the Code is only to
foreclose the issue of the defendant's lack of responsibility due to a physical
or mental disease, disorder, or defect unless some evidence raises that issue. 
In most cases where the issue is raised it will be the defendant's evidence
which raises the issue; however it is not inconceivable that the prosecutor's
evidence may raise the issue.  Once evidence is introduced on this issue, the
prosecution is required to prove the responsibility of the defendant beyond a
reasonable doubt.  If the prosecuting attorney has introduced evidence on the
issue, the defendant may rely on the failure of the prosecution, once having
raised the issue, to prove responsibility beyond a reasonable doubt. 
Subsection (1) conforms to prior Hawaii law.[1]



  Subsection (3) merely provides for a special verdict on the
issue of responsibility when evidence of physical or mental disease, disorder,
or defect has raised that issue.  A defendant may, and often does, rely on
alternative defenses or theories.  Since commitment or conditional release is
authorized for some defendants acquitted because of physical or mental disease,
disorder, or defect excluding responsibility, the necessity of a special
verdict is obvious.  This subsection is also in substantial conformity with
prior law.[2]



 



SUPPLEMENTAL COMMENTARY ON §704-402



 



  Subsection (2) was added by Act 136, Session Laws 1973.  It
should be noted that the defendant has the option; the defendant decides
whether the defendant wishes the jury instructed on the consequences to the
defendant of an acquittal on the ground of physical or mental disease,
disorder, or defect excluding responsibility.



  Act 229, Session Laws 1982, amended subsection (1) to provide
that the defense of physical or mental disease, disorder, or defect excluding
responsibility is an affirmative defense.  Senate Standing Committee Report No.
384 states:



The bill adopts
the position of the United States Supreme Court in Leland v. Oregon that making
the insanity defense an affirmative defense is not unconstitutional and does
not violate the Due Process Clause of the Fourteenth Amendment.  The courts
have indicated that insanity is not an element of any offense.  Thus, the
establishing of insanity as an affirmative defense does not relieve the State
of its burden of proof of the elements of the offense.  The Oregon Supreme
Court in State v. Stockett, 278 Or. 637, 565 P.2d 739, 743 (1977) reiterated
the U.S. Supreme Court:  "...the existence or nonexistence of legal
insanity bears no necessary relationship to the existence or nonexistence of
the required mental elements of the crime.  For this reason, Oregon's placement
of the burden of proof of insanity on Leland,...did not effect an
unconstitutional shift in the state's traditional burden of proof beyond a
reasonable doubt of all necessary elements of the offense."



 



Case Notes



 



  Instruction under subsection (2) is informational only and is
not to be used to influence the decision of the jury.  58 H. 623, 574 P.2d 895.



 



Hawaii Legal Reporter Citations



 



  Defendant not sane beyond reasonable doubt.  80-2 HLR 800999.



  Jury verdict overturned.  80-2 HLR 800999.



 



__________



§704-402 Commentary:



 



1.  See State v. Moeller, 50 Haw. 110, 443 P.2d 136 (1967)
("The law in this jurisdiction is that the defendant is presumed to have
been sane at the time he committed the offense; however, if any evidence
introduced raises the question of the sanity of a defendant or insanity becomes
a defense, then the State is required to establish the sanity of the defendant
beyond a reasonable doubt."); Territory v. Alcosiba, 36 Haw. 231, 239
(1942) ("In order to justify the submission of a defense of mental
derangement to the jury, there must therefore be some evidence showing or
tending to show mental derangement..."); and Territory v. Adiarte, 37 Haw.
463, 470 (1947) ("...[C]onsonant with the presumption of innocence,
insanity... may arise solely from the prosecution's evidence without any
evidence being adduced by the defendant.").



 



2.  H.R.S., §711-93.