It is often said that one “must be insane to run this defense.” That is because it is an extremely risky defense that, even if successful, might still result in indefinite confinement. What makes the defense most risky is that, unlike most other defenses, the defense has the obligation of proving Insanity. In doing this defense theory, one might overlook other, less problematic, defenses. In some cases, however, it is the only viable defense theory.

The defense of “Not Guilty By Reason of Insanity” is codified under Florida Statute 775.027 and states:

(1) AFFIRMATIVE DEFENSE.—All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when:

(a) The defendant had a mental infirmity, disease, or defect; and

(b) Because of this condition, the defendant:

1. Did not know what he or she was doing or its consequences; or

2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.

(2) BURDEN OF PROOF.—The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

A key feature and obstacle to this defense is that the defendant must prove insanity by “clear and convincing” evidence, a very high standard of evidence. Even more, facts showing that a defendant might have been influenced by something else other than a mental infirmity will often make the defense very difficult to prove. For example, it is not uncommon for a person to be both be suffering from mental illness and under the influence of a substance. In such a situation, it is difficult, if not impossible, for a mental health professional to determine whether the conduct was caused by the mental illness or the substance(s).

Even in cases of pure mental illness, often there is some evidence that a person knew what he or she was doing was wrong. For example, a person’s attempt to run from police after the criminal act could show that the person was, at least, marginally aware that his or her conduct was unlawful.

Finally, under Florida Statute 916.15, if a person is found Not Guilty By Reason of Insanity, the State may still commit that person involuntarily to a mental institution until such time as that person does not pose a threat to themself or others. In some cases, this type of commitment could last for years, decades, or a lifetime. Notably, there is no time limit on this type of commitment. A person could be found Not Guilty By Reason of Insanity on an Aggravated Assault, a five-year crime, but remain committed in a facility for well over five years.

As mentioned, every case and every person is different. It is a difficult decision to defend a case on the theory of Insanity.

If you or a loved one believe that Not Guilty By Reason of Insanity is the best defense and are seeking guidance, please contact me today for a free consultation. It is a complicated decision, fraught with peril, but is the best strategy in some cases.

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