Introduction

Insanity Notice, Examination, and Acquittal

Introduction

Federal Rule of Criminal Procedure 12.2(a) supplies the first procedural requirement for a federal defendant who plans to argue insanity. A defendant who intends to assert a defense of insanity at the time of the alleged offense must notify an attorney for the government in writing within the time for filing a pretrial motion, or at any later time the court sets, and must file a copy of the notice with the clerk.¹ A defendant who fails to do so cannot rely on the defense, although the court may for good cause allow late notice, grant additional trial-preparation time, or make other appropriate orders.² The reason for the deadline comes from how the defense is proved. Insanity usually rests on expert evidence about the defendant's mind at the time of the offense, and the prosecution cannot answer that evidence on the spot. If the government first learned of the defense at trial, it would have no chance to retain an examiner, gather records, or interview witnesses, which is why most jurisdictions require advance notice.³ Loss of the defense is the penalty for silence, and it gives the deadline its force, since a defendant free to ignore it would keep the element of surprise the rule exists to remove.

This chapter covers the machinery that surrounds the defense; the tests for insanity themselves are taught in other readings. Jurisdictions combine the cognitive, moral, volitional, and product-of-illness approaches in different ways, and the Model Penal Code adds its own substantial-capacity formulation.⁴ Here the working assumption is that a defense exists on the facts, and the questions are practical ones for a defense lawyer. What must be filed before trial, what may the court and the government do once the defense is announced, and what happens to the client if the defense succeeds? The reading draws on two sources side by side. The federal rule governs in federal court, and the Model Penal Code supplies a parallel model that bars evidence of mental disease or defect excluding responsibility unless the defendant files written notice when entering a not-guilty plea, or within ten days afterward, or at a later time the court permits for good cause.⁵ The two share one purpose and differ mainly in how they measure the deadline.

Three questions organize what follows, and Rule 12.2 itself reaches the first two, since a single federal provision addresses notice, court-ordered examination, and the consequences of noncompliance.⁶ The first question is whether the defendant gave the required written notice, and what follows if not. The second is whether the court may order a competency or psychiatric examination, and on what terms. Examination belongs beside notice because announcing the defense is what typically opens the door to it.⁷ The third is what becomes of a defendant who is acquitted because of mental disease or defect excluding responsibility. The notice question comes first because the other two depend on it: an examination ordered in response to the defense, and a verdict that rests on the defense, both presuppose that it was properly raised. The next section therefore develops the federal notice rule element by element and then turns to the Model Penal Code counterpart.