This commentary is by Robert Sand, founding director of the Center for Justice Reform at Vermont Law School. He is a former Windsor County state’s attorney.
The Chittenden County state’s attorney dismissed three criminal cases, courageously deciding as a matter of fact, law and legal ethics that the state could not overcome an insanity defense.
Subsequently, the independently elected attorney general conducted a separate review and concluded there was sufficient evidence to go forward.
Two smart, dedicated public servants reached different conclusions about the facts, law, ethics, and how to achieve justice.
A complex legal issue lies buried beneath these divergent perspectives. What happens when a case goes to a jury under an insanity defense and the jury cannot unanimously decide on the validity of the defense? The short answer: We don’t know. Neither the Vermont Supreme Court nor the U.S. Supreme Court has answered the question of what happens when a jury cannot unanimously decide on the defense of insanity.
We know that the prosecution must prove the elements of a crime beyond a reasonable doubt to a unanimous jury. This includes the obligation to prove the defendant acted with the mental state or intent required to establish the crime. We also know that in Vermont, and elsewhere, the defense bears the burden of establishing insanity by a preponderance of the evidence (more likely than not), although some jurisdictions impose a higher burden on the defense: clear and convincing evidence.
When the jury deliberates, it must first consider if the prosecution has met its burden of proving the offense elements beyond a reasonable doubt. If the jury finds the prosecution has not met its burden, it returns a verdict of “not guilty.” If the jury unanimously finds the prosecution has met its burden, it then goes on to consider the affirmative defense of insanity and must decide if the defense has established either an inability to appreciate the criminality of the conduct or an inability to conform conduct to the requirements of the law, the components of the insanity defense.
What happens if the jury cannot unanimously decide on the insanity defense? Is this a conviction because the prosecution met its burden and the defense failed to meet its burden? Or is this a “hung jury” necessitating a mistrial, since the jury could not reach a unanimous decision on the insanity defense?
Two recent U.S. Supreme Court cases frame this issue but do not decide it. In Ramos v. Louisiana (2020), the court made clear that the Constitution mandates unanimous juries for all serious crimes, striking down the law in two states that allowed for non-unanimous juries.
Ramos only addressed the need for unanimity with respect to the offense elements — the things the prosecutor needs to prove. Ramos did not address the need for unanimity on affirmative defenses like insanity.
In Kahler v. Kansas (2020), the court ruled that a state may eliminate the insanity defense completely. A state may declare that once the prosecution proves the offense elements beyond a reasonable doubt to a unanimous jury (including the intent element), there can be no acquittal based on insanity.
If a state can eliminate the insanity defense completely, may a state make the insanity defense available, but only if the defense meets its burden by convincing all the jurors? Under this approach, a failure to convince all the jurors of the insanity defense would result in a conviction, not a hung jury and mistrial, since the prosecution met its burden on the offense elements, but the defense failed to meet its burden on the insanity defense.
What is the right answer as a matter of constitutional law? Separately, what is the right answer as a matter of fairness and justice? Stay tuned.
