Chapter 971

971.15 Annotation The court properly directed the verdict against the defendant on the issue of mental disease or defect. State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985).

971.15 Annotation Discussing use of expert evidence of personality dysfunction in the guilt phase of a criminal trial. State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995), 93-2611.

971.15 Annotation When a defendant requests an 11th-hour change to a not guilty by reason of mental disease or defect plea, the defendant has the burden of showing why the change is appropriate. There must be an offer of proof encompassing the elements of the defense and a showing of why the plea was not entered earlier. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219.

971.15 Annotation A court is not required to conduct an on-the-record colloquy with respect to a defendant’s desire to abandon a not guilty by reason of mental disease or defect plea. Only fundamental constitutional rights warrant this special protection, and such a plea falls outside the realm of fundamental rights. State v. Francis, 2005 WI App 161, 285 Wis. 2d 451, 701 N.W.2d 632, 04-1360.

971.15 Annotation A court is not required to inform a defendant during a plea colloquy that the defendant may plead guilty to a crime and still have a jury trial on the issue of mental responsibility. Because neither the federal or state constitutions confers a right to an insanity defense, a court has no obligation to personally address a defendant in regard to the withdrawal of a not guilty by reason of mental disease or defect plea, although it is the better practice to do so. State v. Burton, 2013 WI 61, 349 Wis. 2d 1, 832 N.W.2d 611, 11-0450.

971.15 Annotation Although expert testimony may be helpful to a defendant in the responsibility phase of the trial, a favorable expert opinion is not an indispensable prerequisite to a finding of mental disease or defect. Although expert testimony is not required, it is highly unlikely that a defendant’s own testimony, standing alone, will be sufficient to satisfy the burden of proof. State v. Magett, 2014 WI 67, 355 Wis. 2d 617, 850 N.W.2d 42, 10-1639.

971.15 Annotation Because every person is competent to be a witness under s. 906.01 and there is no exception in s. 906.01 for defendants who have entered a plea of not guilty by reason of mental disease or defect, a defendant is competent to testify to the defendant’s own mental health at the responsibility phase of a trial. This does not mean, however, that the defendant’s testimony alone is sufficient to raise a question for the jury. State v. Magett, 2014 WI 67, 355 Wis. 2d 617, 850 N.W.2d 42, 10-1639.

971.15 Annotation Consumption of prescription medication cannot give rise to a mental defect that would sustain an insanity defense. Furthermore, it is established law that one who mixes prescription medication with alcohol is responsible for any resulting mental state. State v. Anderson, 2014 WI 93, 357 Wis. 2d 337, 851 N.W.2d 760, 11-1467.

971.15 Annotation Although a better practice, a circuit court is not required to conduct a right-to-testify colloquy at the responsibility phase of a bifurcated trial resulting from a plea of not guilty by reason of mental disease or defect. State v. Lagrone, 2016 WI 26, 368 Wis. 2d 1, 878 N.W.2d 636, 13-1424.

971.15 Annotation The Power of the Psychiatric Excuse. Halleck. 53 MLR 229 (1970).

971.15 Annotation The Insanity Defense: Conceptual Confusion and the Erosion of Fairness. MacBain. 67 MLR 1 (1983).

971.15 Annotation Criminal Law—First Degree Murder—Evidence of Diminished Capacity Inadmissible to Show Lack of Intent. Gertig. 1976 WLR 623.

971.16 971.16 Examination of defendant.

971.16(2) (2) If the defendant has entered a plea of not guilty by reason of mental disease or defect or there is reason to believe that mental disease or defect of the defendant will otherwise become an issue in the case, the court may appoint at least one physician or at least one psychologist, but not more than 3 physicians or psychologists or combination thereof, to examine the defendant and to testify at the trial. The compensation of the physicians or psychologists shall be fixed by the court and paid by the county upon the order of the court as part of the costs of the action. The receipt by any physician or psychologist summoned under this section of any other compensation than that so fixed by the court and paid by the county, or the offer or promise by any person to pay such other compensation, is unlawful and punishable as contempt of court. The fact that the physician or psychologist has been appointed by the court shall be made known to the jury and the physician or psychologist shall be subject to cross-examination by both parties.

971.16(3) (3) Not less than 10 days before trial, or at any other time that the court directs, any physician or psychologist appointed under sub. (2) shall file a report of his or her examination of the defendant with the judge, who shall cause copies to be transmitted to the district attorney and to counsel for the defendant. The contents of the report shall be confidential until the physician or psychologist has testified or at the completion of the trial. The report shall contain an opinion regarding the ability of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct with the requirements of law at the time of the commission of the criminal offense charged and, if sufficient information is available to the physician or psychologist to reach an opinion, his or her opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment. The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:

971.16(3)(a) (a) The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.

971.16(3)(b) (b) The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

971.16(4) (4) If the defendant wishes to be examined by a physician, psychologist or other expert of his or her own choice, the examiner shall be permitted to have reasonable access to the defendant for the purposes of examination. No testimony regarding the mental condition of the defendant shall be received from a physician, psychologist or expert witness summoned by the defendant unless not less than 15 days before trial a report of the examination has been transmitted to the district attorney and unless the prosecution has been afforded an opportunity to examine and observe the defendant if the opportunity has been seasonably demanded. The state may summon a physician, psychologist or other expert to testify, but that witness shall not give testimony unless not less than 15 days before trial a written report of his or her examination of the defendant has been transmitted to counsel for the defendant.

971.16(5) (5) If a physician, psychologist or other expert who has examined the defendant testifies concerning the defendant’s mental condition, he or she shall be permitted to make a statement as to the nature of his or her examination, his or her diagnosis of the mental condition of the defendant at the time of the commission of the offense charged, his or her opinion as to the ability of the defendant to appreciate the wrongfulness of the defendant’s conduct or to conform to the requirements of law and, if sufficient information is available to the physician, psychologist or expert to reach an opinion, his or her opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment for the defendant’s mental condition. Testimony concerning the defendant’s need for medication or treatment and competence to refuse medication or treatment may not be presented before the jury that is determining the ability of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct with the requirements of law at the time of the commission of the criminal offense charged. The physician, psychologist or other expert shall be permitted to make an explanation reasonably serving to clarify his or her diagnosis and opinion and may be cross-examined as to any matter bearing on his or her competency or credibility or the validity of his or her diagnosis or opinion.

971.16(6) (6) Nothing in this section shall require the attendance at the trial of any physician, psychologist or other expert witness for any purpose other than the giving of his or her testimony.

971.16 History History: 1989 a. 31, 359; 1991 a. 39; 1995 a. 268; 2005 a. 244; 2021 a. 131.

971.16 Annotation Denying the defendant’s motion for a directed verdict after the defendant’s sanity witnesses had testified and the state had rested, then allowing three witnesses appointed by the court to testify, was not an abuse of discretion. State v. Bergenthal, 47 Wis. 2d 668, 178 N.W.2d 16 (1970).

971.16 Annotation The rules stated in Bergenthal, 47 Wis. 2d 668 (1970), apply to a trial to the court. Lewis v. State, 57 Wis. 2d 469, 204 N.W.2d 527 (1973).

971.16 Annotation It was not error to allow a psychiatrist to express an opinion that no psychiatrist could form an opinion as to the defendant’s legal sanity because of unknown variables. Kemp v. State, 61 Wis. 2d 125, 211 N.W.2d 793 (1973).

971.16 Annotation “Mental condition” under sub. (3) refers to the defense of mental disease or defect, not to an intoxication defense. Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976).

971.16 Annotation An indigent defendant is constitutionally entitled to an examining physician, at state expense, when mental status is an issue, but this statute is not the vehicle to satisfy this right. State v. Burdick, 166 Wis. 2d 785, 480 N.W.2d 528 (Ct. App. 1992).

971.165 971.165 Trial of actions upon plea of not guilty by reason of mental disease or defect.

971.165(1) (1) If a defendant couples a plea of not guilty with a plea of not guilty by reason of mental disease or defect:

971.165(1)(a) (a) There shall be a separation of the issues with a sequential order of proof in a continuous trial. The plea of not guilty shall be determined first and the plea of not guilty by reason of mental disease or defect shall be determined second.

971.165(1)(b) (b) If the plea of not guilty is tried to a jury, the jury shall be informed of the 2 pleas and that a verdict will be taken upon the plea of not guilty before the introduction of evidence on the plea of not guilty by reason of mental disease or defect. No verdict on the first plea may be valid or received unless agreed to by all jurors.

971.165(1)(c) (c) If both pleas are tried to a jury, that jury shall be the same, except that:

971.165(1)(c)1. 1. If one or more jurors who participated in determining the first plea become unable to serve, the remaining jurors shall determine the 2nd plea.

971.165(1)(c)2. 2. If the jury is discharged prior to reaching a verdict on the 2nd plea, the defendant shall not solely on that account be entitled to a redetermination of the first plea and a different jury may be selected to determine the 2nd plea only.

971.165(1)(c)3. 3. If an appellate court reverses a judgment as to the 2nd plea but not as to the first plea and remands for further proceedings, or if the trial court vacates the judgment as to the 2nd plea but not as to the first plea, the 2nd plea may be determined by a different jury selected for this purpose.

971.165(1)(d) (d) If the defendant is found not guilty, the court shall enter a judgment of acquittal and discharge the defendant. If the defendant is found guilty, the court shall withhold entry of judgment pending determination of the 2nd plea.

971.165(2) (2) If the plea of not guilty by reason of mental disease or defect is tried to a jury, the court shall inform the jury that the effect of a verdict of not guilty by reason of mental disease or defect is that, in lieu of criminal sentence or probation, the defendant will be committed to the custody of the department of health services and will be placed in an appropriate institution unless the court determines that the defendant would not pose a danger to himself or herself or to others if released under conditions ordered by the court. No verdict on the plea of not guilty by reason of mental disease or defect may be valid or received unless agreed to by at least five-sixths of the jurors.

971.165(3) (3) 

971.165(3)(a) (a) If a defendant is not found not guilty by reason of mental disease or defect, the court shall enter a judgment of conviction and shall either impose or withhold sentence under s. 972.13 (2).

971.165(3)(b) (b) If a defendant is found not guilty by reason of mental disease or defect, the court shall enter a judgment of not guilty by reason of mental disease or defect. The court shall thereupon proceed under s. 971.17. A judgment entered under this paragraph is interlocutory to the commitment order entered under s. 971.17 and reviewable upon appeal therefrom.

971.165 History History: 1987 a. 86; 1989 a. 31, 334; 1995 a. 27 s. 9126 (19); Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); 2007 a. 20 s. 9121 (6) (a).

971.165 Note Judicial Council Note, 1987: Wisconsin presently requires each element of the crime (including any mental element) to be proven before evidence is taken on the plea of not guilty by reason of mental disease or defect. This statute provides for the procedural bifurcation of the pleas of not guilty and not guilty by reason of mental disease or defect, in order that evidence presented on the latter issue not prejudice determination of the former. State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607 (1976).

971.165 Note The legal effect of a finding of not guilty by reason of mental disease or defect is that the court must commit the defendant to the custody of the department of health and social services under s. 971.17.

971.165 Note Sub. (2) allows a five-sixths verdict on the plea of not guilty by reason of mental disease or defect. [87 Act 86]

971.165 Annotation The decision to withdraw a not guilty by reason of mental defect plea belongs to the defendant, not counsel. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.

971.165 Annotation Section 972.01 (1), which requires state consent to the waiver of a jury in a criminal trial, applies when a defendant seeks to waive a jury in the responsibility phase of a bifurcated trial. The state has a legitimate interest in having the decision of mental responsibility decided by a jury. State v. Murdock, 2000 WI App 170, 238 Wis. 2d 301, 617 N.W.2d 175, 99-0566.

971.165 Annotation A defendant can only be found not guilty by reason of mental disease or defect after admitting to the criminal conduct or being found guilty. While the decision made in the responsibility phase is not criminal in nature, the mental responsibility phase remains a part of the criminal case in general, and the defendant is entitled to invoke the 5th amendment at the mental responsibility phase without penalty. State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916, 01-0851.

971.165 Annotation Although a better practice, a circuit court is not required to conduct a right-to-testify colloquy at the responsibility phase of a bifurcated trial resulting from a plea of not guilty by reason of mental disease or defect. State v. Lagrone, 2016 WI 26, 368 Wis. 2d 1, 878 N.W.2d 636, 13-1424.

971.165 Annotation A directed verdict against a criminal defendant on the issue of insanity was constitutional. Leach v. Kolb, 911 F.2d 1249 (1990).

971.165 Annotation The trial court’s wholesale exclusion of the defendant’s proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial did not violate the defendant’s right to present a defense and to testify on the defendant’s own behalf. Morgan v. Krenke, 232 F.3d 562 (2000).

971.165 Annotation Restricting the Admission of Psychiatric Testimony on a Defendant’s Mental State: Wisconsin’s Steele Curtain. Conley. 1981 WLR 733.

971.17 971.17 Commitment of persons found not guilty by reason of mental disease or mental defect.

971.17(1) (1) Commitment period.

971.17(1)(a) (a) Felonies committed before July 30, 2002. Except as provided in par. (c), when a defendant is found not guilty by reason of mental disease or mental defect of a felony committed before July 30, 2002, the court shall commit the person to the department of health services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed against an offender convicted of the same felony, including imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

971.17(1)(b) (b) Felonies committed on or after July 30, 2002. Except as provided in par. (c), when a defendant is found not guilty by reason of mental disease or mental defect of a felony committed on or after July 30, 2002, the court shall commit the person to the department of health services for a specified period not exceeding the maximum term of confinement in prison that could be imposed on an offender convicted of the same felony, plus imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

971.17(1)(c) (c) Felonies punishable by life imprisonment. If a defendant is found not guilty by reason of mental disease or mental defect of a felony that is punishable by life imprisonment, the commitment period specified by the court may be life, subject to termination under sub. (5).

971.17(1)(d) (d) Misdemeanors. When a defendant is found not guilty by reason of mental disease or mental defect of a misdemeanor, the court shall commit the person to the department of health services for a specified period not exceeding two-thirds of the maximum term of imprisonment that could be imposed against an offender convicted of the same misdemeanor, including imprisonment authorized by any applicable penalty enhancement statutes, subject to the credit provisions of s. 973.155.

971.17(1g) (1g) Notice of restriction on firearm possession. If the defendant under sub. (1) is found not guilty of a felony by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under s. 941.29.

971.17(1h) (1h) Notice of restrictions on possession of body armor. If the defendant under sub. (1) is found not guilty of a violent felony, as defined in s. 941.291 (1) (b), by reason of mental disease or defect, the court shall inform the defendant of the requirements and penalties under s. 941.291.

971.17(1j) (1j) Sexual assault; lifetime supervision.

971.17(1j)(a) (a) In this subsection, “serious sex offense” has the meaning given in s. 939.615 (1) (b).

971.17(1j)(b) (b) If a person is found not guilty by reason of mental disease or defect of a serious sex offense, the court may, in addition to committing the person to the department of health services under sub. (1), place the person on lifetime supervision under s. 939.615 if notice concerning lifetime supervision was given to the person under s. 973.125 and if the court determines that lifetime supervision of the person is necessary to protect the public.

971.17(1m) (1m) Sexual assault; registration and testing.

971.17(1m)(a) (a)

971.17(1m)(a)1. 1. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a felony or a violation of s. 165.765 (1), 2011 stats., or of s. 940.225 (3m), 941.20 (1), 944.20, 944.30 (1m), 944.31 (1), 944.33, 946.52, or 948.10 (1) (b), the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. The judge shall inform the person that he or she may request expungement under s. 165.77 (4).

971.17(1m)(a)2. 2. Biological specimens required under subd. 1. shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

971.17(1m)(b) (b)

971.17(1m)(b)1m. 1m.

971.17(1m)(b)1m.a. a. Except as provided in subd. 2m., if the defendant under sub. (1) is found not guilty by reason of mental disease or defect for any violation, or for the solicitation, conspiracy, or attempt to commit any violation, of ch. 940, 944, or 948 or s. 942.08 or 942.09, or ss. 943.01 to 943.15, the court may require the defendant to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the defendant report under s. 301.45.

971.17(1m)(b)1m.b. b. If a court under subd. 1m. a. orders a person to comply with the reporting requirements under s. 301.45 in connection with a finding of not guilty by reason of mental disease or defect for a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 942.09 and the person was under the age of 21 when he or she committed the offense, the court may provide that upon termination of the commitment order under sub. (5) or expiration of the order under sub. (6) the person be released from the requirement to comply with the reporting requirements under s. 301.45.

971.17(1m)(b)2m. 2m. If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a violation, or for the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim was a minor and the defendant was not the victim’s parent, the court shall require the defendant to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the defendant, that the defendant is not required to comply under s. 301.45 (1m).

971.17(1m)(b)3. 3. In determining under subd. 1m. a. whether it would be in the interest of public protection to have the defendant report under s. 301.45, the court may consider any of the following:

971.17(1m)(b)3.a. a. The ages, at the time of the violation, of the defendant and the victim of the violation.

971.17(1m)(b)3.b. b. The relationship between the defendant and the victim of the violation.

971.17(1m)(b)3.c. c. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

971.17(1m)(b)3.d. d. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

971.17(1m)(b)3.e. e. The probability that the defendant will commit other violations in the future.

971.17(1m)(b)3.g. g. Any other factor that the court determines may be relevant to the particular case.

971.17(1m)(b)4. 4. If the court orders a defendant to comply with the reporting requirements under s. 301.45, the court may order the defendant to continue to comply with the reporting requirements until his or her death.

971.17(1m)(b)5. 5. If the court orders a defendant to comply with the reporting requirements under s. 301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the finding of not guilty by reason of mental disease or defect on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the finding has been reversed, set aside or vacated.

971.17(2) (2) Investigation and examination.

971.17(2)(a) (a) The court shall enter an initial commitment order under this section pursuant to a hearing held as soon as practicable after the judgment of not guilty by reason of mental disease or mental defect is entered. If the court lacks sufficient information to make the determination required by sub. (3) immediately after trial, it may adjourn the hearing and order the department of health services to conduct a predisposition investigation using the procedure in s. 972.15 or a supplementary mental examination or both, to assist the court in framing the commitment order.

971.17(2)(b) (b) If a supplementary mental examination is ordered under par. (a), the court may appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the person. In lieu thereof, the court may commit the person to an appropriate mental health facility for the period specified in par. (c), which shall count as days spent in custody under s. 973.155.

971.17(2)(c) (c) An examiner shall complete an inpatient examination under par. (b) and file the report within 15 days after the examination is ordered unless, for good cause, the examiner cannot complete the examination and requests an extension. In that case, the court may allow one 15-day extension of the examination period. An examiner shall complete an outpatient examination and file the report of examination within 15 days after the examination is ordered.

971.17(2)(d) (d) If the court orders an inpatient examination under par. (b), it shall arrange for the transportation of the person to the examining facility within a reasonable time after the examination is ordered and for the person to be returned to the jail or court within a reasonable time after the examination has been completed.

971.17(2)(e) (e) The examiner appointed under par. (b) shall personally observe and examine the person. The examiner or facility shall have access to the person’s past or present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If the examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.

971.17(2)(f) (f) The costs of an examination ordered under par. (a) shall be paid by the county upon the order of the court as part of the costs of the action.

971.17(2)(g) (g) Within 10 days after the examiner’s report is filed under par. (c), the court shall hold a hearing to determine whether commitment shall take the form of institutional care or conditional release.

971.17(3) (3) Commitment order.

971.17(3)(a) (a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.