971.14(5)(a)4.4. A defendant under the supervision of the department placed under this paragraph in a community-based treatment program is in the custody and control of the department, subject to any conditions set by the department. If the department believes that the defendant under supervision has violated a condition, or that permitting the defendant to remain in the community jeopardizes the safety of the defendant or another person, the department may designate an institution at which the treatment shall occur and may request that the court reinstate the proceedings, order the defendant transported by the sheriff to the designated institution, and suspend proceedings consistent with subd. 1. 971.14(5)(am)(am) If the defendant is not subject to a court order determining the defendant to be not competent to refuse medication or treatment for the defendant’s mental condition and if the department determines that the defendant should be subject to such a court order, the department may file with the court, with notice to the counsel for the defendant, the defendant, and the district attorney, a motion for a hearing, under the standard specified in sub. (3) (dm), on whether the defendant is not competent to refuse medication or treatment. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the defendant needs medication or treatment and that the defendant is not competent to refuse medication or treatment, based on an examination of the defendant by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall, under the procedures and standards specified in sub. (4) (b), determine the defendant’s competency to refuse medication or treatment for the defendant’s mental condition. At the request of the defendant, the defendant’s counsel, or the district attorney, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this paragraph. 971.14(5)(b)(b) The defendant shall be periodically reexamined by the department examiners. Written reports of examination shall be furnished to the court 3 months after commitment, 6 months after commitment, 9 months after commitment and within 30 days prior to the expiration of commitment. Each report shall indicate either that the defendant has become competent, that the defendant remains incompetent but that attainment of competency is likely within the remaining commitment period, or that the defendant has not made such progress that attainment of competency is likely within the remaining commitment period. Any report indicating such a lack of sufficient progress shall include the examiner’s opinion regarding whether the defendant is mentally ill, alcoholic, drug dependent, developmentally disabled or infirm because of aging or other like incapacities. 971.14(5)(c)(c) Upon receiving a report under par. (b) indicating the defendant has regained competency or is not competent and unlikely to become competent in the remaining commitment period, the court shall hold a hearing within 14 days of receipt of the report and the court shall proceed under sub. (4). If the court determines that the defendant has become competent, the defendant shall be discharged from commitment and the criminal proceeding shall be resumed. If the court determines that the defendant is making sufficient progress toward becoming competent, the commitment shall continue. 971.14(5)(d)(d) If the defendant is receiving medication the court may make appropriate orders for the continued administration of the medication in order to maintain the competence of the defendant for the duration of the proceedings. If a defendant who has been restored to competency thereafter again becomes incompetent, the maximum commitment period under par. (a) shall be 18 months minus the days spent in previous commitments under this subsection, or 12 months, whichever is less. 971.14(6)(a)(a) If the court determines that it is unlikely that the defendant will become competent within the remaining commitment period, it shall discharge the defendant from the commitment and release him or her, except as provided in par. (b). The court may order the defendant to appear in court at specified intervals for redetermination of his or her competency to proceed. 971.14(6)(b)(b) When the court discharges a defendant from commitment under par. (a), it may order that the defendant be taken immediately into custody by a law enforcement official and promptly delivered to a facility specified in s. 51.15 (2) (d), an approved public treatment facility under s. 51.45 (2) (c), or an appropriate medical or protective placement facility. Thereafter, detention of the defendant shall be governed by s. 51.15, 51.45 (11), or 55.135, as appropriate. The district attorney or corporation counsel may prepare a statement meeting the requirements of s. 51.15 (4) or (5), 51.45 (13) (a), or 55.135 based on the allegations of the criminal complaint and the evidence in the case. This statement shall be given to the director of the facility to which the defendant is delivered and filed with the branch of circuit court assigned to exercise criminal jurisdiction in the county in which the criminal charges are pending, where it shall suffice, without corroboration by other petitioners, as a petition for commitment under s. 51.20 or 51.45 (13) or a petition for protective placement under s. 55.075. This section does not restrict the power of the branch of circuit court in which the petition is filed to transfer the matter to the branch of circuit court assigned to exercise jurisdiction under ch. 51 in the county. Days spent in commitment or protective placement pursuant to a petition under this paragraph shall not be deemed days spent in custody under s. 973.155. 971.14(6)(c)(c) If a person is committed under s. 51.20 pursuant to a petition under par. (b), the county department under s. 51.42 or 51.437 to whose care and custody the person is committed shall notify the court which discharged the person under par. (a), the district attorney for the county in which that court is located and the person’s attorney of record in the prior criminal proceeding at least 14 days prior to transferring or discharging the defendant from an inpatient treatment facility and at least 14 days prior to the expiration of the order of commitment or any subsequent consecutive order, unless the county department or the department of health services has applied for an extension. 971.14(6)(d)(d) Counsel who have received notice under par. (c) or who otherwise obtain information that a defendant discharged under par. (a) may have become competent may move the court to order that the defendant undergo a competency examination under sub. (2). If the court so orders, a report shall be filed under sub. (3) and a hearing held under sub. (4). If the court determines that the defendant is competent, the criminal proceeding shall be resumed. If the court determines that the defendant is not competent, it shall release him or her but may impose such reasonable nonmonetary conditions as will protect the public and enable the court and district attorney to discover whether the person subsequently becomes competent. 971.14 NoteJudicial Council Committee’s Note, 1981: Sub. (1) (a) does not require the court to honor every request for an examination. The intent of sub. (1) (a) is to avoid unnecessary examinations by clarifying the threshold for a competency inquiry in accordance with State v. McKnight, 65 Wis. 2d 583 (1974). “Reason to doubt” may be raised by a motion setting forth the grounds for belief that a defendant lacks competency, by the evidence presented in the proceedings or by the defendant’s colloquies with the judge or courtroom demeanor. In some cases an evidentiary hearing may be appropriate to assist the court in deciding whether to order an examination under sub. (2). Even when neither party moves the court to order a competency inquiry, the court may be required by due process to so inquire where the evidence raises a sufficient doubt. Pate v. Robinson, 383 U.S. 375, 387 (1966); Drope v. Missouri, 420 U.S. 162 (1975). 971.14 NoteThe Wisconsin supreme court has held that a defendant may not be ordered to undergo a competency inquiry unless the court has found probable cause to believe he or she is guilty of the offense charged. State v. McCredden, 33 Wis. 2d 661 (1967). Where this requirement has not been satisfied through a preliminary examination or verdict or finding of guilt prior to the time the competency issue is raised, a special probable cause determination is required. Subsection (1) (b) allows that determination to be made from the allegations in the criminal complaint without an evidentiary hearing unless the defendant submits a particularized affidavit alleging that averments in the criminal complaint are materially false. Where a hearing is held, the issue is limited to probable cause and hearsay evidence may be admitted. See s. 911.01 (4) (c). 971.14 NoteSub. (2) (a) requires the court to appoint one or more qualified examiners to examine the defendant when there is reason to doubt his or her competency. Although the prior statute required the appointment of a physician, this section allows the court to appoint examiners without medical degrees, if their particular qualifications enable them to form expert opinions regarding the defendant’s competency.
971.14 NoteSub. (2) (b), (c) and (d) is intended to limit the defendant’s stay at the examining facility to that period necessary for examination purposes. In many cases, it is possible for an adequate examination to be made without institutional commitment, expediting the commencement of treatment of the incompetent defendant. Fosdal, The Contributions and Limitations of Psychiatric Testimony, 50 Wis. Bar Bulletin, No. 4, pp. 31-33 (April 1977).
971.14 NoteSub. (2) (e) clarifies the examiner’s right of access to the defendant’s past or present treatment records, otherwise confidential under s. 51.30.
971.14 NoteSub. (2) (f) clarifies that a defendant on examination status may receive voluntary treatment but, until committed under sub. (5), may not be involuntarily treated or medicated unless necessary for the safety of the defendant or others. See s. 51.61 (1) (f), (g), (h) and (i).
971.14 NoteSub. (2) (g), like prior s. 971.14 (7), permits examination of the defendant by an expert of his or her choosing. It also allows access to the defendant by examiners selected by the prosecution at any stage of the competency proceedings.
971.14 NoteSub. (3) requires the examiner to render an opinion regarding the probability of timely restoration to competency, to assist the court in determining whether an incompetent defendant should be committed for treatment. Incompetency commitments may not exceed the reasonable time necessary to determine whether there is a substantial probability that the defendant will attain competency in the foreseeable future: Jackson v. Indiana, 406 U.S. 715, 738 (1972). The new statute also requires the report to include the facts and reasoning which underlie the examiner’s clinical findings and opinion on competency. 971.14 NoteSub. (4) is based upon prior s. 971.14 (4). The revision emphasizes that the determination of competency is a judicial matter. State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250 (1974). The standard of proof specified in State ex rel. Matalik v. Schubert, 57 Wis. 2d 315 (1973) has been changed to conform to the “clear and convincing evidence” standard of s. 51.20 (13) (e) and Addington v. Texas, 441 U.S. 418 (1979). [but see 1987 Wis. Act 85] 971.14 NoteSub. (5) requires, in accordance with Jackson v. Indiana, 406 U.S. 715 (1972), that competency commitments be justified by the defendant’s continued progress toward becoming competent within a reasonable time. The maximum commitment period is established at 18 months, in accordance with State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250 (1974) and other data. If a defendant becomes competent while committed for treatment and later becomes incompetent, further commitment is permitted but in no event may the cumulated commitment periods exceed 24 months or the maximum sentence for the offense with which the defendant is charged, whichever is less. State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257, 270 N.W.2d 402 (1978). 971.14 NoteSub. (6) clarifies the procedures for transition to civil commitment, alcoholism treatment or protective placement when the competency commitment has not been, or is not likely to be, successful in restoring the defendant to competency. The new statute requires the defense counsel, district attorney and criminal court to be notified when the defendant is discharged from civil commitment, in order that a redetermination of competency may be ordered at that stage. State ex rel. Porter v. Wolke, 80 Wis. 2d 197, 297 N.W.2d 881 (1977). The procedures specified in sub. (6) are not intended to be the exclusive means of initiating civil commitment proceedings against such persons. See, e.g., In Matter of Haskins, 101 Wis. 2d 176 (Ct. App. 1980). [Bill 765-A] 971.14 NoteJudicial Council Note, 1990: [Re amendment of (1) (c)] The McCredden hearing is substantially similar in purpose to the preliminary examination. The standard for admission of telephone testimony should be the same in either proceeding.
Effective date note[Re amendment of (4) (b)] The standard for admission of telephone testimony at a competency hearing is the same as that for a preliminary examination. See s. 970.03 (13) and NOTE thereto. [Re Order eff. 1-1-91]
971.14 AnnotationThe legislature intended by the reference to s. 973.155 in sub. (5) (a) that good time credit be accorded persons committed as incompetent to stand trial. State v. Moore, 167 Wis. 2d 491, 481 N.W.2d 633 (1992). 971.14 AnnotationA competency hearing may be waived by defense counsel without affirmative assent of the defendant. State v. Guck, 176 Wis. 2d 845, 500 N.W.2d 910 (1993). 971.14 AnnotationThe state bears the burden of proving competency when put at issue by the defendant. A defendant shall not be subject to a criminal trial when the state fails to prove competence by the greater weight of the credible evidence. A trial court’s competency determination should be reversed only when clearly erroneous. State v. Garfoot, 207 Wis. 2d 214, 558 N.W.2d 626 (1997), 94-1817. See also State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, 97-3217; State v. Smith, 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135, 13-1228. 971.14 AnnotationA probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer’s competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to this section and s. 971.13 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 563 N.W.2d 883 (1997), 95-0907. 971.14 AnnotationThe burden of proof under sub. (4) (b), when a defendant claims to be competent, does not violate equal protection guarantees. It balances the fundamental rights of not being tried when incompetent and of not having liberty denied because of incompetence. State v. Wanta, 224 Wis. 2d 679, 592 N.W.2d 645 (Ct. App. 1999), 98-0318. 971.14 AnnotationWhen a competency examination was ordered, but never occurred, the time limits under sub. (2) did not begin to run and no violation occurred. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999), 97-3841. 971.14 AnnotationIf the court determines under sub. (4) (d) that the defendant is not competent and not likely to become competent within 12 months, the proceedings shall be suspended and the defendant may be civilly committed under sub. (6) (a) as well as sub. (6) (b). When a prosecutor was subsequently notified that the defendant was not an appropriate candidate for civil commitment because the defendant was not mentally retarded, the state was authorized to request reevaluation under sub. (6) (d). State v. Carey, 2004 WI App 83, 272 Wis. 2d 697, 679 N.W.2d 910, 03-1578. 971.14 AnnotationThe fact that a defendant is deemed competent to stand trial should not create a presumption that the defendant is competent at a later date when the same defendant pursues postconviction relief. State v. Daniel, 2015 WI 44, 362 Wis. 2d 74, 862 N.W.2d 867, 12-2692. 971.14 AnnotationThere is no statute directly governing postconviction competency proceedings, but courts will look to this section for guidance. Once a defense attorney raises the issue of competency at a postconviction hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant is competent to proceed. State v. Daniel, 2015 WI 44, 362 Wis. 2d 74, 862 N.W.2d 867, 12-2692. 971.14 AnnotationA proceeding to determine whether a defendant is competent is separate and distinct from the defendant’s underlying criminal proceeding. Thus, an order that a defendant is not competent to proceed is a final order issued in a special proceeding and is appealable as of right pursuant to s. 808.03 (1). State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017. 971.14 AnnotationUnder Sell, 539 U.S. 166 (2003), a court may order involuntary medication for the purpose of competency to stand trial only if four factors are met: 1) important governmental interests are at stake; 2) involuntary medication will significantly further the government’s interest in prosecuting the offense; 3) involuntary medication is necessary to further those interests; and 4) administration of the drugs is medically appropriate. Sub. (4) (b) does not require the circuit court to determine whether the Sell factors have been met. Rather, it requires circuit courts to order involuntary medication for a defendant who is found incompetent to refuse medication under sub. (3) (dm). The mere inability of a defendant to express an understanding of medication or to make an informed choice about it is constitutionally insufficient to override a defendant’s significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. To the extent that subs. (3) (dm) and (4) (b) require circuit courts to order involuntary medication when the Sell standard has not been met, the statute is unconstitutional. State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165, 18-1214. 971.14 AnnotationThe plain meaning of the 12-month treatment limit in sub. (5) (a) 1. does not permit tolling of its limit on confinement for pretrial treatment to achieve competency. State v. Green, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770, 20-0298. 971.14 AnnotationWisconsin’s new competency to stand trial statute. Fosdal & Fullin. WBB Oct. 1982.
971.14 AnnotationThe insanity defense: Ready for reform? Fullin. WBB Dec. 1982.
971.15971.15 Mental responsibility of defendant. 971.15(1)(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law. 971.15(2)(2) As used in this chapter, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. 971.15(3)(3) Mental disease or defect excluding responsibility is an affirmative defense which the defendant must establish to a reasonable certainty by the greater weight of the credible evidence. 971.15 HistoryHistory: 1993 a. 486. 971.15 AnnotationIt is not a violation of due process to put the burden of the affirmative defense of mental disease or defect on the defendant. State v. Hebard, 50 Wis. 2d 408, 184 N.W.2d 156 (1971). 971.15 AnnotationPsychomotor epilepsy may be legally classified as a mental disease or defect. Sprague v. State, 52 Wis. 2d 89, 187 N.W.2d 784 (1971). 971.15 AnnotationThe state does not have to produce evidence contradicting an insanity defense. The burden is on the defendant. Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972). 971.15 AnnotationA voluntarily drugged condition is not a form of insanity that can constitute a mental defect or disease. Medical testimony cannot be used both on the issue of guilt to prove lack of intent and also to prove insanity. Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972). 971.15 AnnotationThe legislature, in enacting the American Law Institute definition of insanity as this section, deliberately and positively excluded “antisocial conduct” from the statutory definition of “mental disease or defect.” Simpson v. State, 62 Wis. 2d 605, 215 N.W.2d 435 (1974). 971.15 AnnotationThe jury was not obliged to accept the testimony of two medical witnesses, although the state did not present medical testimony, because it was the jury’s responsibility to determine the weight and credibility of the medical testimony. Pautz v. State, 64 Wis. 2d 469, 219 N.W.2d 327 (1974). 971.15 AnnotationThe 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 AnnotationDiscussing 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 AnnotationWhen 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 AnnotationA 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 AnnotationA 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 AnnotationAlthough 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 AnnotationBecause 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 AnnotationConsumption 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 AnnotationAlthough 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 AnnotationThe Power of the Psychiatric Excuse. Halleck. 53 MLR 229 (1970).
971.15 AnnotationThe Insanity Defense: Conceptual Confusion and the Erosion of Fairness. MacBain. 67 MLR 1 (1983).
971.15 AnnotationCriminal Law—First Degree Murder—Evidence of Diminished Capacity Inadmissible to Show Lack of Intent. Gertig. 1976 WLR 623.
971.16971.16 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 AnnotationDenying 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 AnnotationIt 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 AnnotationAn 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). 971.165971.165 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)(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 HistoryHistory: 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).
