Criminal responsibility

[Note to Judge:  Where there is evidence of lack of criminal responsibility, this instruction, at the discretion of the judge, may be given as a stand-alone instruction prior to the murder instruction or inserted within the murder instruction.  In deciding when to give this instruction, a judge may wish to consider whether the defendant has conceded that he committed the crime and whether the only live issue for the jury to decide is the defendant's criminal responsibility.]

To prove the defendant guilty of any crime, the Commonwealth must prove beyond a reasonable doubt that the defendant was criminally responsible at the time the alleged crime was committed.[2] The burden is not on the defendant to prove a lack of criminal responsibility.[3] Under the law, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant committed the crime with which he[4] is charged and also that the defendant is criminally responsible for his conduct.[5] 

     Criminal responsibility is a legal term.  A person is not criminally responsible for his conduct if he has a mental disease or defect, and, as a result of that mental disease or defect, lacks substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of the law.[6]

The phrase "mental disease or defect" is a legal term, not a medical term; it need not fit into a formal medical diagnosis.  The phrase "mental disease or defect" does not include an abnormality characterized only by repeated criminal conduct.[7] It is for you to determine in light of all the evidence whether the defendant had a mental disease or defect.[8] If the Commonwealth has proved to you beyond a reasonable doubt that the defendant was not suffering from a mental disease or defect at the time of the killing, the Commonwealth has satisfied its burden of proving that the defendant was criminally responsible.

If you have a reasonable doubt whether the defendant had a mental disease or defect at the time of the killing, then you must determine whether, as a result of a mental disease or defect, he lacked substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of the law.  To establish that the defendant had substantial capacity to conform his conduct to the requirements of the law, the Commonwealth must prove beyond a reasonable doubt that any mental disease or defect that may have existed did not deprive the defendant of his ability to behave as the law requires, that is, to obey the law.[9]

The word "appreciate" means to understand rather than merely to know.  "Criminality" means the legal significance of conduct; "wrongfulness" means the moral significance.[10]

The Commonwealth must prove that the defendant knew and understood that his conduct was illegal or that it was wrong.  It is not enough for the Commonwealth to show that the defendant merely knew or was intellectually aware that his conduct was illegal or wrong; rather, the Commonwealth must prove beyond a reasonable doubt that a mental disease or defect did not deprive the defendant of a meaningful understanding of the legal or moral significance of his conduct.  The defendant must have been able to realize, in some meaningful way, that his conduct was illegal or wrong.[11]

In considering whether the Commonwealth has met its burden of proof, you may consider all the evidence that has been presented at this trial.  You may consider the facts underlying the crime and evidence of the defendant's actions before and after the crime.  You may consider the opinions of any experts who testified, and give those opinions whatever weight you think they deserve.[12]

[Where there is evidence that a defendant had a mental disease or defect and consumed drugs or alcohol]

 A defendant's lack of criminal responsibility must be due to a mental disease or defect.  Intoxication caused by the voluntary consumption of alcohol or drugs, by itself, is not a mental disease or defect.  Where a defendant lacked substantial capacity to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the law solely as a result of voluntary intoxication, then he is criminally responsible for his conduct.[13] However, the consumption of alcohol or drugs may trigger or intensify (make worse) a defendant's preexisting mental disease or defect.  If it did so here, and the mental disease or defect then caused the defendant to lose substantial capacity to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of the law, the defendant is not criminally responsible for his conduct.[14]

[Where there is evidence the defendant knew that consumption of drugs or alcohol would trigger or intensify a mental disease or defect]

There is one exception to the principle just stated.  A defendant who lost the substantial capacity I have just described after he consumed drugs or alcohol, and who knew or had reason to know that his consumption would trigger or intensify in him a mental disease or defect that could cause him to lack that capacity, is criminally responsible for his resulting conduct.[15]In deciding whether the defendant had reason to know about the consequences of his consumption of drugs or alcohol, you should consider the question solely from the defendant's point of view, including his mental capacity and his past experience with drugs or alcohol.  But you must keep in mind that where a defendant, at the time the crime is committed, had a mental disease or defect that by itself caused him to lack the required substantial capacity, he is not criminally responsible for his conduct regardless of whether he used or did not use alcohol or drugs. That is true even if he did use alcohol or drugs and the alcohol or drug use made the symptoms of his mental disease or defect worse, and even if he knew they would make his symptoms worse.[16]

[Where there is no evidence the defendant knew that consumption of drugs or alcohol would trigger or intensify a mental disease or defect]

You must also keep in mind that where a defendant, at the time the crime is committed, had a mental disease or defect that by itself caused him to lack the substantial capacity that I have just described, he is not criminally responsible for his conduct regardless of whether he used or did not use alcohol or drugs.  That is true even if he did use alcohol or drugs and the alcohol or drug use made the symptoms of his mental disease or defect worse.[17]

[The following paragraphs finish the charge on the criminal responsibility instruction and should be given whether or not the case involves the consumption of drugs or alcohol]

In a moment, I will instruct you on the elements of the offense[s] that the Commonwealth alleges the defendant has committed.  Remember that the Commonwealth must prove to you beyond a reasonable doubt that the defendant was criminally responsible at the time the crime was committed, that is, that the defendant did not lack criminal responsibility at that time.  Therefore, it is the Commonwealth's burden to prove at least one of the following beyond a reasonable doubt:[18]

  1. That at the time of the alleged crime, the defendant did not suffer from a mental disease or defect; or
  2. That if the defendant did suffer from a mental disease or defect, he nonetheless retained the substantial capacity to appreciate the wrongfulness or criminality of his conduct and to conform his conduct to the requirements of the law; or
  3. [Where there is evidence the defendant consumed drugs or alcohol]  That, if the defendant lacked the substantial capacity to appreciate the wrongfulness or criminality of his conduct or to conform his conduct to the requirements of the law, his lack of such capacity was solely the result of voluntary intoxication by alcohol or other drugs; or

  4. [Where there is evidence the defendant knew that consumption of drugs or alcohol would trigger or intensify a mental disease or defect] That, if the defendant lacked the substantial capacity I have just described due to a combination of a mental disease or defect and his voluntary consumption of alcohol or other drugs, he knew or should have known that his use of the substance[s] would interact with his mental disease or defect and cause him to lose such capacity.[19]

    [Consequences of Verdict of Not Guilty by Reason of Lack of Criminal Responsibility.  Note to Judge: Give at the defendant's request or on the judge's own initiative, absent a defense objection. 20]

As I have previously instructed, your decision should be based solely on the evidence and the law of this case.  In any case that raises an issue of lack of criminal responsibility, you are entitled to know what happens to a defendant if he is found not guilty by reason of lack of criminal responsibility.
 

If a defendant is found not guilty by reason of lack of criminal responsibility, the district attorney or another appropriate authority may, and generally does, petition the court to commit the defendant to a mental health facility or to Bridgewater State Hospital.  If the court concludes that the defendant is mentally ill and that his discharge would create a substantial likelihood of serious harm to himself or others, then the court will grant the petition and commit the defendant to a proper mental facility or to Bridgewater State Hospital, initially for a period of six months.  At the end of the six months and every year thereafter, the court reviews the order of commitment. If the defendant is still suffering from a mental disease or defect and is still dangerous, then the court will order the defendant to continue to be committed to the mental facility or to Bridgewater State Hospital.  There is no limit to the number of such renewed orders of commitment as long as the defendant continues to be mentally ill and dangerous; if these conditions do continue, the defendant may remain committed for the duration of his life.

If at some point the defendant is no longer mentally ill and dangerous, the court will order him discharged from the mental health facility or from Bridgewater State Hospital after a hearing.  The district attorney must be notified of any hearing concerning whether the person may be released, and the district attorney may be heard at any such hearing.  However, the final decision on whether to recommit or release the defendant is always made by the court.[21]

Additional Resources

Footnotes

[1] Because these Model Jury Instructions on Homicide reflect existing statutory and case law, they will be continually reviewed and revised by the Supreme Judicial Court as the law develops or changes.  Comments by judges and attorneys regarding these model instructions may be sent to modelhomicide@jud.state.ma.us and will be considered in future revisions of these instructions.

[2] Commonwealth v. Berry, 457 Mass. 602, 612 (2010), quoting Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967).

[3] Id.

[4] We use the pronoun "he" through the instructions.  Of course, the judge should insert the appropriate gender pronoun, and, where there are multiple defendants who identify with different genders, the judge should use the appropriate pronouns in referring to the defendants.

[5] This sentence tracks the language approved in Commonwealth v. Goudreau, 422 Mass. 731, 737 ¶ 4 (1996) (promulgating model instruction on criminal responsibility).  See Commonwealth v. Berry, 457 Mass. at 612, quoting Commonwealth v. McHoul, 352 Mass. at 546-547 ("once a defendant raises the issue of criminal responsibility, the Commonwealth has the burden to prove, beyond a reasonable doubt, that the defendant did not lack the substantial capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law, as a result of a mental disease or defect.  In order to prove that a defendant can 'conform [her] conduct to the requirements of the law,' the prosecution must show that the defendant had a 'substantial ability to behave as the law requires; that is, to obey the law'").

[6] This paragraph tracks the language approved in Commonwealth v. Goudreau, 422 Mass. at 737 ¶ 5 (promulgating model instruction on criminal responsibility).  See Commonwealth v. Berry, 457 Mass. at 612, quoting Commonwealth v. McHoul, 352 Mass. at 546-547 ("that the defendant did not lack the substantial capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law, as a result of a mental disease or defect").

[7] This sentence tracks the language approved in Commonwealth v. Goudreau, 422 Mass. at 737 ¶ 7 (promulgating model instruction on criminal responsibility).

[8] See Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 (2010) ("We have previously indicated that a judge is not required to define 'mental disease or defect' but has discretion to provide the instructions that are appropriate to the context"); Commonwealth v. Fuller, 421 Mass. 400, 411 (1995) ("This court has declined to impose any obligation on a trial judge to provide a further explanation of the terms in issue here . . . .  Our unwillingness to impose a mandatory instruction arises not because the term 'mental disease or defect' is so clear on its face that such an explanation would be superfluous.  The reason may well be the opposite; the subject is so complex and obscure that any general explanatory formula is likely to mislead and confuse").  Cf. Commonwealth v. Mulica, 401 Mass. 812, 816-820 (1988) (mental disease and defect instruction focusing jury on one particular type of mental disease or defect may have limited jury's consideration of other types of mental disease or defects and improperly reduced Commonwealth's burden).

[9] This sentence tracks the language approved in Commonwealth v. Goudreau, 422 Mass. at 738 ¶ 5 (promulgating model instruction on criminal responsibility).

[10] This sentence tracks, with modifications, the language approved in Commonwealth v. Goudreau, 422 Mass. at 736, 738 ¶ 3.

[11] This paragraph tracks, with modifications, the language approved in Commonwealth v. Goudreau, 422 Mass. at 736, 738 ¶¶ 3-4.

[12] This paragraph tracks, with modifications, the language approved in Commonwealth v. Goudreau, 422 Mass. at 736, 739 ¶ 3.

[13] This paragraph comes from Commonwealth v. DiPadova, 460 Mass. 424, 439 (2011) (appendix providing model jury instruction).  See Commonwealth v. Berry, 457 Mass. at 617-618, citing Commonwealth v. Sheehan, 376 Mass. 765, 770 (1978). 

[14] This paragraph comes from Commonwealth v. DiPadova, 460 Mass. at 439 (appendix providing model jury instruction).  See Commonwealth v. Berry, 457 Mass. at 612-613, quoting Commonwealth v. Brennan, 399 Mass. 358, 363 (1987) ("if the jury find that the 'defendant had a latent mental disease or defect which caused the defendant to lose the capacity . . . to conform his conduct to the requirements of the law, lack of criminal responsibility is established even if voluntary consumption of alcohol activated the illness,' as long as the defendant did not know or have reason to know that the activation would occur").

[15] This paragraph comes from Commonwealth v. DiPadova, 460 Mass. at 439-440 (appendix providing model jury instruction).  See id. at 436 ("where a defendant's substance abuse interacts with a mental disease or defect, that defendant is criminally responsible only if two conditions are true: (1) his mental condition alone, prior to the consumption of the drugs, did not render him criminally irresponsible; and (2) he knew or reasonably should have known that this consumption would cause him to lose substantial capacity to appreciate wrongfulness of conduct or to conform him conduct to the law -- that is, would cause him to become criminally irresponsible"); Commonwealth v. Berry, 457 Mass. at 612-613, quoting Commonwealth v. Brennan, 399 Mass. at 363 (foreknowledge or reason to know that consumption of drugs or alcohol will trigger latent mental defect nullifies defense of lack of capacity).

[16] This paragraph comes from Commonwealth v. DiPadova, 460 Mass. at 439-440 (appendix providing model jury instruction).  See id. at 437 (jury should be instructed that "(1) if the defendant's mental illness did not reach the level of a lack of criminal responsibility until he consumed drugs, he was criminally responsible if he knew [or should have known] that the consumption would have the effect of intensifying or exacerbating his mental condition; and, in contrast, (2) if the defendant's mental illness did reach the level of lack of criminal responsibility even in the absence of his consumption of drugs, it was irrelevant whether he took drugs knowing that they would exacerbate that condition" [emphasis in original]); Commonwealth v. Berry, 457 Mass. at 616-618 ("defense of lack of criminal responsibility is not defeated where the defendant also consumed alcohol or drugs, as long as the mental disease or defect was the cause of the lack of criminal responsibility . . . .  Where a defendant has an active mental disease or defect that caused her to lose the substantial capacity to appreciate the wrongfulness of her conduct or the substantial capacity to conform her conduct to the requirements of the law, the defendant's consumption of alcohol or another drug cannot preclude the defense of lack of criminal responsibility").

[17] Commonwealth v. DiPadova, 460 Mass. at 439-440 (appendix providing model jury instruction).  See id. at 437 (jury should be instructed that "(1) if the defendant's mental illness did not reach the level of a lack of criminal responsibility until he consumed drugs, he was criminally responsible if he knew [or should have known] that the consumption would have the effect of intensifying or exacerbating his mental condition; and, in contrast, (2) if the defendant's mental illness did reach the level of lack of criminal responsibility even in the absence of his consumption of drugs, it was irrelevant whether he took drugs knowing that they would exacerbate that condition" [emphasis in original]); Commonwealth v. Berry, 457 Mass. at 616-618 ("defense of lack of criminal responsibility is not defeated where the defendant also consumed alcohol or drugs, as long as the mental disease or defect was the cause of the lack of criminal responsibility . . . .  Where a defendant has an active mental disease or defect that caused her to lose the substantial capacity to appreciate the wrongfulness of her conduct or the substantial capacity to conform her conduct to the requirements of the law, the defendant's consumption of alcohol or another drug cannot preclude the defense of lack of criminal responsibility").

[18] This paragraph and the factors that follow are taken from Commonwealth v. DiPadova, 460 Mass. at 439-440 (appendix providing model jury instruction).

[19] Commonwealth v. DiPadova, 460 Mass. at 439-440 (appendix providing model jury instruction).

[20] Commonwealth v. Biancardi, 421 Mass. 251, 251-252 (1995), quoting Commonwealth v. Mutina, 366 Mass. 810, 823 n.12 (1975) ("where the defense of insanity [lack of criminal responsibility] is fairly raised, the defendant, on his timely request, is entitled to an instruction regarding the consequences of a verdict of not guilty by reason of insanity").  See Commonwealth v. Callahan, 380 Mass. 821, 827 (1980) (judge may give instruction on his or her own initiative where defendant does not object).

[21] Commonwealth v. Chappell, 473 Mass. 191, 206, 209 (2015) (Appendix).

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Date published: April 25, 2018

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