Could Maryland pass a law making a criminal defendant prove he was insane, instead of requiring the prosecution to prove he was sane?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General whether it would be constitutional to change the law so that a criminal defendant, rather than the prosecution, would bear the burden of proving insanity. Under the law as it stood in 1982, once a defendant put forward evidence of insanity, the prosecution had to prove beyond a reasonable doubt that the defendant was actually sane at the time of the crime. The proposed change would have flipped that burden onto the defendant. The opinion concluded such a change would be constitutional, but only if the legislature carefully distinguished two related but separate concepts: "criminal responsibility" (the insanity defense itself, meaning the capacity to appreciate the wrongfulness of one's conduct or to conform to the law) and "criminal intent" or mens rea (the mental element of the underlying crime, which the Constitution always requires the State to prove beyond a reasonable doubt). The opinion warned that reassigning the burden on insanity could not be allowed to quietly relieve the State of its separate, constitutionally mandated burden of proving criminal intent.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion analyzed Maryland's insanity-defense burden-of-proof rule and the governing Health-General Article provisions as they stood in 1982, resting heavily on the Supreme Court's then-recent decisions in Patterson v. New York and Mullaney v. Wilbur and on Maryland Court of Appeals cases construing the state's insanity test. Both the Maryland statutory framework for the insanity defense and the constitutional case law on burdens of proof in criminal cases have had decades to change since 1982. Anyone researching how Maryland allocates the burden of proving insanity today should verify the current statute and current case law rather than relying on this opinion's 1982 analysis.

Common questions

In 1982, who had to prove a Maryland criminal defendant's sanity: the prosecution or the defendant?
Under the law in place at the time, once a defendant introduced some evidence of insanity, the prosecution bore the burden of proving beyond a reasonable doubt that the defendant was in fact sane when the crime was committed.

Could Maryland have constitutionally required the defendant to prove his own insanity instead?
Yes, according to this opinion. It concluded that the Due Process Clause did not bar a state from placing the burden of proving an insanity defense on the defendant, relying on the U.S. Supreme Court's decision in Patterson v. New York, which held that a state may require a defendant to prove an affirmative defense like insanity.

If the defendant had to prove insanity, would the State still have to prove anything about the defendant's mental state?
Yes. The opinion stressed that "criminal intent" (mens rea), the mental element built into the definition of the crime itself, is constitutionally distinct from "criminal responsibility" (the insanity defense), and that the State would remain constitutionally obligated to prove criminal intent beyond a reasonable doubt no matter how the insanity burden was assigned.

Why did the opinion say this distinction was hard to apply in practice?
The opinion noted that proving either prong of Maryland's insanity test, the inability to appreciate the criminality of one's conduct or the inability to conform conduct to the law, could involve some of the same facts relevant to proving specific criminal intent, such as willfulness or premeditation in a murder case, so a legislature reassigning the insanity burden would need to draft carefully to avoid also, in effect, relieving the State of its intent-proving burden.

Background and statutory framework

Maryland's insanity defense was governed by Title 12 of the Health-General Article, with HG §12-107 setting out the test: a defendant is not responsible for criminal conduct if, because of mental retardation or a mental disorder, the defendant lacked substantial capacity to appreciate the criminality of the conduct or to conform the conduct to the requirements of law. The opinion noted the statute itself did not allocate a burden of persuasion on this question; instead, the rule that the prosecution had to prove sanity beyond a reasonable doubt came entirely from case law, tracing to Bradford v. State, which had described insanity as bound up with "the mens rea or intent which is an essential element of the offense which the State must prove."

The opinion explained that Bradford's reasoning reflected the older McNaughten test for insanity, under which an insane defendant was, in effect, incapable of forming criminal intent at all. But Maryland had since adopted a modified version of the American Law Institute test (now codified at HG §12-107), and the Court of Appeals in Langworthy v. State clarified that a finding of insanity under the newer test did not necessarily mean there was "no crime" or that mens rea was absent, since neither prong of the current test is necessarily inconsistent with general criminal intent. The opinion read Langworthy and Gardner v. State together to conclude that Bradford's premise no longer held in full, opening the door to reassigning the insanity burden without automatically also relieving the State of proving intent.

On the federal constitutional side, the opinion relied on the Supreme Court's decision in Mullaney v. Wilbur, which held that the Due Process Clause requires the prosecution to prove every element of a crime beyond a reasonable doubt, and Patterson v. New York, which clarified that states retain wide latitude to define the elements of an offense and may place the burden of proving an affirmative defense, including insanity, on the defendant. The opinion noted that Patterson expressly reaffirmed Leland v. Oregon on this point, and that Maryland's own courts, in Johnson v. State, had recognized the General Assembly's "unique prerogative" to balance the interests of the community and the accused in defining the insanity defense. The opinion closed by cautioning that any legislation shifting the insanity burden would need to be drafted carefully, since proving the insanity prongs could overlap factually with proving specific criminal intent, and it offered to review any specific legislative proposal in light of that concern.

Citations

Statutes:

• Title 12 of the Health-General Article
• HG §12-107
• HG §12-108
• HG §12-109
• HG §12-110
• HG §12-101(f)
• HG §12-101(d)
• Rule 731b. 1 and 2
• Code (1957, 1972 Repl.Vol.) art. 59, §25(a)

Cases:

• Mullaney v. Wilbur, 421 U.S. 684 (1975)
• Patterson v. New York, 432 U.S. 197 (1977)
• Rivera v. Delaware, 429 U.S. 877 (1976)
• Leland v. Oregon, 343 U.S. 790 (1952)
• Johnson v. State, 292 Md. 405, 424-25 (1982)
• Bradford v. State, 234 Md. 505 (1964)
• Langworthy v. State, 284 Md. 588 (1979)
• Langworthy v. State, 39 Md. App. 559, 561, 387 A.2d 634 (1978)
• Gardner v. State, 41 Md. App. 187, 396 A.2d 303 (1979)
• Spencer v. State, 69 Md. 28 (1888)
• Rowe v. State, 234 Md. 295, 305 (1964), cert. denied, 379 U.S. 924 (1954)
• Regie v. State, 9 Md. App. 346, 355 (1970)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Constitutional Law—Criminal Law—Insanity Defense—Burden of Proof—Due Process—Requiring Defendant to Prove Insanity Not Necessarily Unconstitutional—Need to Distinguish Between "Criminal Intent" (Mens Rea) and "Criminal Responsibility" (Sanity)

December 23, 1982

The Honorable Thomas W. Chamberlain, Sr
Maryland House of Delegates

You have requested our opinion on whether, as to issues of insanity in a criminal case, it would be constitutional to impose the "burden of persuasion" on the defendant, rather than, as is now the rule, on the prosecution. Under current State law, if a criminal defendant presents evidence of his or her insanity, the prosecution has the burden of rebutting that evidence by affirmatively proving, beyond a reasonable doubt, that the defendant in fact was sane when the criminal act was committed. You ask whether it would be constitutional to amend State law so as to require instead that, in such a case, the defendant must affirmatively prove that he or she in fact was insane when the criminal act was committed.

For the reasons given below, we believe that it would be constitutional to so amend State law. To do so, however, requires a careful assessment of, and the development of specific standards that would distinguish between, two related and somewhat overlapping concepts. The first concept involves the specific standard to be applied in this State in evaluating any insanity defense: "criminal responsibility" or, in the words of governing State law, the capacity to "appreciate the criminality of [one's] conduct" and to "conform that conduct to the requirements of law". The second, more general concept, involves one of the basic underlying elements of a crime that, constitutionally, must always be proven by the State: "criminal intent" or mens rea. The difficulty is how best to reassign the burden of persuasion as to the first, the insanity defense or "criminal responsibility", in a way that does not undercut or compromise the State's clear and continuing constitutional obligation to prove, as part of its case, the latter, the necessary "criminal intent".

I
Due Process Considerations

The Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to require the prosecution to prove beyond a reasonable doubt all elements of a crime. Mullaney v. Wilbur, 421 U.S. 684 (1975). There is, however, wide latitude afforded the states to define what those elements are; and, within some limits, states may place a burden on a defendant to prove an affirmative defense. Patterson v. New York, 432 U.S. 197 (1977).

In Patterson, the Supreme Court unequivocally stated that the United States Constitution permits a state "to burden the defendant with proving his insanity defense". 432 U.S. at 205 (citing Rivera v. Delaware, 429 U.S. 877 (1976) and Leland v. Oregon, 343 U.S. 790 (1952)). In essence, according to the Court:

"[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here." 432 U.S. at 210.

In Maryland as well, the State courts have explicitly recognized the "unique prerogative" of the General Assembly "to balance the interests of the community and the individual accused" in defining the insanity defense. Johnson v. State, 292 Md. 405, 424-25 (1982).

Thus, the General Assembly may define the insanity defense so as to place the burden of persuasion on the defendant, and the Due Process Clause of the United States Constitution presents no absolute bar to doing so. However, before drafting any legislation, it is important to examine any overlap that may exist between the mental element of a crime ("criminal intent"), on the one hand, and the insanity defense ("criminal responsibility"), on the other hand, to insure that a reassignment of the burden of persuasion as to the latter (sanity or criminal responsibility) does not unconstitutionally relieve the State of its continued, constitutionally-imposed, burden of proving the former (the mental element or criminal intent).

II
Elements of Guilt

Every crime contains two distinct "elements of guilt": (i) the physical element, or corpus delicti; and (ii) the mental element, or mens rea. The State must prove both of these elements beyond a reasonable doubt. Mullaney v. Wilbur. The mental element can range from simply intending to do an act without regard to the consequences (called "general intent") to intending to do an act in order to achieve a particular result (called "specific intent"). In addition, if a state recognizes the insanity defense, then, in order to give rise to punishment, the act must have been committed by an individual who was then sane.

Because most individuals are in fact sane, there is, at the outset of every criminal case, a presumption of sanity. This means that, unless the defendant challenges his or her sanity by bringing in some evidence of insanity, the State need not produce any evidence on that issue and the factfinder, be it judge or jury, does not consider it.

On the other hand, if the defendant raises the issue of insanity, the presumption of sanity no longer applies and the factfinder must decide the issue. Thus, in every case in which sanity is an issue, there are two determinations to be made: First, is the defendant guilty or not guilty of committing the particular criminal act? Second, if so guilty, was he or she sane or insane at the time of the commission of the act?

III
The Insanity Defense

As indicated above, the Supreme Court has held that the State must always prove the guilt of the defendant beyond a reasonable doubt. The second inquiry, that of responsibility, is left to the states to formulate as they wish. Maryland has, at least since 1964, required the State to prove sanity, in addition to the elements of guilt, beyond a reasonable doubt.

The present statutory provisions governing the insanity defense are found in Title 12 of the Health-General Article ("HG" Article). HG §12-107 contains the test of responsibility for criminal conduct:

"A defendant is not responsible for criminal conduct if, at the time of that conduct, the defendant, because of mental retardation or a mental disorder, lacks substantial capacity:

(1) To appreciate the criminality of that conduct; or

(2) To conform that conduct to the requirements of law."1

HG §12-108 sets forth the requirements of pleading insanity and of a special verdict; HG §12-109 specifies procedures for examination of the defendant; and HG §12-110 et seq. govern the case of "an individual [who has been] found not guilty of a crime by reason of insanity".2 Nowhere in the statute is a burden of persuasion allocated. Nor do the Maryland Rules of Procedure specify any burden: Rule 731b. 1 and 2, for example, merely governs the method and timing of interposing a defense of insanity. Rather, the present allocation of the burden of persuasion derives entirely from case law.

The present requirement that the State must prove sanity beyond a reasonable doubt once a defendant rebuts the presumption of sanity was first elaborated upon in Bradford v. State, 234 Md. 505 (1964). In that case, the Court stated that "insanity involves the mens rea or intent which is an essential element of the offense which the State must prove". 234 Md. at 514.

If that statement continued to be entirely correct today, if proving a defendant's sanity remains "an essential element of the offense", it would follow that the present burden on the State of proving a defendant's sanity would be constitutionally required and, as such, not subject to legislative change. That statement, however, has recently been recognized as no longer wholly accurate. Thus, in Langworthy v. State, 284 Md. 588 (1979), the Court of Appeals said:

1 The term "mental disorder" is defined in HG §12-101(f). The term "mental retardation", however, is not defined for purposes of Title 12; see Revisor's Note to HG §12-101.

2 The term "insane" is defined in HG §12-101(d) as meaning "not responsible for criminal conduct under the rule set forth in §12-107 of this title".

"We do not subscribe to the theory of the Court of Special Appeals that a finding that a defendant was insane at the time of the commission of the crime means that '[t]here is no crime.' Langworthy v. State, 39 Md. App. 559, 561, 387 A.2d 634 (1978). Its reasoning was that the finding of insanity establishes a lack of the mens rea. Id. We do not think that this is so in light of the conditions prescribed for a finding of insanity, namely 'as a result of mental disorder, [a defendant] lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.' Code (1957, 1972 Repl.Vol.) art. 59, §25(a)3. Neither of these tests is necessarily at variance with a general intent to commit a crime. See Gardner v. State, 41 Md. App. 187, 396 A.2d 303 (1979)." 284 Md. at 599 n. 12.4

In the last case referred to in this quote, Gardner v. State, 41 Md. App. 187 (1979), Judge Lowe pointed out that the test for insanity at the time Bradford was decided had since been significantly amended:

"[The premise that an insane person is mentally incapable of forming criminal intent], while true under the McNaughten test for insanity used at the time Bradford was written, is only a half truth under the current Maryland substitution of the American Law Institute test. . . . Under the McNaughten-Spencer test (see Spencer v. State, 69 Md. 28 (1888)), the only question for the factfinder was the ability of the offender 'to distinguish between right and wrong and understand the nature and consequences of his act as applied to himself. . . .' Rowe v. State, 234 Md. 295, 305 (1964), cert. denied, 379 U.S. 924 (1954).

3 Article 59, §25(a) has since been revised, "without substantive change", as HG §12-107. See Revisor's Note to HG §12-107.

4 The crime in Langworthy was rape, a "general intent" crime.

Obviously, under that test, the Bradford Court was correct in pointing out that an insanity issue involved 'the mens rea or intent which is an essential element of the offense which the State must prove,' Id.[, 234 Md.] at 514, or, as broadly translated by Chief Judge Murphy for our Court in Regie [v. State, 9 Md. App. 346, 355 (1970)], 'an insane person is mentally incapable of forming a criminal intent.' [However, s]ince the 1967 modified adoption of the American Law Institute test by the Legislature [now, HG §12-107], that is no longer necessarily true." 41 Md.App. at 194.

Two principles emerge from the foregoing: First, as presently defined, neither prong of the insanity defense, either the lack of capacity "[t]o appreciate the criminality of [one's] conduct" [HG §12-107(1)] or the lack of capacity "[t]o conform that conduct to the requirements of law" [HG §12-107(2)], is necessarily inconsistent with general criminal intent. Second, the volitional prong, the lack of capacity "[t]o conform [one's] conduct to the requirements of law" [HG §12-107(2)], does not necessarily affect the person's ability to form a particular specific criminal intent.

A problem arises, however, because proof of either insanity prong may involve factual determinations necessary to the proof of a particular specific criminal intent. This problem is discussed in Note, Constitutional Limitations on Allocating the Burden of Proof of Insanity to the Defendant in Murder Cases, 56 B.U.L. Rev. 499, 510-18 (1976).5 For example, in a first degree murder case, the prosecution must prove beyond a reasonable doubt that the defendant's intentional killing of another person (i) was willful, deliberate, and premeditated and (ii) was without justification, excuse, or mitigation. To require a defendant to prove that his or her mental disorder prevented the defendant from appreciating the criminality of that conduct or from conforming that conduct to the requirements of law might well involve disproving some of those same elements.

5 This Note was written before the Supreme Court, in Patterson v. New York, reaffirmed Leland v. Oregon.

IV
Conclusion

In summary, the Supreme Court's explicit reaffirmation of Leland v. Oregon (permitting placement on the defendant of the burden of persuasion as to his or her insanity), especially after its decision in Mullaney v. Wilbur (requiring the State to prove all elements of the offense beyond a reasonable doubt), would appear to indicate that a state statute placing the burden of persuasion as to insanity on the defendant is not of itself constitutionally defective.

Nevertheless, we should not rush to effect such a change without carefully analyzing the possible resulting inconsistencies between requiring the State to prove the necessary elements of the crime, including the mens rea or mental element, while, at the same time, permitting the State to require the defense to prove insanity.

We would be happy to review with you any specific legislative proposals in light of the foregoing discussion.

Stephen H. Sachs, Attorney General
Deborah K. Handel, Chief, Criminal Appeals
Avery Aisenstark, Chief Counsel,
Opinions and Advice