Should courts instruct juries as to the consequences to a defendant of a not guilty by reason of insanity verdict

About: This article is published in Journal of Criminal Law & Criminology.The article was published on 1995-03-22 and is currently open access. It has received 2 citations till now. The article focuses on the topics: Poison control & Insanity.

Full text

Journal of Criminal Law and Criminology
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Should Courts Instruct Juries as to the
Consequences to a Defendant of a Not Guilty by
Reason of Insanity Verdict
Randi Ellias
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0091-4169/95/8504-1062
THE
JOURNAL
OF
CRIMINAL
LAW
&
CRIMINOLOGY
Vol.
85,
No.
4
Copyright
©
1995
by
Northwestern
University,
School
of
Law
Printed
in
U.S.A.
SHOULD
COURTS
INSTRUCT
JURIES
AS
TO
THE
CONSEQUENCES
TO
A
DEFENDANT
OF
A
"NOT
GUILTY
BY
REASON
OF
INSANITY"
VERDICT?
Shannon
v.
United
States,
114
S.
Ct.
2419
(1994)
I.
INTRODUCTION
In
Shannon
v. United
States,
1
the
United
States
Supreme Court
held
that
under
the
Insanity
Defense Reform
Act
of
1984
(IDRA),
courts
need
not
instructjuries
on
the
consequences
to
defendants
of
a
verdict
of
"not
guilty
by
reason
of
insanity
(NGI)."2
The
Court
first
held
that
the
IDRAcontains
no
provision
requiring
such
an
instruc-
tion.
3
The Court
also
ruled
that
general federal
practice
did
not
man-
date
such
an
instruction.
4
This
Note
argues
that
the
Court
properly
held
that
the
IDRA
does
not
require
such
an
instruction,
even
though
its
legislative
history
implies
that
Congress
envisioned
that
courts
would
give
it.
This
Note
further
argues
that
the
absence
of
empirical
evidence
indicating
that
jurors
commonly
misunderstand
the
nature
of
an
NGI
verdict
supports the
Court's
position
that
general
federal
practice
does
not
require
the
instruction.
Finally,
this
Note
contends
that
the
longstanding proscription
against
telling
jurors
the
conse-
quences
of
their
verdict
remains
in
the
absence
of
empirical
evidence
indicating
that
such
an
instruction
might
aid
the
defendant.
II.
BACKGROUND
To
properly
assess
the Court's
decision
in Shannon
v.
United
States,
it
is
necessary
to
examine
three
governing
factors:
the
role
of
the
jury
throughout
history;
the
effect
that
the
passage
of
the
IDRA
had
on
the
insanity
defense;
and
various
federal
circuit
court
decisions
regarding
instructing
the
jury
on
the
legal
consequences
of
an
NGI
verdict.
I
Shannon
v.
United
States,
114
S.
Ct.
2419 (1994).
2
Id.
at
2428.
3
Id.
at
2425.
4
Id.
at
2427.
1062

JURY
INSTRUCTIONS
A.
THE
HISTORICAL
EVOLUTION
OF THE
ROLE
OF
THE
JURY
The
modem
jury
finds
its
roots
in
eleventh
century
England,
when
courts
initiated
a
practice
of
calling
the
defendant's
neighbors
to
testify
about
various
facts
of
the
case
at
bar.
5
Eventually,
courts
be-
gan
to
ask
these
witnesses,
known
collectively
as
"the
presenting
jury,"
to
determine
whether
the
facts
warranted
a
verdict
of
guilty
or
not
guilty.
6
By
the
fourteenth
century,
the
process
had
developed
to
the
point
where
the
jury
that returned
the
verdict
(known
as
the
"petit
jury")
was
different
from
the
group
of
people
who
testified.
7
As
a
re-
sult,
the
jury's
verdict
became
based
not
on
the
knowledge
of
its
own
members,
but
on
the
knowledge
of
other
witnesses.
8
For
the
first
time,
the
jury
assumed
its
current
role
as
the finder
of
fact.
9
The
United
States
inherited
the
jury
in
this
form
from
Great
Brit-
ain.
After
the
Revolutionary
War,
the
Framers
recognized
the
right
to
trial
by
jury
as
fundamental
to
the
protection
of
individual
liberty.'
0
The
Constitution
embodies
this
recognition
in
the
Sixth
and
Seventh
Amendments.
11
At
the
time
the
Constitution
was
framed,
however,
the
bounda-
ries
between
the
role
of
the
jury
and
the
role
of
the
judge
lacked
clear
definition.
Courts
generally
upheld
the
presumption
that
the
jury
functioned
solely
as
a
factfinder,
while
the
judge
remained
the
arbiter
of
the
law.
12
At
the
same
time,
however,
the
judge
commonly
in-
structed
juries
that
they
possessed
the
right
to
determine
the
law
as
well
as
the
facts,
and
that
they
could
reject
the
judge's
determination
of
the
law.
1
3
In
the mid-nineteenth
century,
courts
began
to
curb
this
virtually
unfettered
power
of
the
jury
with
the
use
of
such
mechanisms
as
the
directed
verdict
and
the
special
verdict.
14
Finally,
the
United
States
Supreme
Court,
which
had
previously
upheld
the
jury's
power
to
de-
cide
both
the
facts
and
the
law,
ruled
that
in
federal
criminal
cases
the
5
RITA
SIMON,
THEJURW.
ITS
ROLE
IN
AzmucAN
Socimy
5
(1980).
6
VALERIE
P.
HANs
&
NEIL
VIDMAR,
JUDGING
THE
JURY
27
(1986).
7
Id.
8
Id. at
28.
9 Id.
10
Id.
at
36.
11
See
U.S.
CONST.
amend.
VI
("
In
all
criminal
prosecutions,
the
accused
shall
enjoy
the
right
to...
[a
trial]
by
an
impartial
jury
of
the
State
and
district wherein
the
crime
shall
have
been
committed..
.
.");
U.S.
CONST.
amend.
VII
("In
suits
at
common
law
....
the
right
of
trial
by
jury
shall
be
preserved,
and
no
fact
tried
by
jury
shall
be
otherwise
re-
examined
in
any
Court
of
the
United
States
...
12
HAs
&
VIDMAR,
sup
ra
note
6,
at
38.
13
Id.
14
Id.
at
39.
1995]
1063

SUPREME
COURT
REVIEW
jury
ought
to
accept
the
judge's
instructions
on
the
law.'
5
Thus,
while
the
jury
still
had
the
ability
to
disregard
its
instructions
without fear
of
punishment,
it
no
longer
possessed
the
Court's
sanction
to
do
S0.16
This
view
of
the
proper
disposition
ofjudicial
power
between
the
judge
and
the
jury
persists
today.
Under
this
formulation,
the
legal
consequences
of
a
particular
verdict
are
a
question
of
law,
within
the
exclusive
province
of
the
judge.
B.
FEDERAL
COURTS
ON
THE
COMMITMENT
INSTRUCTION
PRE-IDRA
Prior
to
the
passage
of
the
IDRA
in
1984,
most federal
jurisdic-
tions
did
not
distinguish
a
verdict
of
"not
guilty
by
reason
of
insanity"
from
their
standard
"not
guilty"
verdict.
17
Thus,
someone
found
NGI
received
the
same
treatment
under
the
law
as
someone
found
simply
"not
guilty."
These
jurisdictions
generally
refused
to
allow
courts
to
tell
the
jury
the
legal
consequences
to
the
defendant
of
an
NGI
verdict.1
8
When explaining
their
refusal
to
give
such
an
instruction,
most
courts
invoked
a
similar
rationale-that
the
jury
lacked
any
role
in
sentencing
and,
therefore,
should
not
take
sentencing
into
account
when
reaching
a
verdict.
19
Moreover,
courts
feared
that
an instruc-
tion
regarding
the
legal
consequences
to
the
defendant
of
any
verdict
would
distract
the
jury
from
its
factfinding role
and
invite
compromise
verdicts.
20
Such a
verdict
might
arise
when
ajury
returns
a
verdict
of
not
guilty
in
a
case
in
which
the
prosecution
has
clearly
met
its
burden
of
proof,
simply
because
the
jury
feels
that
the
defendant
does
not
deserve
as
harsh
a
punishment
as
the
law
prescribes.
21
This
fear
of
compromise
verdicts,
as
well
as
the
desire
to
maintain a
clearly
de-
fined
division
of
labor
between
the
judge
and
the
jury,
prompted
courts
to
refuse
to
give
an
instruction regarding the
sentencing
ramifi-
cations
of
any
verdict.
The
refusal to
instruct
the
jury
about
the
consequences
of
an
NGI
verdict
actually
worked
to
the
defendant's
advantage
in
most
federal
jurisdictions.
As
stated,
with
the
exception
of
the
law
of
the
District
of
Columbia,
no
federal
law
provided
for
an
NGI
verdict
separate
from
15
Id.
at
40
(citing
Sparf
&
Hansen
v.
United
States,
156
U.S.
51
(1895)).
16
Id.
17
Joseph
P.
Liu,
Note,
Federal
Jury
Instructions
and
the
Consequences
of
a
Successful
Insanity
Defense,
93
COLUM.
L.
Rav.
1223,
1229
(1993).
18
See
Pope
v.
United
States,
298
F.2d
507
(5th
Cir.
1962).
19
See
Rogers
v.
United
States,
422
U.S.
35,
38 (1975);
United
States
v.
McCracken,
488
F.2d
406,
423
(5th
Cir.
1974);
United
States
v.
Borum,
464
F.2d
896,
901
(10th
Cir.
1972).
20
Pope, 298
F.2d
at
508.
21
Liu,
supra
note
17,
at
1228.
This
phenomenon
is
also
known
as
"jury
nullification."
1064
[Vol.
85

JURY
INSTRUCTIONS
the
more standard
verdict
of
"not
guilty."
22
Furthermore,
no
federal
statute
allowed
the
trial
court
to
mandate commitment
for
an
NGI
acquittee.
23
Rather,
the
states
had
to
pursue
separate
civil
commit-
ment
procedures
against
the
NGI
acquittee.
24
NGI
acquittees
often
went
free
because
the
federal
courts
and
the
state
courts
generally
allocated
the
burden
of
proof
of
insanity
differ-
ently.
25
To
meet
the
burden
under
federal
law,
the
accused often
needed
only
to
create
a
reasonable
doubt
as
to
their
sanity.
26
State
commitment procedures,
however,
generally
required
affirmative
proof of
insanity.
2 7
Because
of
the
disparity,
an
NGI
acquittee
might
offer
enough
evidence
of
insanity
to
satisfy
the
federal
requirement,
without
providing
enough
evidence
to
enable
the
prosecution
to
trig-
ger the
state's
commitment procedures.
Thus,
the
NGI
acquittee
might
escape
institutionalization.
The
prohibition
against
informing
juries
of
the
consequences
of
a
successful
insanity
plea,
therefore,
pro-
tected
defendants.
It
foreclosed
the
possibility
that
the
prosecution
would
play
on
the
jurors'
fears
that
a
dangerous
person
would
gain
immediate
release
into
society
to
gain
a
conviction.
Unlike
the
other
federal
jurisdictions,
the
District
of
Columbia
did
statutorily
mandate
commitment procedures
following
the
return
of
an
NGI
verdict.
28
This
precluded
the
possibility
that
an
NGI
acquit-
tee
might
gain
immediate
release.
Not
surprisingly,
the
District
of
Co-
lumbia
courts
held
different
beliefs
about the
propriety
of
telling
the
jury
the
consequences
of
that
verdict.
In
Lyles
v.
United
States,
29
the
D.C.
Court
of
Appeals
held
that
courts
should
always
inform
the
jury
that
an
NGI
verdict
led
to
the
defendant's
involuntary
commitment,
unless
the defendant
affirmatively
indicated
that
he
did
not
wish
the
court
to
the
give
instruction.
30
In
so
holding,
the
court
acknowledged
the
familiar
rule
that
the
jury
should
not
concern
itself
with
the
conse-
quences
of
its
verdict.
3 1
The
court
found
persuasive,
however,
the ar-
gument
that jurors
did
not
hold
a
common
understanding
of
the
nature of
an
NGI
verdict
32
The court
professed
that
the
jury
had
a
22
See
Borum,
464
F.2d
at
900.
23
Id.
at
901;
McCracken,
488
F.2d
at
422;
United
States
v.
Portis,
542
F.2d
414,
421
(7th
Cir.
1976).
24
Liu,
supra
note
17,
at
1228.
25
Henry
T.
Miller,
Comment,
Recent
Changes
in
Criminal
Law:
The
Federal
Insanity
De-
fense,
46
L
L.
Ray.
337,
353
(1985).
26 Id.
at
354.
27
Id.
at
358-54.
28
D.C.
CODE
ANN.
§
24-301
(1981).
29
254
F.2d
725
(D.C.
Cir.)
(en
banc),
cert.
denied,
356
U.S.
961
(1957).
30
Id. at
729.
31
Id.
at
728.
32
Id.
19951
1065

Frequently asked questions

Q1. What was the reason why courts refused to give instruction regarding the sentencing ramifications?

This fear of compromise verdicts, as well as the desire to maintain a clearly defined division of labor between the judge and the jury, prompted courts to refuse to give an instruction regarding the sentencing ramifications of any verdict. 

Q2. Why did the jury refuse to give Shannon's request?

"97 Shannon's request arose out of his fear that, without this instruction, the jury might mistakenly believe that he would be immediately released into society, and thus the jury might return a guilty verdict simply to forestall this possibility. 

Q3. What is the rule that juries are presumed to follow their instructions?

The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process;1068 [Vol. 

Q4. What did Justice Stevens argue about the refusal to instruct as to the consequences of an NGI?

The refusal to instruct as to the consequences of an NGI verdict now not only failed to protect defendants, but actually harmed them by failing to disabuse jurors of the erroneous belief that an NGI acquittee gained immediate release.