West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the West Virginia University College of Law [Spring][2006]




Insanity Defense

Standard Jury Instruction: The Court instructs the members of the jury that an accused is not responsible for his act if at the time of the commission of the act it was the result of a mental disease or defect causing the accused to lack the capacity either to appreciate the wrongfulness of his act, or to conform his act to the requirements of the law.

There is a presumption that the accused was sane at the time of the alleged commission of the alleged crime. However, if any evidence was introduced by him/her or by the State fairly raising doubt upon the issue of his/her sanity at that time, the presumption of sanity at that time ceases to exist; and the State then has the burden to establish the sanity of the accused beyond a reasonable doubt and that if the whole proof upon that issue leaves the jury with a reasonable doubt as to the Defendant's sanity at that time, the jury must accord him/her that benefit and acquit him/her.

Proposed Jury Instruction: A person is legally insane and thereby not responsible for criminal conduct if at the time of [his] [her] alleged criminal conduct, [he] [she] had a mental disease or defect, and that as a result of this mental disease or defect lacked the capacity to either:

a) appreciate the wrongfulness of [his] [her] conduct; or

b) conform [his] [her] conduct to the requirements of law.

In a criminal proceeding every person is presumed to be sane. This presumption of sanity must give way and be set aside if sufficient evidence has been presented to fairly raise a doubt as to the defendant's sanity. When a fair doubt has been raised about defendant's sanity, by whatever evidence may be presented to you, the State must then prove, beyond a reasonable doubt, that the defendant was sane at the time of the alleged criminal conduct. If the prosecution has not proven, beyond a reasonable doubt, defendant's sanity at the time of the alleged offense, then you must find the defendant not guilty by reason of insanity.

A finding that a defendant suffered, at the time of the alleged offense, from a mental disease or defect, standing alone, is insufficient to establish insanity. A person may be mentally ill or mentally abnormal and yet not be insane for purposes of criminal responsibility.

In reaching your decision about the defendant's sanity, you may consider all the evidence as to the defendant's mental condition based on testimony concerning observations made of the defendant by experts or laypersons.

Although you may consider evidence of the defendant's mental condition before and after the alleged offense occurred, you may consider it only as it may aid you in determining the defendant's state of mind at the time of the alleged crime. Regardless of its duration of the mental disease or defect, insanity that existed at the time of the commission of the crime is a defense to the crime.

[Finally, you are not bound by the opinions or conclusions of experts who may have testified as to the defendant’s sanity. You must determine the defendant’s sanity at the time of the alleged criminal conduct by considering the expert testimony in light of all other evidence presented concerning the defendant's mental functioning.]


1. The test for insanity in West Virginia is based on the test outlined in the Model Penal Code which significantly modifies the older M’Naghten test by adding a volitional element of capacity to conform behavior to the requirements of law. This element was added to the M’Naghten Rule’s requirement of capacity to appreciate wrongfulness. Although some jurisdictions use the term "criminality," West Virginia has adopted the term "wrongfulness."

2. The insanity defense and jury instruction on sanity requires the jury to address the problem of burden of proof. The jury should be instructed as to the following: 1) the initial presumption of sanity; 2) the burdern on the defendant to present evidence which calls his/her sanity into question; and 3) the shifting of the burden, when the defense has fairly raised a doubt about his/her sanity, to the prosecution, which then must show, beyond a reasonable doubt, that the defendant is sane.

Jury instructions including descriptions of the presumption of sanity as well as the burden shifting adopted in the revised proposed jury instruction has been approved by the West Virginia court in Myers, Milan, Grimm, Daggett, and most recently, in Lockhart.

We have considered the problem raised by including, in the jury instruction, information about the presumption of sanity and the defendant’s initial burden to raise the sanity issue, when it can be assumed that the defendant's failure to meet the threshold burden (of initially raising the issue, going forward with the defense, presenting evidence which fairly raises a doubt about the issue of insanity) must be met before the defendant is entitled to a jury instruction on sanity. We find, however, that in addition to West Virginia, courts in Pennsylvania, Florida, Oklahoma, Massachusetts, California, and Indiana all have included this basis information on the defendant's initial burden.Insanity instructions from the states we examined include either the defendant’s initial burden to prove insanity, the presumption of sanity, or both. (We found that Kentucky failed to describe either the presumption of sanity or the burden on the defendant to show evidence of insanity.) Although it is true that not all states include instructions on these issues, we have determined that they should be included.

3. We have included in the insanity instruction a statement that requires the jury to distinguish between between legal insanity and mental disabilities more generally. We adopt from State v. Painter, the expression that “a mental disability alone is insufficient to establish insanity at the time of the commission of the crime. Thus, a defendant must prove more than that he is suffering from [an alleged mental disease]." We add this provision so to clearly explain to the jury the difference between mental disabilities, in general, and legal insanity that allows the defendant to avoid criminal responsibility.

4. The provision in the jury instruction about the time element--the insanity must exist at the time of the alleged offense--is adopted from a Pennsylvania jury instruction (reinforced by a California instruction).

5. We included a provision in the instruction to ensure that jurors are aware that expert testimony is not, itself, determinative of their decision. Jurors should be instructed that in determining the defendant’s sanity for purposes of criminal responsibility, they are not bound to follow any expert’s ultimate conclusions. This issue was addressed in Reynolds v. City Hospital where the court held that expert testimony is no more conclusive than the testimony of any other witness. In Reynolds, the court approved of the following instruction: “Just as in the case of non-expert witnesses you may from all of the foregoing considerations and all other evidence and circumstances appearing in the trial give to the testimony of each expert witness such credit and weight as you believe such evidence is entitled to receive. Furthermore, after weighing and considering the testimony and opinion of an expert witness, you may believe or disbelieve the testimony and the opinion of such witness in whole or in part.” Reynolds v. City Hospital, 207 W. Va. 101 (2000). Since an insanity defense so often involves expert testimony, we have made this weighing of the evidence provision a part of the jury instruction.

Relevant Cases:

1. The major point in criminal cases involving questions of the defendant's sanity can be simply put: No person may be convicted of a crime if that person was legally insane at the time of the commission of the acts that constitute the crime. See State v. Massey, 178 W.Va. 427, 359 S.E. 2d 865 (1987).

2. The presumption of sanity and the appropriate burdens to prove and disprove it are explored in State v. Milan, 163 W.Va. 752, 260 S.E. 2d 295 (1979).

3. The initial burden of going forward lies with the defendant. The defendant is required to raise an insanity defense by presenting evidence which fairly raises a doubt that, at the time of the alleged offense, he or she lacked the capacity either to appreciate the wrongfulness of his or her act or to conform his/ her act to the requirements of the law. See State v. Lockhart, 208 W. Va. 622 (2000).

4. A criminal defendant is entitled to elicit testimony about the prior physical beatings she received in order that the jury may fully evaluate and consider the defendant's mental state at the time of the commission of the offense. State v. Steele, 178 W. Va. 330, 335 (W. Va. 1987).