This is an appeal from the denial of plaintiff’s petition for a writ of habeas corpus seeking his release from the forensic unit of the New Hampshire Hospital. The plaintiff’s exceptions to this order were transferred to this court by Keller, C.J. This court reverses the order below and outlines the procedures to be used by the superior court in criminal cases when insanity is, or might be, an issue.
On December 24, 1974, plaintiff was arrested and charged with the murder in the first degree of Helen Morrison. In January 1975, the plaintiff was indicted by the Merrimack County Grand Jury for the crime of second degree murder. In response to the lower court’s granting of the State’s motion for a pretrial psychiatric examination, the defense filed a notice of its intent to rely on the defense of insanity. This notice, however, was not signed by the defendant and was later withdrawn.
After the defense withdrew its noticе, the State, believing the plaintiff to be insane, requested that the grand jury be reconvened pursuant to RSA 651:8. Under this statutory provision, the grand jury has the power to decline to indict if it is convinced that the accused is insane. The trial court’s duty, pursuant to RSA 651:9 (Supp. 1975), is then to make the discretionary determination whether the accused should be released or committed to the State’s prison or hospital.
The defendant objected to this procedure, alleging that RSA 651:8 and RSA 651:9 (Supp. 1975) violated the due process and equal protection clauses of the Federal Constitution. These issues were reserved and transferred to this court by
Keller,
C.J. This
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court held that the trial court had the discretionary authority to reconvene the grand jury, and that the statutes challenged were constitutional.
State v. Novosel,
Following that decision on June 9, 1975, the grand jury was recalled. Under the provisions of RSA 651:8 it оmitted to return an indictment against the plaintiff and certified him to the court as insane. The plaintiff was refused the privilege of presenting evidence to the grand jury and objected to the proceeding.
On June 12, 1975, after a hearing in the Merrimack County Superior Court conducted under the provisions of RSA 651:9 (Supp. 1975) and 135:30-a (Supp. 1975), the plaintiff was committed to the New Hampshire State Prison and Hospital for life until or unless earlier dischаrged, released or transferred by due course of law. The court directed that the order be reviewed at the expiration of two years. See RSA 651:ll-a (Supp. 1975).
The instant petition was filed on December 3, 1976. A hearing was held before Keller, C.J. on February 18, 1977, resulting in the February 22 order denying plaintiff’s petition.
Throughout the proceedings from the day of his arrest, the plaintiff has contended first, that he is sane and second, that he is not guilty of any crime. He further contеnds that the action of the grand jury in June 1975, denied him, in one broad sweep, all the due process guarantees afforded to one accused of the commission of a crime. He argues that the procedure followed by the State denied him the opportunity to ever contest the allegations lodged against him or to present rebuttal evidence on the question of his sanity. He was “whisked away into the twilight world of the insane and subjected to a committal hearing where the only issue was his dangerousness to be at large, protesting in vain that he did not commit the original crime with which he was charged.”
Kanteles v. Wheelock,
The factual setting of the instant case bears a marked similarity to the facts of
State v. Ray,
the industrial school is not a prison, that the order of commitment was not a sentence, and that their detention is not punishment. The contention is, that the industrial school is a part of the school system of the state, and that *119 the state as parens patriae may detain in the school such scholars as may need its discipline.
Id. at 408.
The factual analogy to the plaintiff’s case is clear. The plaintiff was not convicted of any сrime, was not tried, and had no opportunity to defend. The forensic unit in which he is currently confined is comparable to the industrial school in that it is restricted to those accused of criminal behavior and the detention is “involuntary and constrained.”
State v. Ray,
This court in Ray analyzed an Ohio statute that authorized a grand jury to omit returning an indictment against a minor and instead make a return to the court that the minor was a suitable person to be committed to the house of refuge. Although such procedure had been held constitutional under Ohio law at the time, this court was “not convinced of the soundness of its reasoning or conclusion: ”
The proceedings by which the accused was adjudged a suitable person to be committed to the house of refuge were conductеd in secret, without his knowledge or consent, or that of his parent or guardian, with no opportunity to be represented by counsel, to be confronted with and cross-examine the witnesses for the prosecution, or to produce witnesses in his own behalf .... A judgment rendered upon such an ex parte hearing is as little calculated to command the respect of the community as the proceedings of the ancient court of star chamber. State v. Ray,63 N.H. at 411 .
It is therefore clear that this court is suspect of procedures that purport to aid and benefit the accused at the expense of constitutional safeguards. The plaintiff argues that the grand jury is not an appropriate body for a determination of insanity, given the ex parte nature of its proceedings and its historical nature as an accusatory body whose standard of review is probable cause.
A grand jury dоes not pass on the guilt or innocence of the defendant, but merely determines whether he should be brought to trial. United States v. Knowles,147 F. Supp. 19 -21 (D.D.C. 1957).
*120 In the instant case, no court has ever passed upon the guilt or innocence of the plaintiff. He has never admitted committing the crime charged; he has been denied the opportunity to confront and cross-examine witnesses, to present evidence in his own behalf, and to have a determination of his culpability.
In
Kanteles v.
Wheelock,
The critical question оf sanity has already been determined.
It is the grand jury’s determination of insanity certified to the Superior Court which is both the first step in the process which ultimately leads to committal and the last step at which any evidence on the underlying alleged incident is considered. . . . Once the grand jury finds him insane, the petitioner stands to suffer loss of liberty and the stigma of criminal commitment without being convicted of a crime. It is, therefore, at this stage where due process safeguards should attach. Kanteles v. Wheelock,439 F. Supp. at 510 (footnote omitted).
The court concluded that the provisions challenged in
Kanteles,
and in the instant case, were unconstitutional because due process is required at this critical stage. Relying on
In Re Gault,
We agree with the
Kanteles
court and conclude that the State due process clause, N.H. Const. pt. 1, art. 15, mandates the unconstitutionality оf that part of RSA 651:8 relating to the grand
*121
jury.
State v. Novosel,
The growth in the use of the insanity plea and the RSA 651:8 procedure has been dramatic. In 1938-40, the report of the attorney general revealed a dozen homicides, all of which ended in prison sentences. By 1975, however, the attorney general, in a year-end report dated January 6, 1978, revealed that six of fifteen homicide cases went the way of forensic unit commitments.
The State may no longer utilize RSA 651:8 to unilaterally present evidence to a grand jury so as to avoid litigating the issue of criminal liability before a trial jury.
To further clarify the insanity plea’s relationship to our criminal law we now outline the procedures to be utilized in future cases.
I. Commitment for Observation.
RSA 135:17 (Supp. 1975) authorizes the superior court to order a pretrial psychiatric examination of a person indicted or bound over awaiting indictment “if a plea of insanity is made in [superior] court, or said court is notified by either party that there is a question as to the sanity of the respondent. . . .” The pretriаl examination shall be completed within thirty days after the date of the order. Id.
Often, however, these pretrial examinations take months to complete, and if a defendant is not released on bail, usually result in confinement to the forensic unit. In the future, motions under RSA 135:17 (Supp. 1975) must be in writing, specifying in detail the behavior observed by counsel that forms the basis for questioning the defendant’s sanity or competency to stand trial. Courts may wish to have specific information supplemented by testimony of witnesses in appropriate cases. The court’s order must specify whether the examining psychiatrists are to determine defendant’s competency to stand trial and to assist counsel in the defense of the case or to determine insanity at the time of the commission of the alleged crime, or to do both. This will aid the psychiatrists in reporting relevant informаtion and may decrease the number of inappropriate or vague referrals. See generally Kauf *122 man, Evaluating Competency: Are Constitutional Deprivations Necessary'l, 10 Am. Crim. L. Rev. 465 (1972); Transfer 18, National Clearinghouse for Criminal Justice Planning and Architecture 2-3 (May 1977); Superior Court Rule 103 (January 1, 1977). The superior court may wish to establish rules and procedures implementing these requirements.
II. Plea of Not Guilty by Reason of Insanity.
RSA 651:8-a (Supp. 1975) provides broadly that “[a]ny person prosecuted for an offense may plead that he is not guilty by reason of insanity or mental derangement.” If the State disputes insanity at the time of the commission of the crime the matter will be tried solely on the question of insanity, because the plea of not guilty by reason of insanity [hereinafter N. G. I.] is one of confession and avoidance and admits that the defendant committed the acts alleged.
State v. Long,
III. Not Guilty and Bifurcation.
A defendant may choose to plead not guilty and have a jury trial on the merits of the charge, thus denying that he committed the offense, but may later seek to avoid the responsibility for his act by raising insanity as a defense. RSA 628:2 II and Superior Court Rule 102 (January 1, 1977) require notice of such a defense to be *123 made within ten days of the entry of a not guilty plea or later only if good cause is shown. Such a defense, if intended to be used, must be accompanied by “a notice of such intention setting forth the grounds therefor.” Superior Court Rule 102. To avoid surprise, insanity may not be raised under a not guilty plea without notice to the State. RSA 628:2 II; Superior Court Rule 102.
Previously the statutory plea of insanity constituted a waiver of all other defenses, RSA 607:2 (repealed by Act of November 1, 1973, ch. 370:44, [1973] N.H. Laws 341), while the common law plea of not guilty preserved any other defenses including insanity.
See State v. Forcier,
The two-stage procedure implies that guilt can be fully determined without an inquiry into the insanity of the accused. The bifurcation results “in the complete legal separation of ‘guilt’ from ‘sanity’ because the factfinder in the guilt phase is not allowed to hear any evidence of mental disease or defect until guilt has been determined.” Comment, Mens Rea and Insanity, 28 Me. L. Rev. 500 (1977). To actuate this procedure, an accused couples a plea of not guilty with a defense of insanity.
In a bifurcated trial, the accused will bе tried first by a jury that is unaware of the insanity affirmative defense. If the jury returns a verdict of not guilty, the trial terminates, and the second, or “sanity” phase, before the same jury, is never reached.
See, e.g., State v. Hebard,
To bifurcate assumes that mens rea and insanity can coexist, and therefore, one may be found guilty in phase one and insane in the second phase. Many courts feel that a guilty mind is necessary for culpability and that an insane person is incapable of having mens rea.
See, e.g., United States v. Currens,
A person may well specifically intend to burn a structure, or to commit a robbery, even though he may suffer from a mental disease or defect which causes him to formulate such an intent. Maine law simply holds that he is not criminally responsible for consummating such a crime under the circumstances. Id. at 429-30.
Of course, under the Criminal Code here, as in Maine, the State must prove that the defendant acted purposely, knowingly, recklessly or negligently with respect to each material element of the offense. Compare RSA 626:2 I with Me. Rev. Stat. tit. 17-A § 11.1 (Supp. 1977). Thus if an accused had such a cognitive disability that he actually believed that he was squeezing lemons rather than someone’s neck, he could not be culpable under our Code definitions. See Wales, An Analysis of the Proposal to “Abolish” the Insanity Defenses in S.1: Squeezing a Lemon, 124 U. Pa. L. Rev. 687, 690 (1976). In such a unique case, a bifurcated hearing might not be appropriate.
In the normal course, though, the not guilty plea coupled with an insanity defense should be bifurcated upon request of the defendant. Otherwise, confusion might result. “It is difficult to persuade a jury to acquit with the somewhat convoluted argument that the defendant did not commit the offense, but that if he did do it, it was because he was insane.” Shadoan, Raising the Insanity Defense: The Practical Side, 10 Am. Crim. L. Rev. 533, 538 (1972).
[S] ubstantial prejudice may result from the simultaneous trial on the pleas of insanity and “not guilty”. . . . [E] vidence that the defendant has a dangеrous mental illness invites the jury to resolve doubts concerning commission of the act by finding him not guilty by reason of insanity, instead of acquitting him, so as to assure his confinement in a mental hospital. Holmes v. United States,363 F.2d 281 , 282 (D.C. Cir. 1966).
We therefore hold that if a not guilty plea is coupled with an insanity defense, the defendant shall, upon request, receive a
*125
bifurcated hearing before the same judge and jury. Evidence relating to the defendant’s mental state is admissible in the guilt detеrmination phase only to show whether the defendant had the requisite intent
(e.g.,
purposely or knowingly) for commission of the crime under RSA 626:2. Evidence tending to show legal sanity or legal insanity, such as expert psychiatric testimony, would not be admissible in the first stage.
People v. Wells,
IV. Not Guilty Coupled With, the Defense of Insanity When Bifurcation Is Not Desired.
A defendant may wish not to bifurcate but nonetheless to plead not guilty and raise the insanity issue under RSA 628:2 II as an affirmative defеnse. At trial, after the State has rested upon evidence probative of the requisite intent or culpability, RSA 626:2, and other elements of the crime charged, the defendant may go forward with his affirmative insanity defense.
See Commonwealth v. Vogel,
V. Burden of Proof.
In some jurisdictions in this country, “sanity” signifies a substantive element of the crime charged, requiring proof beyond a reasonable doubt by the State. In other jurisdictions, sanity remаins a “policy presumption,” requiring that the defendant prove insanity in order to avoid criminal responsibility and punishment. *126 Note, The Burden of Proof And The Insanity Defense After Mullaney v. Wilbur, 28 Me. L. Rev. 435, 452 (1977).
In all jurisdictions the presumption of sanity ... places on the defendant the initial burden of production or going forward with evidence on the issue. In the substantive element jurisdictions the state bears the ultimate burden of persuasion, while in the policy presumption jurisdictions the defendant must both raise and persuade on the issue of insanity. Id. (footnote omitted).
New Hampshire has been one of the States aligned with the “sanity as an element” theory. In
State v. Bartlett,
Last year the United States Supreme Court decided
Patterson v. New York,
*127
We now reverse
State v. Bartlett,
VI. Plea of Guilty.
Obviously nothing in this opinion would prevent a defendant from entering a plea of guilty and getting a finite sentence commensurate with the offense pursuant to RSA ch. 651. RSA 651:10 (Supp. 1975) permits transfers to the New Hampshire Hospital for treatment of insanity. When such an individual has been successfully treated he will, of course, be sent back to the prison to serve the balance of his sentence. The questions of mental illness and need for treatment may be raised at the time of sentencing, though such a plea is not basically а plea of “guilty but mentally ill.” Some States have found such a plea to be useful.
See, e.g.,
Mich. Comp. Laws §§ 768.20-21a, 29a-36 (constitutionality upheld in
People v. McLead, 77
Mich. Ct. App. 327,
Relief requested is granted if the State elects not to seek an indictment within thirty days from the date of this opinion.