*1 27,1979.] September En 45751. Banc. [No. Christopher Respondent, Washington, The State Jay Wilcox, Appellant. Seattle-King County Public
Mark Leemon of Defender Association, for appellant.
gH T. Christopher Bayley, Prosecuting and Elsa Attorney, Showalter, R. Durham Marilyn Deputies, respon- dent. with first- charged J. Defendant was
Brachtenbach, *2 and to second-degree arson. He was committed Western (1) Hospital competency State to to observation as his (2) stand trial and legal sanity his the time charged offenses. When to before the the matter came trial court, both stipulated competent sides that defendant was to stand trial criminally and that he was insane when the of acts arson were committed. statute a criminally procedures requires insane defendant,
determination of the if acquitted whether (1) of insanity, because is a substantial to danger other (2) persons, presents whether he a likelihood substantial of committing felonious jeopardizing public safety acts or (3) security and in whether is the best interests defendant and others he in placed be treatment less restrictive than in detention mental hospital. state RCW (4) 10.77.040(3), court, If the issues tried the are to findings must make form substantially the same as set forth 10.77.080; above. RCW 10.77.110. hearing issues,
After court testimony on these the com- to mitted defendant Hospital Western State for treatment criminally as a until further order of the court. affirm. We
Defendant's argument is that the not specify statute does who the has burden on the elements set forth in RCW 10.77.040 specify and does not what of proof standard must met order to commit him under statute. This liberty he contends deprivation without due process. We disagree. whole, as
Taken RCW 10.77 is with replete process due definitions; concepts. RCW 10.77.010 provides applicable 10.77.020 delineates rights including right defendant's to indigent's right counsel to have publicly paid can- professional examination his behalf. Commitment underlying for the period not exceed the sentence 10.77.020(3). against RCW His self- right criminal act. 10.77.020(4). 10.77- preserved. incrimination is RCW RCW .030(2) prove advises the it is his burden to only by preponderance but defense evidence. denial of due
Turning specifics, there a assign failure of the statute to why are two reasons such is not a the State? There First, case, the State fact process. denial of due It for persuasion. burden went assumed the ward, right of cross- the court afforded defendant testimony. right present examination and the rebuttal nothing said that had the burden Had statute happened. different would have
Second, it is any statutory from apart requirement, quite deprivation of our that a precept system a fundamental liberty affording process. occur due can after *3 criminally deprivation of a is a commitment liberty of due subject guaranty to this constitutional In re analogous have so held situations. process. We (civil (1973) Levias, 255, 253, P.2d 588 com 83 Wn.2d 517 224, Quesnell, In re 229- mitment proceeding); (1973) (civil 30, proceeding); (1976) Morris, 922, 929, P.2d Johnson v. Wn.2d 557 1299 87 United States (juvenile proceeding). In been this matter. specific Court has Supreme 396, Donaldson, L. Ed. O'Connor v. 422 U.S. 2d it was concurring opinion Ct. in a said: involuntary commitment There can be no doubt that involuntary of an like confinement hospital, to a mental reason, liberty deprivation any for individual due without accomplish which the State cannot (1967). Patterson, Cf. law. Specht (1967). must Gault, 12-13, Commitment 387 U.S. interest, of a legitimate on the basis state justified be the be established must committing individual particular reasons proceeding. appropriate
g^3 it Thus the had the burden which satisfied State & generally Punishing this case. See Singer, German Not Guilty: Hospitalization Persons Acquitted Rea- (1976); son Insanity, 29 L. Rev. 1011 Rutgers 87 Harv. Rev. 1190
The second issue is whether there is a of due pro- denial explicitly cess the statute does not because set standard must argues which meet. Defendant beyond standard must be that of doubt reasonable or at clear, cogent least and convincing evidence and contends that the trial court lesser applied a standard.
While statute does not establish a standard of proof, guidelines is not without which guidelines must be met — which inure the benefit of the defendant. The trier of the fact find must that presents a substantial danger persons to other presents or he a substantial Further, likelihood of committing other felonious acts. not just any likely, felonious acts must but those which jeopardize safety security. public RCW 10.77.040(3), (4); 10.77.110.
In establishing the of proof standard we required, must recognize two factors. dealing imprecise We are with a most area of human behavior and we are attempting predict Stone, future conduct of a particular See A. individual. Mental Health and A System Law: in Transition 25-37 (1975); Steadman, & Cocozza Psychiatric Failure of Dangerousness: Predictions Clear and Convincing Evi- dence, Rutgers L. Rev. 1098-99 Dersho- witz, The Law Dangerousness: Some Fictions About Predictions, 23 J. Legal Educ.
Acknowledging that the so-called standards of are best, illusory artificial and it is unreal insist statutory beyond elements be doubt or proved a reasonable *4 clear, by and State v. Blu- cogent convincing evidence. See (1971); Wiehl, Our baugh, 80 Wn.2d Burdens, Burden Rev. Wash. that of the evidence by preponderance
We hold statutory accords due to the elements Krol, A.2d State v. N.J. defendant. See trier that the State must convince the This means that probably of the is more true than fact to com likely to other or is dangerous persons defendant safety. Those criteria public mit felonious acts jeopardizing and is affirmed. judgment were met this case C.J., Horowitz, Stafford, Wright, and Utter, and JJ., concur. Dolliver, dissenting (concurring part J.
Williams, by majority concur with the result reached part) —I of the applicable its determination of the standard 1 dissent, however, I from the of RCW 10.77.040.* elements those elements is on the holding proving unlawful act and the proved Where the State has State. that he was stipulates or to the fact proves defendant either act, I the burden should time of the believe prove by preponderance rest on the defendant he should the elements which determine whether evidence or free. be committed set states: 1RCW 10.77.040 jury, is submitted to the the court shall "Whenever the issue substantially following special jury form:
instruct the to return a verdict answer
yes or no charged? - 1. commit the act Did the defendant yes, you acquit your him 1 is do 2. If answer to number charged? insanity existing - at the time of the act because yes, your 2 is is the defendant a substantial 3. If answer number kept danger persons under further control to other unless - persons or or institutions? the court other present yes, your to number 2 is does the defendant 4. If answer committing jeopardizing felonious acts substantial likelihood security safety kept public further unless under - persons or institutions? control the court or other yes, your or number 4 is If answers to either number 3 5. defendant and others that in the best interests placed less restrictive than detention in treatment that is - hospital?" in a state mental
015
states,
612,
correctly
The majority
page
"[t]he
commitment
criminally
deprivation
of a
is a
liberty
subject
of
to this constitutional
of due
guaranty
From this
process."
proposition,
concludes that "[t]hus
proof
had the burden of
which it satisfied
this
State
I do
logically
case.”
not see how the former proposition
It
process
leads
the latter.
is not
violation of the due
place
clause to
of
who
burden
on
defendant
pleads
Oregon,
not
of
Leland v.
guilty
insanity.
reason
790,
1302,
L.
(1952);
343 U.S.
Ed.
72
Ct.
see
96
S.
1002
Piche,
583,
(1967),
v.
71
Wn.2d
P.2d
cert.
430
522
denied,
(1968).
912,
882,
390
19 L. Ed. 2d
U.S.
Ct. 838
197,
New York,
281,
See Patterson v.
432
L.
2d
53
Ed.
bear the
by citing
burden
this situation
cases
involving civil
A
commitment.
number
courts have held
equal protection
requires
insanity acquittee
that an
substantially
receive
protection
the same
to a civil
afforded
committee, except
good
where there are
for
reasons
differ-
Alto,
(Alaska
ent treatment. State v.
1979);
Harris,
(D.C.
v.
1968);
Bolton
The of the stance taken defendant the recognized by to his own mental condition was regard Overholser, in Lynch Supreme United States Court (1962), 2d Ct. where the Ed. insanity the automatic court reviewed Lynch, In District of Columbia statute. under a acquittees irresponsibility had made no claim mental the defendant Nonetheless, the no evidence to that effect. and he adduced guilty that was not concluded defendant judge trial was committed insanity. Accordingly, defendant reason the automatic provided for pursuant a statute solely on the person who is any acquitted commitment of the commission that was insane at the time of ground he (d)(1). The States D.C. Code 24—301 United the offense. § ordering in trial court's action Court reversed the Supreme on the ruling court its defendant committed. The based who to a defendant that this section ground applies insanity, and not to affirmatively relies a defense was that he in case who had maintained that mentally when the offense was commit- responsible alleged ted. court recognized importance thus of consider- ing the existence of an plea determining post-acquittal rights defendant's commitment. regarding Another reason for allocating the burden of on the issue of differently civil and criminal cases from finding stems that com- acquittee has mitted a criminal act. He therefore differs from the civil committee who is potential committed because of his commit dangerous necessarily acts and not because he has Alto, State v. supra committed them. at 406. This court Cranor, in In noted re Kenstrip P.2d 467 that doing of criminal acts makes an insane
[t]he criminally insane. safety society requires distinguish law the insane from the criminally insane disposition its of them.
This distinction justifies allocating differently these two classes the standard of which is fixed for the adjudication any particular question reflects judgment as to acceptability of a mistaken deter- mination:
For example, placing the burden of proof on the state beyond a reasonable doubt in criminal cases reflects our *7 belief it is worse an jailed innocent man be tha[t] guilty than that a man go free. The differences between a civil proceeding commitment and a post-acquittal hear- ing, can be they as relate to the burden and standard of proof,
readily commitment, illustrated. In civil a if a mistake is made and a sane man is determined to be insane, the result will be the involuntary commitment of person a act. heavy same mistake is made of sound mind who has committed no criminal result, justifies
This is an intolerable which a placing party on the If seeking burden commitment. the a it post-acquittal proceeding, will mean that one who has committed a criminal act and it, escaped responsibility who has criminal perhaps mistake, duplication because of an earlier will of the same mis- consequences be institutionalized. the take this case seem much less condemnable than the 618 civil a error. proceeding justify margin different Brown,
See States v. 402, 405, United U.S.App.D.C. 155 606, 478 F.2d 609 Alto, supra
(Footnote omitted.) In at 406-07. See re Winship, 397 U.S. L. 25 Ed. 2d 90 S. Ct. (1970) (Harlan, J., concurring). 1068 commonly rarely It is known that true mental illness dis- appears One overnight. author comments: seem, however,
It a would almost matter common for the knowledge insanity part long-last- is most a ing phenomenon. discipline Although psychology nearly of relatively recent and has not achieved origin sciences, degree by of certitude other we attained have long lunacy discarded notion that is the since mani- by evil festation of a sudden visitation demons. U.
116 Pa. Rev. 935. state, 3.3, rule of CrR speedy Under trial will be to trial within a reasonable time brought alleged after commission of the offense at time In dangerousness his or future her determined. another jurisdiction years" may where between the pass "sometimes charged may hearing, offense well acquittal by insanity says precious be "that reason little presently suffers question whether a from Brown, United States mental 478 F.2d 613 illness." (D.C. 1973) state, J., In (Wright, dissenting). Cir. how- ever, question is heard on the acquittee where within the charged a reasonable time after offense, may be presumption continuing insanity con- sidered valid. I that the
Accordingly, presume believe is reasonable pleaded guilty of a defendant who has rea- insanity, preponderance son established evi- Brown, In re dence, continued to the time trial. has Franklin, supra; Mills v. P. Wash. State, Allan, (Del. 1969); State v. 166 N.W.2d A.2d 752 Bonner, (Iowa 1969). See State v. *8 Cranor, In re Kenstrip supra;
P.2d 462 Burnett, (1948). terms,
In practical may be added that to pursuant majority opinion juries will now be to charged regard separate three burdens of proof pleads where a defendant They will insanity. now be told that the State has the bur- den of proving the elements of beyond the offense a rea- doubt; sonable the defendant has the burden proving his at the time of the offense a prepon- evidence; derance of the and that the State has the burden of proving he is not large by safe be at a preponderance of the evidence. Consequently, juries will now required precise draw distinctions based on psychiatric evidence which by its nature imprecise. is As stated the United Supreme States Court:
Psychiatric contrast, diagnosis, is to a large extent based on medical "impressions" drawn from subjective analysis and filtered through experience diag- nostician. This process very often makes it difficult for the expert physician to offer definite conclusions about any particular patient.
Addington Texas, 60 L. Ed. 2d (1979). Ct. 1804 One author has observed that "[e]ven psychiatrist would certify hesitate to to recovery so soon after the insane act. A jury quite incompetent to make this determination on the basis of evidence introduced at Weihofen, the criminal Institutional Treatment of trial." Persons Acquitted by Reason Insanity, L. 38 Tex. Rev. no Another writer suggests there is psychological or physical sign symptom which can be reliably used to discriminate potentially between the dan- gerous and individual, harmless and that experts on human behavior should not upon be called to predict future dan- See The Psychiatric Prediction of gerousness. Diamond, Dangerousness, U. Pa. Rev. 439
In requiring jury to determine a defendant's at the time the act as well as his dangerousness at the trial, time we ask the jury make a distinction which at pure speculation. is based on difficult and at worst best *9 suggests, the court now burdens of as By dividing task. already enough a difficult confusion to what is we add reasons, I a defendant who has For these believe that the time he himself to be insane at proved and pleaded the burden of bear committed the criminal act should at the time trial. large is safe to be at proving that he entitled to insanity acquittee is say that an This is not to civil com- than a safeguards substantially procedural fewer not neces- rather, the State need mittee; it means procedures identical acquittees sarily afford cases.2 in civil commitment those afforded defendants in part. and dissent part I concur therefore J. Williams, Hicks, JJ., concur with Rosellini 3, 1979. denied December Reconsideration September En 1979.] Banc. 46185. [No. Respondent, Washington, James The State of Petitioner. McIntyre, William Insanity Comment, Following Acquittal Reason Commitment 2See Laws, whose author Equal U. Pa. L. Rev. 924 Protection offering procedures advocates, firmly page at "[c]riminal procedures corresponding considerably safeguards civil commitment than fewer strong Despite protection adversarial stance equal his of the laws.” not afford do strong concedes, issue, page state interest that "[a] the author on this presumption validity of the deterring pleas affirmation or a considered false proof on conceivably justify placing insanity might continuing seeking commitment." to avoid