§704-402 Physical or mental disease,
disorder, or defect excluding responsibility is an affirmative defense; form of
verdict and judgment when finding of irresponsibility is made. (1)
Physical or mental disease, disorder, or defect excluding responsibility is an
affirmative defense.
(2) When the defense provided for by
subsection (1) is submitted to a jury, the court shall, if requested by the
defendant, instruct the jury as to the consequences to the defendant of an
acquittal on the ground of physical or mental disease, disorder, or defect
excluding responsibility.
(3) When the defendant is acquitted on the
ground of physical or mental disease, disorder, or defect excluding
responsibility, the verdict and the judgment shall so state. [L 1972, c 9, pt
of §1; am L 1973, c 136, §4(a); am L 1980, c 222, §1(1); am L 1982, c 229, §1;
am L 1983, c 124, §14]
COMMENTARY ON §704-402
Subsection (1) provides that the issue of physical or mental
disease, disorder, or defect excluding responsibility is a defense. By the use
of the word "defense" in this section the Code does not intend to
place a burden of proof upon the defendant. The intent of the Code is only to
foreclose the issue of the defendant's lack of responsibility due to a physical
or mental disease, disorder, or defect unless some evidence raises that issue.
In most cases where the issue is raised it will be the defendant's evidence
which raises the issue; however it is not inconceivable that the prosecutor's
evidence may raise the issue. Once evidence is introduced on this issue, the
prosecution is required to prove the responsibility of the defendant beyond a
reasonable doubt. If the prosecuting attorney has introduced evidence on the
issue, the defendant may rely on the failure of the prosecution, once having
raised the issue, to prove responsibility beyond a reasonable doubt.
Subsection (1) conforms to prior Hawaii law.[1]
Subsection (3) merely provides for a special verdict on the
issue of responsibility when evidence of physical or mental disease, disorder,
or defect has raised that issue. A defendant may, and often does, rely on
alternative defenses or theories. Since commitment or conditional release is
authorized for some defendants acquitted because of physical or mental disease,
disorder, or defect excluding responsibility, the necessity of a special
verdict is obvious. This subsection is also in substantial conformity with
prior law.[2]
SUPPLEMENTAL COMMENTARY ON §704-402
Subsection (2) was added by Act 136, Session Laws 1973. It
should be noted that the defendant has the option; the defendant decides
whether the defendant wishes the jury instructed on the consequences to the
defendant of an acquittal on the ground of physical or mental disease,
disorder, or defect excluding responsibility.
Act 229, Session Laws 1982, amended subsection (1) to provide
that the defense of physical or mental disease, disorder, or defect excluding
responsibility is an affirmative defense. Senate Standing Committee Report No.
384 states:
The bill adopts
the position of the United States Supreme Court in Leland v. Oregon that making
the insanity defense an affirmative defense is not unconstitutional and does
not violate the Due Process Clause of the Fourteenth Amendment. The courts
have indicated that insanity is not an element of any offense. Thus, the
establishing of insanity as an affirmative defense does not relieve the State
of its burden of proof of the elements of the offense. The Oregon Supreme
Court in State v. Stockett, 278 Or. 637, 565 P.2d 739, 743 (1977) reiterated
the U.S. Supreme Court: "...the existence or nonexistence of legal
insanity bears no necessary relationship to the existence or nonexistence of
the required mental elements of the crime. For this reason, Oregon's placement
of the burden of proof of insanity on Leland,...did not effect an
unconstitutional shift in the state's traditional burden of proof beyond a
reasonable doubt of all necessary elements of the offense."
Case Notes
Instruction under subsection (2) is informational only and is
not to be used to influence the decision of the jury. 58 H. 623, 574 P.2d 895
(1978).
__________
§704-402 Commentary:
1. See State v. Moeller, 50 Haw. 110, 443 P.2d 136 (1967) ("The
law in this jurisdiction is that the defendant is presumed to have been sane at
the time he committed the offense; however, if any evidence introduced raises
the question of the sanity of a defendant or insanity becomes a defense, then
the State is required to establish the sanity of the defendant beyond a
reasonable doubt."); Territory v. Alcosiba, 36 Haw. 231, 239 (1942) ("In
order to justify the submission of a defense of mental derangement to the jury,
there must therefore be some evidence showing or tending to show mental
derangement..."); and Territory v. Adiarte, 37 Haw. 463, 470 (1947) ("...[C]onsonant
with the presumption of innocence, insanity... may arise solely from the
prosecution's evidence without any evidence being adduced by the defendant.").
2. H.R.S. §711-93.
Notes of Decisions
Cited in
23
cases (
5 in the last 5 years), 1978–2025 · leading case:
State v. Tierney, 277 P.3d 251 (Haw. 2012).
State v. Tierney, 277 P.3d 251 (Haw. 2012).
· cites it 26× “Here, Petitioner could have been acquitted by reason of physical or mental disease, disorder, or defect, see HRS § 704-402 (1993), [24] rather than found guilty, or, *267 conceivably, the charge could have been dismissed if Petitioner remained unfit to proceed.”
State v. Baxley, 73 P.3d 668 (Haw. 2003).
· cites it 16× “In consonance with these propositions, in amending the law to provide that "[p]hysical or mental disease, disorder, or defect excluding responsibility is an affirmative defense," HRS § 704-402(1) (1993), the Supplemental Commentary on HRS § 704-402 instructs that "the…”
State v. Uyesugi, 60 P.3d 843 (Haw. 2002).
· cites it 8× “In 1982, the Hawai`i Legislature amended HRS § 704-402 to provide that the defense of lack of penal responsibility is an affirmative defense.”
State v. Glenn., 468 P.3d 126 (Haw. 2020).
· cites it 9× “The Intermediate Court of Appeals (ICA) affirmed 3 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** Glenn’s conviction, holding that HRS § 704-408 must be read in pari materia with HRS 704-402 and 701-115 and that consequently, “HRS section 704-408 should…”
State v. Amorin, 574 P.2d 895 (Haw. 1978).
· cites it 6× “1 HRS § 704-402(1) and (2) (Special Supp. 1975).”
State v. Yamada, 57 P.3d 467 (Haw. 2002).
· cites it 4× “See HRS § 704-402(3) (1993). If the jury unanimously agreed that Defendant failed to prove insanity, the court should then direct the jury to consider the defense of manslaughter.”
State v. Castro, 5 P.3d 444 (Haw. App. 2000).
· cites it 10× “Additionally, I do not believe that Defendant is foreclosed on remand from relying on the HRS § 704-402 defense.”
State v. Plichta, 172 P.3d 512 (Haw. 2007).
· cites it 4× “704 was principally designed to relieve *217 criminally irresponsible defendants of penal liability, see HRS § 704-402(1) (1993) (“Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense.”
State v. Young, 999 P.2d 230 (Haw. 2000).
· cites it 4× “See HRS § 704-402(1) (1993) (providing that HRS § 704-400 is an affirmative defense); HRS § 701-115(2)(b) (1993) (stating that affirmative defenses must be proved by the defendant by a preponderance of the evidence); see also, e.”
State v. Janto, 986 P.2d 306 (Haw. 1999).
· cites it 2× “" HRS § 704-408 (1993) provides: If the report of the examiners filed pursuant to section 704-404, or the report of examiners of the defendant’s choice under section 704-409, states that the defendant at the time of the conduct alleged suffered from a physical or mental disease,…”
State v. Harter., 340 P.3d 440 (Haw. 2014).
· cites it 2× “The ICA affirmed Harter’s convictions without prejudice to her raising and further developing the issue of her fitness to stand trial in a HRPP Rule 40 petition for post-conviction relief.”
State v. Sujohn, 697 P.2d 1143 (Haw. App. 1985).
· cites it 3× “1 Under HRS § 704-402(1) (1976), physical or mental disease, disorder, or defect excluding responsibility was a defense.”
— Haw. Rev. Stat. § 704-402(1) — 10 cases
State v. Baxley, 73 P.3d 668 (Haw. 2003).
“In consonance with these propositions, in amending the law to provide that "[p]hysical or mental disease, disorder, or defect excluding responsibility is an affirmative defense," HRS § 704-402(1) (1993), the Supplemental Commentary on HRS § 704-402 instructs that "the…”
State v. Plichta, 172 P.3d 512 (Haw. 2007).
“704 was principally designed to relieve *217 criminally irresponsible defendants of penal liability, see HRS § 704-402(1) (1993) (“Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense.”
State v. Tierney, 277 P.3d 251 (Haw. 2012).
“Here, Petitioner could have been acquitted by reason of physical or mental disease, disorder, or defect, see HRS § 704-402 (1993), [24] rather than found guilty, or, *267 conceivably, the charge could have been dismissed if Petitioner remained unfit to proceed.”
State v. Amorin, 574 P.2d 895 (Haw. 1978).
“1 HRS § 704-402(1) and (2) (Special Supp. 1975).”
State v. Young, 999 P.2d 230 (Haw. 2000).
“See HRS § 704-402(1) (1993) (providing that HRS § 704-400 is an affirmative defense); HRS § 701-115(2)(b) (1993) (stating that affirmative defenses must be proved by the defendant by a preponderance of the evidence); see also, e.”
— Haw. Rev. Stat. § 704-402(2) — 2 cases
State v. Amorin, 574 P.2d 895 (Haw. 1978).
“1 HRS § 704-402(1) and (2) (Special Supp. 1975).”
— Haw. Rev. Stat. § 704-402(3) — 2 cases
State v. Yamada, 57 P.3d 467 (Haw. 2002).
“See HRS § 704-402(3) (1993). If the jury unanimously agreed that Defendant failed to prove insanity, the court should then direct the jury to consider the defense of manslaughter.”
State v. Glenn., 468 P.3d 126 (Haw. 2020).
“The Intermediate Court of Appeals (ICA) affirmed 3 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER *** Glenn’s conviction, holding that HRS § 704-408 must be read in pari materia with HRS 704-402 and 701-115 and that consequently, “HRS section 704-408 should…”
— Haw. Rev. Stat. § 704-402(4) — 1 case
State v. Tierney, 277 P.3d 251 (Haw. 2012).
“Here, Petitioner could have been acquitted by reason of physical or mental disease, disorder, or defect, see HRS § 704-402 (1993), [24] rather than found guilty, or, *267 conceivably, the charge could have been dismissed if Petitioner remained unfit to proceed.”
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