The insanity defense in Colorado negates criminal liability if the defendant suffered from a mental condition that prevented him or her from knowing right from wrong, or from being able to formulate the criminal intent necessary for the crime.
Defendants found not guilty by reason of insanity may avoid prison and instead be committed to a mental hospital or evaluated as an outpatient.
The following flowchart summarizes the process for pleading not guilty by reason of insanity.
In this article, our Denver Colorado criminal defense attorneys will answer 7 key questions about the insanity defense:
- 1. Elements
- 2. Example
- 3. Insanity v. Intoxication
- 4. Pleading
- 5. Proving Insanity
- 6. Commitment
- 7. Insanity v. Incompetence
1. Elements
Defendants are considered insane at the time of the offense if they were either:
- so diseased or defective in mind as to be incapable of distinguishing right from wrong; OR
- suffering from a condition of the mind caused by mental disease or defect that prevented them from forming a culpable mental state that is an essential element of a crime charged.1
Under the first prong, the defendant’s mental capacity to distinguish between right and wrong is measured against the societal standard of what is right and wrong. It is not a subjective standard.
The second prong – where the defendant is so disordered that he/she cannot form criminal intent – applies only to cases where the defendant is facing charges for a “specific intent” crime. Specific intent crimes are offenses where the defendant’s mindset is an element of the crime, such as first-degree murder or assault.
In short, people are legally insane when – at no fault of their own – they are so mentally incapacitated that they cannot tell what is wrong or form criminal intent.
Potential examples of conditions or mental disorders that cause insanity include:
- Severe neurological disorders,
- Schizophrenia,
- Bipolar disorder,
- Poisoning with fumes or toxic substances, or
- Any other medical condition that produces serious delusions or a break with reality
Legal insanity is being mentally impaired to the point of being unable to tell right from wrong or have criminal intent.
Insanity is not the same thing as:
- Moral obliquity,
- Mental depravity, or
- Passion growing out of anger, revenge, hatred, or other motives2
Example: A husband comes home to find his wife in bed with another man. Enraged, the husband immediately hits the man on his head with his briefcase, killing him. Even though the husband might have felt mentally ill at the time, he was not legally insane. Instead, he was acting “out of passion.” This state of mind will result in a charge reduction to a lesser offense but not a dismissal like an insanity defense would.
Tests for insanity
Insanity and mental illness often overlap, but they are not the same. A person can be mentally ill without being insane. (Note that Colorado is not a state that allows defendants to plead guilty but mentally ill (GBMI).)
M’Naghten Rule
Colorado’s definition of insanity is adapted from the M’Naghten Rule: Even if the defendant knew the nature and quality of what he/she was doing, he/she is insane if he/she did not know it was wrong. In short, the defendant has total cognitive disability. It is not considered insanity if the defendant knew his behavior was wrong but could not control it (“volitional incapacity”).3
Federal Test
The Federal Test for insanity – codified in a statute in 1984 by Congress – also requires total cognitive incapacity: A defendant is insane if clear and convincing evidence shows his/her mental disease or defect prevented him/her from appreciated his/her conduct’s wrongfulness or nature and quality.4
Irresistible Impulse Test
Colorado’s definition of insanity also draws upon the Irresistible Impulse test. Under this test, a person is insane if he/she had an uncontrollable impulse, was unable to choose his/her behavior, and could not control his/her actions.5
Model Penal Code Test
Other jurisdictions rely on various tests for insanity. For example, the Model Penal Code Test defines insanity as having a mental disease or defect precluding the person from having substantial capacity to recognizes the wrongfulness of the conduct or follow the law. Unlike the M’Naghten Rule, the defendant does not need to totally lack mental capacity to be found insane.6
Product Test
And under the Product Test (also called the Durham Test) – which is no longer followed – criminality was excused if it was the result of the defendant’s mental disease or defect.7
2. Example
Insanity is an affirmative defense to criminal charges in Colorado.3 This means that the defendant admits to having broken the law, but his or her insanity excuses any criminal liability.
Example: Helen suffers from paranoid schizophrenia. While in the supermarket Helen has a delusion that a killer is coming after her with a knife. This causes Helen to flail about, knocking a nearby shopper to the floor. The shopper files a police report, and Helen gets charged with assault.
At trial, Helen’s attorney presents evidence showing that she was in the throes of a schizophrenic delusion. An element of assault is that the defendant had a specific intent to touch the victim. Here, Helen had no intention of touching the shopper; instead, her mental condition caused her to flail about, which then caused her to inadvertently shove the shopper.
Since Helen’s mental illness prevented her from forming criminal intent (called “mens rea”), the jury finds Helen not guilty by reason of insanity.
3. Insanity v. Intoxication
Intoxication and insanity are entirely different defenses in Colorado. But like the defense of insanity, claiming involuntary intoxication (such as being drugged) serves as an effective defense to criminal charges.8
Example: Someone slips some speed into Nancy’s drink at a party. After the speed kicks in, she throws a chair off the balcony. A police officer sees and arrests her for reckless endangerment (CRS 18-3-208).
At trial, Nancy’s attorney introduces video footage showing Nancy being drugged without her consent. The court then acquits Nancy because she did not get high on purpose and was therefore not accountable for what she did. Had Nancy took the drugs on purpose, then she could be convicted.
Intoxication of alcohol or drugs is a separate defense from insanity in Colorado.
4. Pleading
Under Colorado law, defendants are required to enter a plea of “not guilty by reason of insanity” (NGRI) at the arraignment. The arraignment is the formal reading of charges that begins every criminal case. But defendants may still be able to enter an insanity plea later on if they can show the court “good cause” such as newly discovered evidence.
Once a defendant pleads NGRI, the court will order that the defendant undergo a psychiatric examination. Depending on the results of this report, the judge may permit the defendant to proceed with the NGRI plea.
If a defendant refuses to enter an NGRI plea, his/her attorney can tell the court that the attorney believes he/she should. The judge can then order psychiatrists or forensic psychologists to examine the defendant and report back to the court. The judge may then enter an NGRI plea on the defendant’s behalf if the judge finds it is necessary for the “just determination of the charge.”9
5. Proving Insanity
Typical evidence that demonstrates that a defendant was legally insane at the time of the criminal act includes:
- The defendant’s medical records;
- Eyewitness testimony;
- Video surveillance footage;
- Expert medical testimony
Once the judge allows the defendant to plead “not guilty by reason of insanity,” the district attorney has the burden to prove beyond a reasonable doubt that the defendant is in fact sane and therefore guilty of the crimes charged. In this way, Colorado differs from most other states which put the burden on the defendant to show he/she is insane.10
6. Commitment
When defendants receive an acquittal by reason of insanity, the judge may commit them to the custody of the Department of Human Services or have them evaluated as an outpatient.
Acquittees who get committed go to a mental hospital such as the Colorado Mental Health Institute at Pueblo. They remain there until if and when their condition resolves. This could be for longer than what the prison sentence would have been. Some people remain confined for life.11
7. Insanity v. Incompetence
Competency to stand trial in Colorado concerns whether defendants have adequate mental faculties to assist their defense attorney and receive a fair trial. Competency has nothing to do with whether the defendant was mentally sound at the time of the alleged crimes.12
Additional Resources
For more in-depth information on the insanity defense, refer to the following scholarly articles:
- Mentally disordered offenders and the law: Research update on the insanity defense, 2004–2019 – International Journal of Law and Psychiatry.
- “The Angels That Surrounded My Cradle”: The History, Evolution, and Application of the Insanity Defense – Buffalo Law Review.
- Not Guilty, Yet Continuously Confined: Reforming the Insanity Defense – American Criminal Law Review.
- Kahler v. Kansas: The End of the Insanity Defense? – Duke Journal of Constitutional Law and Public Policy.
- Sentencing Alternative to an Insanity Defense – Seattle Journal of Social Justice.
Legal References
- Colorado Revised Statutes 16-8-101.5. HB22-1061.
- Same. (Idaho, Kansas, Montana, and Utah do not have the insanity defense at all. But defendants can introduce evidence of mental defects to rebut allegations that they had a criminal mental state.)
- M’Naghten’s Case (1843) 10 C & F 200.
- 18 U.S.C. § 17(a) (2000).
- See also People v. Low, (1987) 732 P.2d 622.
- Also see People v. Serravo, (1992) 823 P.2d 128.
- See also Durham v. United States, (D.C. Cir., 1954) 214 F.2d 862.
- Also see People v. Vanrees, (Colorado Supreme Court, 2005) 125 P.3d 403.
- CRS 18-1-804; See also People v. Garcia, (Colo. 2005) 113 P.3d. See, e.g., People v. Rosas (2020) 2020 CO 22, 459 P.3d 540. See, for example, People v. Moore (2021) 2021 CO 26.
- Also see CRS 16-8-105.5. Also see People v. Rosas, (2020) CO 22, 459 P.3d 540.
- See also note 8; also see CRS 16-8-105.5; see also CRS 16-8-116; Also see Foucha v. Louisiana, (1992) 504 U.S. 71; see also Jones v. United States, (1983) 463 U.S. 354, 370. Note that Colorado is not one of the states that require involuntary commitment for sexual predators.
- Also see CRS 16-8.5-101.