The Vermont Statutes Online

Title 13: Crimes and Criminal Procedure

Chapter 157: Insanity as a Defense

• § 4801. Test of insanity in criminal cases

  (a) The test when used as a defense in criminal cases shall be as follows:

  (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect the person lacks adequate capacity either to appreciate the criminality of the person’s conduct or to conform the person’s conduct to the requirements of law.

  (2) The terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. The terms “mental disease or defect” includes congenital and traumatic mental conditions as well as disease.

  (b) The defendant shall have the burden of proof in establishing insanity as an affirmative defense by a preponderance of the evidence. The defendant shall be responsible for hiring the defendant’s own forensic evaluator for the purpose of establishing insanity, provided that the Office of the Defender General shall pay for the evaluation of an indigent defendant. (Amended 1983, No. 75; 2023, No. 28, § 1, eff. July 1, 2023.)

• § 4802. M’Naghten test abolished

  The M’Naghten test of insanity in criminal cases is hereby abolished.

• §§ 4803-4813. Repealed. 1969, No. 20, § 14.

• § 4814. Order for examination of competency

  (a) Any court before which a criminal prosecution is pending may order the Department of Mental Health to have the defendant examined by a psychiatrist at any time before, during, or after trial, and before final judgment in any of the following cases:

  (1) [Repealed.]

  (2) when the defendant, the State, or an attorney, guardian, or other person acting on behalf of the defendant raises before such court the issue of whether the defendant is mentally competent to stand trial for the alleged offense; or

  (3) [Repealed.]

  (4) when the court believes that there is doubt as to the defendant’s mental competency to be tried for the alleged offense.

  (b) The order may be issued by the court on its own motion or on motion of the State, the defendant, or an attorney, guardian, or other person acting on behalf of the defendant.

  (c) An order issued pursuant to this section or Rule 16.1 of the Vermont Rules of Criminal Procedure shall order the release of all relevant records to the examiner, including all juvenile and adult court, mental health, and other health records.

  (d) Notwithstanding any other provision of law, an examination ordered pursuant to subsection (a) of this section may be conducted by a doctoral-level psychologist trained in forensic psychology and licensed under 26 V.S.A. chapter 55. This subsection shall be repealed on July 1, 2024.

  (e) After an initial competency determination, a court may order subsequent evaluations of a defendant to be performed by the Department of Mental Health only upon a showing of changed circumstances. In determining whether to order subsequent evaluations, the court shall consider a treating physician’s clinical evidence, if any, indicating that the defendant’s competency may have changed. This section shall not limit the parties’ abilities to secure their own evaluations voluntarily or under Vermont Rule of Criminal Procedure 16.1.

  (f) The court may issue a warrant for the arrest of a defendant who, after receiving notice of an evaluation ordered under this section, fails to appear for the evaluation. (Added 1969, No. 20, § 1; amended 1973, No. 118, § 16, eff. Oct. 1, 1973; 1991, No. 231 (Adj. Sess.), § 6; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 19; 2007, No. 15, § 22; 2023, No. 28, § 2, eff. July 1, 2023.)

• § 4815. Place of examination; temporary commitment

  (a) It is the purpose of this section to provide a mechanism by which a defendant is examined in the least restrictive environment deemed sufficient to complete the examination and prevent unnecessary pre-trial detention and substantial threat of physical violence to any person, including a defendant.

  (b) The order for examination may provide for an examination at any jail or correctional center, or at the State Hospital, or at its successor in interest, or at such other place as the court shall determine, after hearing a recommendation by the Commissioner of Mental Health.

  (c) A motion for examination shall be made as soon as practicable after a party or the court has good faith reason to believe that there are grounds for an examination. A motion for an examination shall detail the facts indicating incompetency on which the motion is based and shall certify that the motion is made after the moving party has met with or personally observed the defendant. An attorney making such a motion shall be subject to the potential sanctions of Rule 11 of the Vermont Rules of Civil Procedure.

  (d) Upon the making of a motion for examination, if the court finds sufficient facts to order an examination, the court shall order a mental health screening to be completed by a designated mental health professional while the defendant is still at the court.

  (e) If the screening cannot be commenced and completed at the courthouse within two hours from the time of the defendant’s appearance before the court, the court may forgo consideration of the screener’s recommendations.

  (f) The court and parties shall review the recommendation of the designated mental health professional and consider the facts and circumstances surrounding the charge and observations of the defendant in court. If the court finds sufficient facts to order an examination, it may be ordered to be completed in the least restrictive environment deemed sufficient to complete the examination, consistent with subsection (a) of this section.

  (g)(1) Inpatient examination at the Vermont State Hospital, or its successor in interest, or a designated hospital. The court shall not order an inpatient examination unless the designated mental health professional determines that the defendant is a person in need of treatment as defined in 18 V.S.A. § 7101(17).

  (2) Before ordering the inpatient examination, the court shall determine what terms, if any, shall govern the defendant’s release from custody under sections 7553-7554 of this title.

  (3) An order for inpatient examination shall provide for placement of the defendant in the custody and care of the Commissioner of Mental Health.

  (A) If a Vermont State Hospital psychiatrist, or a psychiatrist of its successor in interest, or a designated hospital psychiatrist determines that the defendant is not in need of inpatient hospitalization prior to admission, the Commissioner shall release the defendant pursuant to the terms governing the defendant’s release from the Commissioner’s custody as ordered by the court. The Commissioner of Mental Health shall ensure that all individuals who are determined not to be in need of inpatient hospitalization receive appropriate referrals for outpatient mental health services.

  (B) If a Vermont State Hospital psychiatrist, or a psychiatrist of its successor in interest, or designated hospital psychiatrist determines that the defendant is in need of inpatient hospitalization:

  (i) The Commissioner shall obtain an appropriate inpatient placement for the defendant at the Vermont State Hospital psychiatrist, or a psychiatrist of its successor in interest, or a designated hospital and, based on the defendant’s clinical needs, may transfer the defendant between hospitals at any time while the order is in effect. A transfer to a designated hospital outside the no refusal system is subject to acceptance of the patient for admission by that hospital.

  (ii) The defendant shall be returned to court for further appearance on the following business day if the defendant is no longer in need of inpatient hospitalization, unless the terms established by the court pursuant to subdivision (2) of this section permit the defendant to be released from custody.

  (C) The defendant shall be returned to court for further appearance within two business days after the Commissioner notifies the court that the examination has been completed, unless the terms established by the court pursuant to subdivision (2) of this section permit the defendant to be released from custody.

  (4) If the defendant is to be released pursuant to subdivision (3)(A), (3)(B)(ii), or (3)(C) of this subsection and is not in the custody of the Commissioner of Corrections, the defendant shall be returned to the defendant’s residence or such other appropriate place within the State of Vermont by the Department of Mental Health at the expense of the court.

  (5) If it appears that an inpatient examination cannot reasonably be completed within 30 days, the court issuing the original order, on request of the Commissioner and upon good cause shown may order placement at the hospital extended for additional periods of 15 days in order to complete the examination, and the defendant on the expiration of the period provided for in such order shall be returned in accordance with this subsection.

  (6) For the purposes of this subsection, “in need of inpatient hospitalization” means an individual has been determined under clinical standards of care to require inpatient treatment.

  (h) Defendants charged with misdemeanor offenses who are not in the custody of the Commissioner of Corrections shall be examined on an outpatient basis for mental competency unless the court makes findings on the record that there is good cause for an inpatient evaluation. Examinations occurring in the community shall be conducted at a location within 60 miles of the defendant’s residence or at another location agreed to by the defendant.

  (i) As used in this section:

  (1) “No refusal system” means a system of hospitals and intensive residential recovery facilities under contract with the Department of Mental Health that provides high intensity services, in which the facilities shall admit any individual for care if the individual meets the eligibility criteria established by the Commissioner in contract.

  (2) “Successor in interest” shall mean the mental health hospital owned and operated by the State that provides acute inpatient care and replaces the Vermont State Hospital. (Added 1969, No. 20, § 2; amended 1987, No. 248 (Adj. Sess.), § 2; 1989, No. 187 (Adj. Sess.), § 5; 1991, No. 231 (Adj. Sess.), § 7; 1995, No. 134 (Adj. Sess.), § 1; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 71, §§ 113a, 113b; 2005, No. 174 (Adj. Sess.), § 20; 2005, No. 215 (Adj. Sess.), § 124; 2007, No. 15, § 22; 2009, No. 119 (Adj. Sess.), § 12; 2011, No. 79 (Adj. Sess.), § 15, eff. April 12, 2012; 2023, No. 28, § 3, eff. July 1, 2023.)

• § 4816. Scope of examination; report; evidence

  (a) Examinations provided for in section 4815 of this title shall have reference to the mental competency of the person examined to stand trial for the alleged offense.

  (b) A competency evaluation for an individual thought to have a developmental disability shall include a current evaluation by a psychologist skilled in assessing individuals with developmental disabilities.

  (c) As soon as practicable after the examination has been completed, the examining psychiatrist or, if applicable under subsection (b) of this section, the psychologist shall prepare a report containing findings in regard to the applicable provisions of subsection (a) of this section. The report shall be transmitted to the court issuing the order for examination, and copies of the report sent to the State’s Attorney, to the respondent, to the respondent’s attorney if the respondent is represented by counsel, to the Commissioner of Mental Health, and, if applicable, to the Department of Disabilities, Aging, and Independent Living.

  (d) No statement made in the course of the examination by the person examined, whether or not the person has consented to the examination, shall be admitted as evidence in any criminal proceeding for the purpose of proving the commission of a criminal offense or for the purpose of impeaching testimony of the person examined.

  (e) The relevant portion of a psychiatrist’s report shall be admitted into evidence as an exhibit on the issue of the person’s mental competency to stand trial and the opinion shall be conclusive on the issue if agreed to by the parties and if found by the court to be relevant and probative on the issue.

  (f) Introduction of a report under subsection (d) of this section shall not preclude either party or the court from calling the psychiatrist who wrote the report as a witness or from calling witnesses or introducing other relevant evidence. Any witness called by either party on the issue of the defendant’s competency shall be at the State’s expense, or, if called by the court, at the court’s expense. (Added 1969, No. 20, § 3; amended 1995, No. 134 (Adj. Sess.), § 2; 2009, No. 146 (Adj. Sess.), § C25a; 2009, No. 156 (Adj. Sess.), § F.6; 2021, No. 57, § 1; 2023, No. 28, § 4, eff. July 1, 2023.)

• § 4817. Competency to stand trial; determination

  (a) A defendant shall be presumed to be competent and shall have the burden of proving incompetency by a preponderance of the evidence.

  (b) A person shall not be tried for a criminal offense if the person is found incompetent to stand trial by a preponderance of the evidence.

  (c) If a person indicted, complained, or informed against for an alleged criminal offense, an attorney or guardian acting in the person’s behalf, or the State, at any time before final judgment, raises before the court before which such person is tried or is to be tried, the issue of whether such person is incompetent to stand trial, or if the court has reason to believe that such person may not be competent to stand trial, a hearing shall be held before such court at which evidence shall be received and a finding made regarding the person’s competency to stand trial. However, in cases where the court has reason to believe that such person may be incompetent to stand trial due to a mental disease or mental defect, such hearing shall not be held until an examination has been made and a report submitted by an examining psychiatrist in accordance with sections 4814–4816 of this title.

  (d) A person who has been found incompetent to stand trial for an alleged offense may be tried for that offense if, upon subsequent hearing, such person is found by the court having jurisdiction of the person’s trial for the offense to have become competent to stand trial. (Added 1969, No. 20, § 4; amended 2023, No. 28, § 5, eff. July 1, 2023.)

• § 4818. Failure to indict by reason of insanity

  When a grand jury before which an indictment is heard returns the indictment as not found by reason of insanity of the person so charged at the time of the alleged offense, the grand jury shall so certify to the court. (Added 1969, No. 20, § 5.)

• § 4819. Acquittal by reason of insanity

  When a person tried on information, complaint, or indictment is acquitted by a jury by reason of insanity at the time of the alleged offense, the jury shall state in its verdict of not guilty that the same is given for such cause. (Added 1969, No. 20, § 6.)

• § 4820. Hearing regarding commitment

  (a) When a person charged on information, complaint, or indictment with a criminal offense:

  (1) [Repealed.]

  (2) is found upon hearing pursuant to section 4817 of this title to be incompetent to stand trial due to a mental disease or mental defect;

  (3) is not indicted upon hearing by grand jury by reason of insanity at the time of the alleged offense, duly certified to the court; or

  (4) upon trial by court or jury is acquitted by reason of insanity at the time of the alleged offense; the court before which such person is tried or is to be tried for such offense, shall hold a hearing for the purpose of determining whether such person should be committed to the custody of the Commissioner of Mental Health. Such person may be confined in jail or some other suitable place by order of the court pending hearing for a period not exceeding 21 days.

  (b) When a person is found to be incompetent to stand trial, has not been indicted by reason of insanity for the alleged offense, or has been acquitted by reason of insanity at the time of the alleged offense, the person shall be entitled to have counsel appointed from Vermont Legal Aid to represent the person. The Department of Mental Health and, if applicable, the Department of Disabilities, Aging, and Independent Living shall be entitled to appear and call witnesses at the proceeding.

  (c) Notwithstanding any other provision of law, a commitment order issued pursuant to this chapter shall not modify or vacate orders concerning conditions of release or bail issued pursuant to chapter 229 of this title, and the commitment order shall remain in place unless expressly modified, provided that inpatient treatment shall be permitted if a person who is held without bail is found to be in need of inpatient treatment under this chapter. (Added 1969, No. 20, § 7; amended 1987, No. 248 (Adj. Sess.), § 3; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 21; 2007, No. 15, § 22; 2021, No. 57, § 2; 2023, No. 28, § 6, eff. July 1, 2023.)

• § 4821. Notice of hearing; procedures

  The person who is the subject of the proceedings, his or her attorney, the legal guardian, if any, the Commissioner of Mental Health or the Commissioner of Disabilities, Aging, and Independent Living, and the State’s Attorney or other prosecuting officer representing the State in the case shall be given notice of the time and place of a hearing under 4820 of this title. Procedures for hearings for persons with a mental illness shall be as provided in 18 V.S.A. chapter 181. Procedures for hearings for persons with an intellectual disability shall be as provided in 18 V.S.A. chapter 206, subchapter 3. (Added 1969, No. 20, § 8; amended 1987, No. 248 (Adj. Sess.), § 4; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 22; 2007, No. 15, § 22; 2013, No. 96 (Adj. Sess.), § 58.)

• § 4822. Findings and order; persons with a mental illness

  (a) If the court finds that the person is a person in need of treatment or a patient in need of further treatment as defined in 18 V.S.A. § 7101, the court shall issue an order of commitment directed to the Commissioner of Mental Health that shall admit the person to the care and custody of the Department of Mental Health for an indeterminate period. In any case involving personal injury or threat of personal injury, the committing court may issue an order requiring a court hearing before a person committed under this section may be discharged from custody.

  (b) An order of commitment issued pursuant to this section shall have the same force and effect as an order issued under 18 V.S.A. §§ 7611-7622, and a person committed under this order shall have the same status and the same rights, including the right to receive care and treatment, to be examined and discharged, and to apply for and obtain judicial review of his or her case, as a person ordered committed under 18 V.S.A. §§ 7611-7622.

  (c)(1) Notwithstanding the provisions of subsection (b) of this section, at least 10 days prior to the proposed discharge of any person committed under this section, the Commissioner of Mental Health shall give notice of the discharge to the committing court and State’s Attorney of the county where the prosecution originated. In all cases requiring a hearing prior to discharge of a person found incompetent to stand trial under section 4817 of this title, the hearing shall be conducted by the committing court issuing the order under that section. In all other cases, when the committing court orders a hearing under subsection (a) of this section or when, in the discretion of the Commissioner of Mental Health, a hearing should be held prior to the discharge, the hearing shall be held in the Family Division of the Superior Court to determine if the committed person is no longer a person in need of treatment or a patient in need of further treatment as set forth in subsection (a) of this section. Notice of the hearing shall be given to the Commissioner, the State’s Attorney of the county where the prosecution originated, the committed person, and the person’s attorney. Prior to the hearing, the State’s Attorney may enter an appearance in the proceedings and may request examination of the patient by an independent psychiatrist, who may testify at the hearing.

  (2)(A) This subdivision (2) shall apply when a person is committed to the care and custody of the Commissioner of Mental Health under this section after having been found:

  (i) not guilty by reason of insanity; or

  (ii) incompetent to stand trial, provided that the person’s criminal case has not been dismissed.

  (B)(i) When a person has been committed under this section, the Commissioner shall provide notice to the State’s Attorney of the county where the prosecution originated or to the Office of the Attorney General if that office prosecuted the case:

  (I) at least 10 days prior to discharging the person from:

  (aa) the care and custody of the Commissioner; or

  (bb) a hospital or a secure residential recovery facility to the community on an order of nonhospitalization pursuant to 18 V.S.A. § 7618;

  (II) at least 10 days prior to the expiration of a commitment order issued under this section if the Commissioner does not seek continued treatment; or

  (III) any time that the person elopes from the custody of the Commissioner.

  (ii) When the State’s Attorney or Attorney General receives notice under subdivision (i) of this subdivision (B), the Office shall provide notice of the action to any victim of the offense for which the person has been charged who has not opted out of receiving notice.

  (iii) As used in this subdivision (B), “victim” has the same meaning as in section 5301 of this title.

  (d) The court may continue the hearing provided in subsection (c) of this section for a period of 15 additional days upon a showing of good cause.

  (e) If the court determines that commitment shall no longer be necessary, it shall issue an order discharging the patient from the custody of the Department of Mental Health.

  (f) The court shall issue its findings and order not later than 15 days from the date of hearing. (Added 1969, No. 20, § 9; amended 1977, No. 95, § 1, eff. May 5, 1977; 1977, No. 252 (Adj. Sess.), § 38; 1987, No. 248 (Adj. Sess.), § 5; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2009, No. 154, § 238; 2011, No. 79 (Adj. Sess.), § 15a, eff. April 2, 2012; 2013, No. 96 (Adj. Sess.), § 58; 2013, No. 131 (Adj. Sess.), § 107; 2021, No. 57, § 3.)

• § 4823. Findings and order; persons with an intellectual disability

  (a) If the court finds that such person is a person in need of custody, care, and habilitation as defined in 18 V.S.A. § 8839, the court shall issue an order of commitment directed to the Commissioner of Disabilities, Aging, and Independent Living for care and habilitation of such person for an indefinite or limited period in a designated program.

  (b) Such order of commitment shall have the same force and effect as an order issued under 18 V.S.A. § 8843 and persons committed under such an order shall have the same status, and the same rights, including the right to receive care and habilitation, to be examined and discharged, and to apply for and obtain judicial review of their cases, as persons ordered committed under 18 V.S.A. § 8843.

  (c) Section 4822 of this title shall apply to persons proposed for discharge under this section; however, judicial proceedings shall be conducted in the Criminal Division of the Superior Court in which the person then resides, unless the person resides out of State in which case the proceedings shall be conducted in the original committing court. (Added 1987, No. 248 (Adj. Sess.), § 6; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 23; 2009, No. 154, § 238; 2013, No. 96 (Adj. Sess.), § 58.)

• § 4824. Reporting; National Instant Criminal Background Check System

  (a) If the court finds that a person is a person in need of treatment pursuant to section 4822 of this title, the Court Administrator shall within 48 hours report the name of the person subject to the order to the National Instant Criminal Background Check System, established by Section 103 of the Brady Handgun Violence Prevention Act of 1993. The report shall include only information sufficient to identify the person, the reason for the report, and a statement that the report is made in accordance with 18 U.S.C. § 922(g)(4).

  (b) A report required by this section shall be submitted notwithstanding 18 V.S.A. § 7103 or any other provision of law.

  (c) A report required by this section is confidential and exempt from public inspection and copying under the Public Records Act except as provided in subsection (d) of this section. The report shall not be used for any purpose other than for submission to the National Instant Criminal Background Check System pursuant to this section, where it may be used for any purpose permitted by federal law, including in connection with the issuance of a firearm-related permit or license.

  (d) A copy of the report required by this section shall be provided to the person who is the subject of the report. The report shall include written notice to the person who is the subject of the report that the person is not permitted to possess a firearm. (Added 2015, No. 14, § 4, eff. Oct. 1, 2015.)

• § 4825. Persons prohibited by federal law from possessing firearms due to mental illness; petition for relief from disability

  (a)(1) A person who is prohibited from possessing firearms by 18 U.S.C. § 922(g)(4) may petition the Family Division of the Superior Court for an order that the person be relieved from the firearms disability imposed by that section. When the petition is filed, the petitioner shall provide notice and a copy of the petition to the State’s Attorney or the Attorney General, who shall be the respondent in the matter. The petition shall be filed in the county where the offense or the adjudication occurred.

  (2)(A) The court shall grant a petition filed under this section without hearing if neither the State’s Attorney nor the Attorney General files an objection within six months after receiving notice of the petition. If the court grants the petition pursuant to this subdivision, the court shall make findings and issue an order in accordance with this section.

  (B) The court shall grant the petition filed under this section without hearing if the petitioner and the respondent stipulate to the granting of the petition. The respondent shall file the stipulation with the court, and the court shall make findings and issue an order in accordance with this section.

  (b) In determining a petition filed under this section, unless the petition is granted pursuant to subdivision (a)(2) of this subsection, the court shall consider:

  (1) the circumstances regarding the firearms disabilities imposed on the person by 18 U.S.C. § 922(g)(4);

  (2) the petitioner’s record, including his or her mental health and criminal history records; and

  (3) the petitioner’s reputation, as demonstrated by character witness statements, testimony, or other character evidence.

  (c)(1) The court shall grant a petition filed under this section if it finds that the petitioner has demonstrated by a preponderance of the evidence that the person is no longer a person in need of treatment as defined in 18 V.S.A. § 7101(17).

  (2) As the terms are used in this subsection, a finding that the person is no longer a person in need of treatment shall also mean that granting the relief will not be contrary to the public interest.

  (d) If a petition filed under this section is granted, the court shall enter an order declaring that the basis under which the person was prohibited from possessing firearms by 18 U.S.C. § 922(g)(4) no longer applies. The court shall inform the Federal Bureau of Investigation, the U.S. Attorney General, and the National Instant Criminal Background Check System of its decision.

  (e) If the court denies the petition, the petitioner may appeal the denial to the Vermont Supreme Court. The appeal shall be on the record, and the Supreme Court may review the record de novo.

  (f) If the court denies a petition filed under this section, no further petition shall be filed by the person until at least one year after the order of the trial court, or of the Supreme Court if an appeal is taken, becomes final.

  (g) At the time a petition is filed pursuant to this section, the respondent shall give notice of the petition to a victim of the offense, if any, who is known to the respondent. The victim shall have the right to offer the respondent a statement prior to any stipulation or to offer the court a statement. The disposition of the petition shall not be unnecessarily delayed pending receipt of a victim’s statement. The respondent’s inability to locate a victim after a reasonable effort has been made shall not be a bar to granting a petition.

  (h) As used in this section, “reasonable effort” means attempting to contact the victim by first-class mail at the victim’s last known address and by telephone at the victim’s last known telephone number. (Added 2015, No. 14, § 7, eff. Oct. 1, 2015.)