reaching a similar conclusion adopting the Arizona court's approach in Bay
How later courts described this case
- reaching a similar conclusion adopting the Arizona court's approach in Bay
- requiring a qualified expert to opine on esoteric issues involving a complex instrumentality to determine why car engine seized
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2662-21
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, AS REDACTED
v. December 20, 2024
APPELLATE DIVISION
JEREMY ARRINGTON,
Defendant-Appellant.
_______________________
Argued October 8, 2024 – Decided December 20, 2024
Before Judges Sabatino, Berdote Byrne, and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 16-03-0689
and 17-05-1346.
Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer Nicole Sellitti,
Public Defender, attorney; Margaret McLane, of
counsel and on the briefs).
Frank J. Ducoat, Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Essex County
Prosecutor, attorney; Frank J. Ducoat, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
SABATINO, P.J.A.D.
In adopting the present Criminal Code in 1978, our Legislature delineated
the insanity defense to criminal charges using the following words:
A person is not criminally responsible for conduct if at
the time of such conduct he was laboring under such a
defect of reason, from disease of the mind as not to
know the nature and quality of the act he was doing, or
if he did know it, that he did not know what he was
doing was wrong.
[N.J.S.A. 2C:4-1 (emphasis added).]
As expressed in these terms, the insanity statute codifies the common-law
"M'Naghten" test dating back to nineteenth-century English law. The
Legislature has not revised this definition of insanity since Title 2C's enactment
nearly fifty years ago.
The primary legal issue in this appeal is whether criminal defendants in
New Jersey invoking N.J.S.A. 2C:4-1 are permitted to testify at trial about their
own allegedly insane mental state without accompanying expert testimony from
a qualified mental health professional. We concur with the trial court that such
lay testimony by a defendant, untethered to admissible expert opinion
substantiating the defendant's "disease of the mind," is inadmissible under our
Rules of Evidence and insufficient to advance an insanity defense under
N.J.S.A. 2C:4-1. This conclusion is supported by the history and text of the
A-2662-21
2
statute. It is also consistent with the case law of most of the states that have
addressed the issue under the M'Naghten test.
Although policy arguments can be made and have been made to revise the
criteria of N.J.S.A. 2C:4-1 and replace the traditional M'Naghten test with
modern concepts of mental disorders, the Legislature has not done so. Nor has
our Supreme Court invalidated the statute as unconstitutional or construed the
law to allow lay testimony to suffice to establish a defendant's insanity.
Consequently, we hold that defendants must have expert opinion testimony to
meet their burden of proving the defense of insanity. We affirm the trial court's
ruling that disallowed defendant in this case from testifying about his alleged
insane state of mind without calling such an expert.
In the unpublished portion of this opinion, we reject defendant's other
arguments for reversal of his convictions of multiple murders and other serious
crimes, but remand for resentencing.
I.
The factual background of this case is gruesome and need not be recounted
in detail here. Defendant Jeremy Arrington appeals from multiple convictions
that stem from a November 5, 2016 incident in which he broke into a Newark
apartment after seeing a Facebook post that made negative comments about him.
A-2662-21
3
Defendant proceeded to tie up and torture all, and kill some, of the inhabitants,
most of whom were children, by stabbing and shooting them. The surviving
victims all identified defendant as the person who committed these violent
crimes.
The State charged defendant in a twenty-nine-count indictment with
multiple murders, felony murder, attempted murder, aggravated assault,
criminal restraint, weapons charges, and other related offenses that we need not
enumerate in full here.
Before the jury trial, defense counsel argued his client was not competent
to stand trial. The defense relied upon the written report and pretrial testimony
of an expert psychologist who had examined defendant and deemed him
incompetent to stand trial. The psychologist diagnosed defendant with a severe
intellectual disability, alcohol and PCP use disorders, bipolar disorder, and
possible schizophrenia spectrum disorder. The State countered with expert
testimony of a psychiatrist who had examined defendant and reached an opposite
conclusion. In essence, the State's expert opined that defendant was feigning
incompetency. After a three-day competency hearing, a pretrial judge ruled in
September 2019 that defendant was competent to stand trial.
A-2662-21
4
Defendant was unable to retain an expert to present opinion testimony to
support his insanity defense at trial. His previous expert from the competency
hearings was no longer practicing psychology and was therefore unavailable to
testify. A second potential defense expert, a psychiatrist, was consulted, but
apparently was unable to testify. No other expert was identified who would
opine that defendant met the statutory test and the Public Defender's Office did
not pay for a third mental health expert.
Given the circumstances, defendant never proffered a report from any
mental health professional opining that he met the statutory definition of
insanity. Instead, defendant sought at trial to testify as a lay witness about his
mental state at the time when these homicidal and other criminal acts were
committed. He did not seek to have any other lay witnesses testify to
substantiate his alleged insanity.
Initially, the judge assigned to preside over the trial 1 ruled that defendant
could present an insanity defense to the jury without a supporting expert.
Subsequently, the judge reconsidered the question and concluded, as a matter of
1
This trial judge succeeded the pretrial judge who had conducted the
competency hearing.
A-2662-21
5
law, that the statute does not allow the insanity defense to get to a jury without
expert opinion. Defendant’s insanity defense was accordingly stricken.
The case proceeded to trial in February and March 2022. The State
presented multiple fact witnesses, forensic and DNA evidence, and other
extensive proofs of defendant's guilt. Defendant did not testify.
At the conclusion of the trial, the jury acquitted defendant of one count of
attempted murder (count twenty-one) and convicted him on all other charges.
The trial court sentenced defendant on April 8, 2022, as follows:
• life imprisonment subject to an eighty-five percent parole bar
pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2
("NERA") on count one (murder), into which counts three, twenty-
two and twenty-seven merged;
• twenty years with a ten-year period of parole ineligibility on count
two;
• eighteen months on count four;
• life imprisonment on count five, into which counts six, twenty-three
and twenty-eight merged, subject to NERA's eighty-five percent
parole bar;
• life imprisonment on count seven, into which counts eight and
twenty-nine merged, subject to NERA's eighty-five percent parole
bar;
• fifty years with a thirty-year period of parole ineligibility on count
ten, into which counts nine and eleven merged;
• fifty years with a thirty-year period of parole ineligibility on count
A-2662-21
6
thirteen, into which counts twelve and fourteen merged;
• fifty years with a thirty-year period of parole ineligibility on count
sixteen, into which counts fifteen and seventeen merged;
• eighteen months to be served without the possibility of parole on
count eighteen;
• five years on count nineteen;
• eighteen months to be served without parole on count twenty;
• five years on count twenty-four;
• eighteen months on count twenty-five; and
• ten years on count twenty-six, subject to a NERA eighty-five
percent parole bar.
All told, the court imposed an aggregate custodial term of 375 years with
a 281-year parole disqualifier. 2
On appeal, defendant makes the following points in his counseled brief:
POINT I
2
The court also sentenced defendant based on two separate indictments on April
8, 2022, Indictment Nos. 16-03-689 and 16-02-382, both of which charged
defendant with a variety of crimes. Defendant pled guilty to all of the charges
in Indictment No. 16-02-382 and four of the eight counts in Indictment No. 16-
03-689, and in exchange received a maximum sentence of seven years in a state
prison with forty-two months of parole ineligibility to run concurrently with his
sentence from Indictment No. 17-05-1346. Defendant's briefs do not expressly
argue the convictions based on these guilty pleas are infirm.
A-2662-21
7
THE COURT IMPROPERLY DEPRIVED
DEFENDANT OF HIS CONSTITUTIONAL RIGHTS
TO A DEFENSE AND TO TESTIFY.
POINT II
THE IMPROPER ADMISSION OF OTHER-CRIMES
EVIDENCE WITHOUT ANY LIMITING
INSTRUCTION REQUIRES REVERSAL OF
DEFENDANT'S CONVICTIONS (NOT RAISED
BELOW).
POINT III
DEFENDANT'S SENTENCE IS ILLEGAL.
Additionally, defendant makes the following arguments in his pro se
supplemental brief 3:
SUPPLEMENTAL POINT I
THE TRIAL COURT DEPRIVED APPELLANT OF
HIS RIGHT TO A TRIAL BY AN IMPARTIAL JURY
UNDER THE 6TH & 14TH U.S. CONSTITUTIONAL
AMENDMENTS, AND ARTICLE I, PARAGRAPH 10
OF THE NEW JERSEY CONSTITUTION.
SUPPLEMENTAL POINT II
THE TRIAL COURT DEPRIVED APPELLANT OF
HIS RIGHT TO BE PRESENT THROUGHOUT ALL
PORTIONS OF HIS TRIAL UNDER THE 6TH &
14TH U.S. CONSTITUTIONAL AMENDMENTS,
AND ARTICLE 1, PARAGRAPH 10 OF THE NEW
JERSEY CONSTITUTION (NOT RAISED BELOW).
3
We have slightly revised defendant's pro se points for grammatical reasons.
A-2662-21
8
SUPPLEMENTAL POINT III
THE TRIAL COURT DEPRIVED APPELLANT OF
HIS RIGHT TO COUNSEL UNDER THE 6TH &
14TH U.S. CONSTITUTIONAL AMENDMENTS,
AND ARTICLE 1, PARAGRAPH 10 OF THE NEW
JERSEY CONSTITUTION (NOT RAISED BELOW).
II.
A.
For nearly two centuries, the insanity defense in many American
jurisdictions has incorporated—or been adapted from—the test for legal insanity
expressed by the English House of Lords in 1843. See M'Naghten's Case, 8 Eng.
Rep. 718 (H.L. 1843). As Justice LaVecchia extensively traced the history in
State v. Singleton, New Jersey courts "adopted the M'Naghten test shortly after
it was introduced in England." 211 N.J. 157, 174 (2012) (citation omitted). Our
courts have employed the M'Naghten test "consistently thereafter." Ibid.
"When the Legislature adopted N.J.S.A. 2C:4-1 in 1978, L. 1978, c. 95, it
chose to preserve the M'Naghten test in spite of a recommendation from the New
Jersey Criminal Law Commission to abandon it in favor of the Model Penal
Code test." Ibid. (citing 2 Final Report of the New Jersey Criminal Law
Revision Commission, commentary to N.J.S.A. 2C:4-1, at 96–97 (1971)).
A-2662-21
9
As explained in Singleton, "[t]he M'Naghten test provides two distinct
paths for a defendant to demonstrate that he was legally insane at the time he
committed an act and therefore not criminally responsible for his conduct." Ibid.
"First, a defendant can show that 'he was laboring under such a defect of reason,
from disease of the mind as not to know the nature and quality of the act he was
doing.' N.J.S.A. 2C:4-1." Ibid. (emphasis added). "Second, even if the
defendant did know the nature and quality of the act, he can still establish legal
insanity if, because of a 'disease of the mind,' the defendant 'did not know what
he was doing was wrong." Id. at 174–75 (emphasis added).
"In the century-and-a-half since the M'Naghten test was formulated,
courts have recognized that the term 'wrong' in the second part of the test is
susceptible of multiple interpretations." Id. at 175. In New Jersey, the concept
of "wrong" has been held to embrace "notions of both legal and moral wrong."
Id. at 177 (quoting State v. Worlock, 117 N.J. 596, 609–10 (1990)). In "the odd
case in which a defendant is able to recognize that [defendant's] actions are
legally wrong but is nonetheless incapable of understanding that they are
morally wrong, [our Supreme Court has held that] 'the [trial] court should
instruct the jury that "wrong" encompasses both legal and moral wrong.'" Ibid.
(quoting Worlock, 117 N.J. at 611).
A-2662-21
10
N.J.S.A. 2C:4-1 "adhere[s] to the general proposition that a defendant who
has the mental capacity to know basic societal mores that distinguish objectively
between right and wrong is legally responsible for his criminal conduct." Id. at
160. "Mental illness does not in and of itself eliminate moral blameworthiness
under the test for criminal insanity enshrined in the Code of Criminal Justice."
Ibid. "The insanity defense exists in criminal law not to identify the mentally
ill, but rather to determine who among the mentally ill should be held criminally
responsible for their conduct." Id. at 173 (quoting State v. Sikora, 44 N.J. 453,
470 (1965)).
"The insanity defense is not available to all who are mentally deficient or
deranged; legal insanity has a different meaning." Cannel, New Jersey Criminal
Code Annotated, cmt. 2 on N.J.S.A. 2C:4-1 (2024). Our courts have long held
that "insanity is a defense to crime only when the diseased condition of mind
was such that the defendant did not know the nature and quality of the act he
was doing . . . ." State v. Maioni, 78 N.J.L. 339, 341 (E. & A. 1909). "Directed
at the defendant's ability to 'know,' the M'Naghten test is essentially one of
cognitive impairment. . . . [I]ts purpose is to determine whether the defendant
had sufficient mental capacity to understand what he was doing when he
committed the crime." Worlock, 117 N.J. at 603.
A-2662-21
11
"The insanity defense is 'an affirmative defense which must be proved by
a preponderance of the evidence.'" State v. Gorthy, 226 N.J. 516, 533 (2016).
This standard does not require a showing of the defendant's actual knowledge at
the time of the offense, but rather focuses on the defendant's ability to "perceive
the wrongfulness of his conduct." Worlock, 117 N.J. at 610. Thus, under the
right and wrong dichotomy, "a defendant is excused from criminal liability if at
the time of the commission of the offense, he or she lacked the capacity to
distinguish right from wrong." Ibid.
B.
The precise question before us concerns the means by which a defendant
in New Jersey may advance such an insanity defense at trial. Notably, before
the present Title 2C insanity provision was enacted in 1978, the former version
of the provision in Title 2A, N.J.S.A. 2A:163-2, required that the defense be
supported by the sworn certificates of two psychiatrists "in appropriate cases."
This difference under the previous statute was highlighted in State v. Whitlow,
45 N.J. 3, 12–13 (1965):
In New Jersey the Legislature has provided statutory
procedure for inquiry by the County Court or Superior
Court to determine the sanity of a person in
confinement under arrest or indictment for crime.
N.J.S.[A.] 2A:163-2[]. The statute referred to
contemplates institution of the proceedings by
A-2662-21
12
presentation to the court of an application by the
prosecutor or relatives or other interested persons,
supported by the certificates under oath of two
physicians who have made examinations and who
certify as to the accused's mental incapacity and need
for commitment. See N.J.S.A. 30:4-27 to [-]30. On
receipt of such papers the court may conduct a hearing
in open court, with or without a jury, and take the
testimony of qualified psychiatrists as to the mental
competency of the accused to stand trial. In appropriate
cases also, it may determine the sanity of the accused
at the time of commission of the offense.
[(Emphases added).]
In Whitlow, the relevant question before the Court was whether a criminal
defendant's right against self-incrimination was violated if the trial court ordered
that the defendant be examined by the State's psychiatrists for such an
assessment of competency to stand trial. Id. at 10. The Court held that a trial
court could mandate that a defendant attend and cooperate during such an
examination by the State's psychiatrists. Id. at 29. Pertinent to this appeal, the
Court stated in Whitlow:
When a defendant charged with crime pleads mental
incapacity to stand trial or innocence by reason of
insanity, obviously expert medical opinion is necessary
both for the defendant and for the State. Although lay
testimony as to insanity might be admissible, it is
unlikely in the extreme that exclusive reliance would
ever be placed on it. In the usual situation when
counsel advises the State or the court of his client's
mental incapacity for trial or for criminal
A-2662-21
13
responsibility, it may be assumed that defense
psychiatrists have already examined defendant and
furnished an expert opinion supporting the statement.
[Id. at 10 (emphases added).]
In State v. Scelfo, 58 N.J. Super. 472, 477–79 (App. Div. 1959), another
case tried under the Title 2A insanity provision, we held that the opinions of lay
witnesses concerning a defendant's alleged insanity could be admissible. But
we reached that holding in a context in which the defense had also presented
testimony from two psychiatric experts. Ibid.
When the present version of the insanity provision was enacted in 1978,
the Legislature eliminated Title 2A's procedural requirement for certifications
by two examining psychiatrists. But in doing so, the Legislature maintained the
general premise that a defendant would need to retain an expert to advance an
insanity defense at trial.
The words used in N.J.S.A. 2C:4-1 signal the necessity of such a testifying
expert. As we have noted, the statute requires the defendant to be "laboring
under such defect of reason, from disease of the mind . . . ." N.J.S.A. 2C:4-1
(emphasis added). A "disease" commonly refers to "a condition of the living
animal or plant body or of one of its parts that impairs normal functioning and
A-2662-21
14
is typically manifested by distinguishing signs and symptoms: SICKNESS,
MALADY ." Merriam-Webster's Collegiate Dictionary 358 (11th ed. 2020).
Black's Law Dictionary defines "disease" with similar diagnostic
connotations:
1. A deviation from the healthy and normal functioning
of the body <the drug could not be linked to his
disease>. 2. (pl.) Special classes of pathological
conditions with similar traits, such as having similar
causes and affecting similar organs <respiratory
diseases> <occupational diseases>. 3. Any disorder;
any depraved condition.
[Black's Law Dictionary 588 (12th ed. 2024).]
Meanwhile, Stedman's Medical Dictionary defines a "mental illness" as
encompassing a variety of forms of "diseases":
(1) a broadly inclusive term, generally denoting one or
all of the following: 1) a disease of the brain, with
predominant behavioral symptoms, as in paresis or
acute alcoholism; 2) a disease of the "mind" or
personality, evidenced by abnormal behavior, as in
hysteria or schizophrenia; also called mental or
emotional disease, disturbance, or disorder, or behavior
disorder;
(2) any psychiatric illness listed in Current Medical
Information and Terminology of the American Medical
Association or in the Diagnostic and Statistical Manual
of Mental Disorders of the American Psychiatric
Association.
[Stedman's Medical Dictionary 947 (28th ed. 2013).]
A-2662-21
15
Furthermore, under our professional licensing standards in Title 45 and
associated New Jersey regulations, laypersons generally are not qualified to
make diagnoses of diseases, whether they be physical or mental.4 It is unlawful
for persons to engage in such professional practices without a license. See, e.g.,
N.J.S.A. 45:9-6 (prohibiting the practice of medicine or surgery without a
license); N.J.S.A. 45:14B-5 (similarly prohibiting the unlicensed practice of
psychology); N.J.S.A. 45:14BB-9 (likewise prohibiting the unlicensed practice
of psychoanalysis).
We are mindful that, as our colleague discusses in his thoughtful
concurring opinion, the phrase "disease of the mind" derived long ago from the
M'Naghten test may be antiquated and worthy of a modern update. We are
4
See, e.g., N.J.S.A. 45:9-5.1 (broadly defining "the phrase 'the practice of
medicine or surgery' . . . [to] include the practice of any branch of medicine
and/or surgery, and any method of treatment of human ailment, disease, pain,
injury, deformity, mental or physical condition") (emphases added); N.J.S.A.
45:14B-2(b) (broadly defining "psychological services" to entail "the
application of psychological principles and procedures in the assessment ,
counseling or psychotherapy of individuals for the purposes of promoting the
optimal development of their potential or ameliorating their personality
disturbances and maladjustments as manifested in personal and interpersonal
situations") (emphases added); N.J.S.A. 45:14BB-3 (broadly defining
"psychoanalytic services" as "therapeutic services that are based on an
understanding of the unconscious and how unconscious processes affect the
human mind as a whole, including actions, thoughts, perceptions and emotions")
(emphases added).
A-2662-21
16
equally mindful that the meanings of medical and psychological terms are not
necessarily identical to their legal meanings. Even so, by retaining the term
"disease of the mind" within N.J.S.A. 2C:4-1 as a predicate to an insanity
defense, the statute contemplates that an expert mental health professional, not
an amateur layperson, is needed to render such a diagnosis of a mental disease.
Our holding in this regard is buttressed by the structure of the Rules of
Evidence. Those Rules divide opinion testimony into two categories: lay
opinions admissible under N.J.R.E. 701 and expert opinions admissible under
N.J.R.E. 702. N.J.R.E. 701 governs lay opinions of witnesses who are "not
testifying as an expert." On the other hand, N.J.R.E. 702 prescribes that:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise.
[(Emphases added).]
The propriety of whether a lay witness may testify on a particular subject
matter depends on the context, and whether that context inherently involves a
topic that is "beyond the ken" of the average layperson. Jacobs v. Jersey Cent.
Power & Light Co., 452 N.J. Super. 494, 505 (App. Div. 2017). "[E]xpert
testimony is required when 'a subject is so esoteric that jurors of common
A-2662-21
17
judgment and experience [without the benefit of such expert opinion] cannot
form a valid conclusion.'" Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450
(1993) (quoting Wyatt by Caldwell v. Wyatt, N.J. Super. 580, 591 (App. Div.
1987)); see also Ford Motor Credit Co., LLC v. Medola, 427 N.J. Super. 226,
239 (App. Div. 2012) (requiring a qualified expert to opine on esoteric issues
involving a complex instrumentality to determine why car engine seized).
Here, the subject of whether a criminal defendant was "laboring under
such a defect of reason, from disease of the mind" at the time of the charged
offense is a complex subject—one that necessitates expert testimony by a
psychiatrist, a psychologist, or some other duly qualified mental health
professional. The assessment entails "scientific, technical, or other specialized
knowledge." N.J.R.E. 702. Without guidance from such an expert to help them
understand the processes of the human mind, jurors assessing a defendant's
sanity could founder on the shoals of speculation and misunderstanding. In fact,
the Model Criminal Jury Charge on the insanity defense implicitly presumes the
jurors will have heard testimony from one or more experts on the defendant's
mental condition. Model Jury Charges (Criminal), "Insanity (N.J.S.A. 2C:4-1)"
(approved Oct. 1988) (referring, among other things, to "a conflict of medical
testimony" that the jurors must resolve).
A-2662-21
18
This is not to suggest that the disciplines of psychiatry and psychology are
entirely objective and scientific. To be sure, there are plenty of instances in
which such professionals will disagree, as exemplified by the competing expert
opinions presented at defendant's own competency hearing.
Our core point is that there is no reason to believe the Legislature intended
to allow the "disease of the mind" requirement under N.J.S.A. 2C:4-1 to be
determined solely with lay testimony. We do not foreclose defendants offering
lay evidence—including their own testimony if they waive self-incrimination
rights—to provide facts that may inform the testifying experts' opinions and the
jurors' knowledge of the record. For instance, laypersons with personal
knowledge under N.J.R.E. 602 who know or have observed the defendant might
recount peculiar behaviors they have witnessed. But where, as here, a defendant
wants to take the stand and present an amateur self-diagnosis of mental illness
without an expert, that is a bridge too far in the absence of a revision of the
statute.
Defendant argues he has a Sixth Amendment entitlement to testify as he
sees fit and tell the jury why he personally believes he was insane at the time of
these atrocious crimes. No case in our state has ever constitutionally required
such monologues. Nor has defendant identified any reported opinion from
A-2662-21
19
another state utilizing the M'Naghten test that has recognized such a
constitutional mandate. We are cognizant that at least a two states, Arizona and
Ohio, have authorized defendants to present an insanity defense without expert
testimony under the M'Naghten test, but those states have not been shown to
represent the dominant view. State v. Bay, 722 P.2d 280, 284–85 (Ariz. 1986);
State v. Reynolds, 550 N.E.2d 490, 496 (Ohio Ct. App. 1988) (reaching a similar
conclusion adopting the Arizona court's approach in Bay).5
Most other states that have addressed the subject in M'Naghten
jurisdictions have required expert testimony. For example, in People v. Moore,
117 Cal. Rptr. 2d 715, 723 (Ct. App. 2002), the California Court of Appeal
observed that "[e]xpert medical testimony is necessary to establish a defendant
suffered from a mental disease, mental defect, or mental disorder because jurors
cannot make such a determination from common experience." See also
Commonwealth v. Fortune, 302 A.3d 780, 787 (Pa. Super. Ct. 2023) (same);
State v. Raine, 829 S.W.2d 506, 511 (Mo. Ct. App. 1992) (same); Doyle v. State,
5
Our concurring colleague cites Georgia case law to support the assertion that
expert testimony should not be required to raise an insanity defense, but
Georgia's insanity standard is less rigorous than the M'Naghten test and requires
the defendant show only a lack of "mental capacity to distinguish between right
and wrong," without any requirement of proving "disease." Ga. Code Ann. §
16-3-2.
A-2662-21
20
785 P.2d 317, 322–23 (Okla. Crim. App. 1989) (same). We regard the opinions
of these other states to be the sounder approach.
C.
Applying these principles here, we affirm the trial court's exclusion of
defendant's proposed lay testimony about his alleged insanity. There was no
need for the court to conduct a Rule 104 admissibility hearing. The court
appropriately exercised its role as a gatekeeper to bar the testimony. See State
v. Olenowski, 253 N.J. 133, 154 (2023) (stressing the court's gatekeeping
function in the admission of opinions about subject matters involving expert
methodologies).
We close our discussion with a recognition that our role as an intermediary
appellate tribunal is institutionally limited. State v. Carrero, 428 N.J. Super.
495, 511 (App. Div. 2012). We take no position on whether the reforms
suggested by our colleague to modernize the M'Naghten standard should be
adopted or whether any legislative change is warranted. In the absence of such
direction by the Legislature or our Supreme Court, we conclude this defendant's
conviction should not be rescinded based on such policy-laden possibilities.
[At the direction of the court, the published version
of this opinion omits Part III, which addresses other
A-2662-21
21
points raised by defendant and his counsel. R. 1:36-
3.]
IV.
To the extent we have not discussed them, all other points raised by
defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed as to the convictions; remanded for resentencing.
A-2662-21
22
JACOBS, J.S.C., temporarily assigned, concurring.
I join in the outcome but depart from the majority holding insofar as it
mandates expert testimony in all cases where a defendant elects to advance an
insanity defense. It is my position that a defendant should not be categorically
precluded from advancing an insanity defense in those rare instances where
expert testimony is unsolicited or unavailable.
I.
The elements of the insanity defense manifest in a mosaic of approaches.
In Kansas v. Kahler, 589 U.S. 271 (2020), the Supreme Court surveyed varying
approaches to the defense nationwide, holding the Due Process Clause does not
require a uniform standard for proving whether a defendant could "distinguish
right from wrong" as articulated in the moral-incapacity prong of the M'Naghten
test.1 Indeed, the Court has declined to constitutionalize any particular version
of the insanity defense, holding instead that a state's "insanity rule[ ] is
substantially open to state choice." Clark v. Arizona, 548 U.S. 735, 752 (2006).
Just as the Supreme Court has tolerated an expansive approach to the
insanity defense, our jurisprudence ought to allow a range of means to establish
1
Of the states that have adopted the M'Naghten or Model Penal Code (MPC)
tests, some interpret knowledge of wrongfulness to refer to moral wrong,
whereas others hold it to mean a legal wrong. Kahler, 589 U.S. at 312; see
N.J.S.A. 2C:4-1.
that defense. In doing so, we should first acknowledge that not all complex
questions require the aid of experts to be resolved. As the bedrock of our justice
system, jurors should be trusted to sort through mental processes which may
otherwise be overly complicated by expert opinion and abstruse nomenclature.
For example, it is not uncommon for mental health professionals to opine that a
given defendant is malingering, defined in the Diagnostic and Statistical Manual
of Mental Disorders "[a]s the intentional production of false or grossly
exaggerated physical or psychological symptoms, motivated by external
incentives . . . . " Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders 836 (5th ed., text rev. 2022).2 Even so, an average juror may
just as capably assess a defendant testifying in support of their own insanity
defense without expert input to be "crazy like a fox." In such an assessment,
2
https://www.mredscircleoftrust.com/storage/app/media/DSM%205%20TR.pdf.
Regarding this term, our Supreme Court observed in Rodriguez v. Wal-Mart
Stores, Inc., "[a]lthough 'malingering' was removed from the index in the DSM-
5, it remains a diagnostic code, and the criteria for its consideration remain
unchanged." 237 N.J. 36, 60 (2019). The Court went on to limit the use of the
term, ruling that "the term 'malingering' raises heightened concerns since it may
implicate credibility. Therefore, a medical expert's use of the term must be
carefully scrutinized, applying an N.J.R.E. 403 balancing test, reviewed on
appeal under an abuse of discretion standard." Id. at 66.
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2
jurors are no more or less likely to speculate or misunderstand than they are in
regularly making a myriad of other difficult findings.
Permitting jurors to consider an insanity defense absent expert testimony
is consistent with the recognized futility of reducing insanity to a fixed
formulation, subject to definitive identification through clinical examination and
expert exposition. In Kahler, Justice Kagan wrote of the defense's inherent
fluidity:
As the American Psychiatric Association once noted,
"insanity is a matter of some uncertainty." Insanity
Defense Work Group, Statement on the Insanity
Defense, 140 Am. J. Psych. 681, 685 (1983). Across
both time and place, doctors and scientists have held
many competing ideas about mental illness. And that
is only the half of it. Formulating an insanity defense
also involves choosing among theories of moral and
legal culpability, themselves the subject of recurrent
controversy. At the juncture between those two spheres
of conflict and change, small wonder there has not been
[] stasis [] with one version of the insanity defense
entrenched for hundreds of years.
And it is not for the courts to insist on any single
criterion going forward. We have made the point
before, in Leland, Powell, and Clark. Just a brief
reminder: "[F]ormulating a constitutional rule would
reduce, if not eliminate, [the States'] fruitful
experimentation, and freeze the developing productive
dialogue between law and psychiatry into a rigid
constitutional mold." Or again: In a sphere of "flux and
disagreement," with "fodder for reasonable debate
about what the cognate legal and medical tests should
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3
be," due process imposes no one view of legal
insanity. Defining the precise relationship between
criminal culpability and mental illness involves
examining the workings of the brain, the purposes of
the criminal law, the ideas of free will and
responsibility. It is a project demanding hard choices
among values, in a context replete with uncertainty,
even at a single moment in time. And it is a project, if
any is, that should be open to revision over time, as new
medical knowledge emerges and as legal and moral
norms evolve. Which is all to say that it is a project for
state governance, not constitutional law.
[Kahler, 589 U.S. at 296 (citing Leland v. Oregon, 343
U.S. 790, 798 (1952); Powell v. Texas, 392 U.S. 514,
536-37 (1968); Clark, 548 U.S. at 752-53).]
New Jersey Chief Justice Weintraub also recognized the futility in
diagnosing a fixed disease or defect of the mind:
What is a disease or defect of the mind? What, in terms
appropriate to criminal responsibility, differentiates the
functional aberration called a disease or defect of the
mind from what is inscrutably called a defect of
character? However helpful such classifications may
be in the approach to the treatment of the sick, I cannot
find in them a pivotal fact upon which criminal liability
would depend, a key fact to which the trial and the
jury's consideration could be addressed. I suspect that
if psychiatrists were asked to fix a line, most would
resort to an ethical or social concept, the truth of which
they could not expertly demonstrate.
[State v. Lucas, 30 N.J. 37, 76 (1959) (Weintraub, C.J.
concurring).]
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4
In this context, we bear in mind the origin of the M'Naghten rule,
unchanged in New Jersey since its adoption in 1846, ten years before the birth
of Sigmund Freud. Id. at 66 (referencing State v. Spencer, 21 N.J.L. 196 (Oyer
and Terminer 1846)). This test was applied by jurors decades before the advent
of psychiatric expertise. It may yet be applied without need for such expertise.
Permitting a defendant to testify absent an expert intervenor has the added
benefit of allowing jurors to directly observe a defendant's demeanor. Such an
experience is often foreclosed in what has developed in the modern era to be a
"battle of the experts," where jurors hear nothing more than competing
assessments of how a defendant purportedly behaved at the time of an alleged
crime or subsequent evaluation, and whether they should be considered not
guilty by reason of insanity.
Before the development of forensic psychiatry, assessing a person's sanity
was squarely within the realm of common experience, illuminated through
literature, among other cultural and artistic expression. In Hamlet, readers can
discern for themselves whether Ophelia's madness is genuine or Hamlet's is
feigned.3 Likewise, the rub of this case lies in discerning a subject's true state
3
WILLIAM SHAKESPEARE , H AMLET act 2, sc. 2, l. 223-24. See, e.g., Tenney L.
Davis, The Sanity of Hamlet, 18 J. Phil., 629, 630-33 (1921); Stacey Anne
A-2662-21
5
of mind; whether he knew the nature and quality of his acts, and if he did,
whether he knew what he was doing was wrong. Resolving this inquiry lies
peculiarly and ultimately within human comprehension, unaided by expert
scrutiny when circumstances dictate.
Since Shakespeare, descriptions of insanity have evolved. We no longer
refer to mental illness as states of "fury," "delirium," or "melancholia." 4 Such
terms, while still within our lexicon, would be anachronistic in describing
psychiatric illnesses like bipolar disorder or schizophrenia. Similarly, since
inception of the M'Naghten test, its operative phrase – "disease of the mind" –
has become anachronistic. But while descriptions and definitions have become
outmoded, the concept of insanity remains sufficiently comprehensible for
jurors to have the capacity to know it when they see it.
II.
Stewart, Though This Be Madness, Yet There Is Method in't: Madness,
Melancholy, and Mirth in the Acting of Hamlet (1997) (M.A. thesis, The Ohio
State University) (OhioLINK).
4
Carolyn Darr et al., A Timeline of Words Used to Describe Mental Illness,
in Divinest Sense: Madness in 18th Century England (2013),
https://websites.umich.edu/~ece/student_projects/madness/terminology.html.
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6
As the majority recounts, two mental health professionals examined
defendant and testified as to his competency to proceed in May 2019,
approximately twenty months before trial began in February 2022. Dr. Chester
Sigafoos, a psychologist, testified that defendant was not competent to stand
trial, diagnosing him with severe mental retardation, alcohol use disorder, PCP
use disorder, bipolar disorder, and possible schizophrenia spectrum disorder.
The State called a psychiatrist, Dr. Douglas Smith, who testified defendant was
competent to stand trial.
In September 2019, the trial court rendered a decision, finding Dr.
Sigafoos's testimony less than credible and concluding defendant was competent
to stand trial. Immediately after the court rendered its ruling, defense counsel
informed the court that Dr. Sigafoos was no longer practicing psychology. The
defense also hired a psychiatrist to examine defendant but that psychiatrist was
not available to testify. The Public Defender's Office refused to pay for a third
mental health professional.
At this point, the trial record highlights defense counsel's procedural
conundrum:
THE COURT: I under – I understand these are very
serious charges and I'm not particularly happy about a
request for adjournment, but – but I understand these
are very serious charges and to try to force you when
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7
you're building a record such as this would be very
difficult.
....
I think I would strongly encourage you to reach out to
Dr. Sigafoos and see if he would -- see if he was able
to testify remotely, if that’s a possibility. And if it’s
not a possibility, then I think you either have to forgo
insanity or I would, perhaps -- I hate to do it, but I
would, perhaps, maybe, allow you to quickly see if you
could come up with another doctor. But I don’t think
you really have expressed an interest in doing that,
right?
DEFENSE COUNSEL: Judge, I don’t have the ability
to do it given the framework that I’m operating under.
THE COURT: Okay. All right. Then I guess you’re
just not going to be able to argue insanity, that’s all.
It’ll be, well, general denial or something[.]
Instead, defense counsel switched tactics, notifying the court that
notwithstanding the absence of a mental health expert, defendant intended to
advance an insanity defense. In substance, the proffer consisted of the facts of
the case itself. As surmised by the court, defendant's tactic was to highlight the
gruesomeness of the crimes, such that "the more prejudicial [the details,] the
better [the defense]."
Subsequently, the court ruled defendant could not advance an insanity
defense on that basis alone:
A-2662-21
8
THE COURT: I don’t see how you can have an
insanity case without a doctor or an expert coming into
court to testify as to Mr. Arrington’s state of mind. . .
[U]pon further reflection from the last time we were in
court, I -- even if you were to have Mr. Arrington
testify, I don’t know that he would be qualified to
testify as to his own state of mind as far as . . . whether
or not he would qualify, you know -- that he did not
understand -- appreciate the consequences of his
behavior, and that he -- he’s really not qualified to give
an opinion about whether or not he was insane or not at
the time of the offense. So, without a doctor to . . .
come in to do that, I don’t see how you’ll -- you -- and
I wouldn’t allow you to even bring insanity into the
case.
Defense counsel argued the court was taking a different position than it
had previously, now disallowing defendant to testify unless he also had an expert
testify.
DEFENSE COUNSEL: Now you’re saying I need a
medical expert, or else I can’t have insanity.
THE COURT: I -- I -- I think you’re right . . . because
I’ve been struggling -- candidly, I’ve -- and -- I’ve --
I’ve been struggling with the notion that ever since you
said you weren’t going to be seeking another doctor, I
was struggling with how you might be able to establish
. . . the affirmative defense. And, you know, from our
last conversation in court . . . I did indicate . . . you’ve
got to have some evidence. You’ve got to have some
witness to come in. And I -- and I probably did say at
least the defendant taking the stand to say . . . he was,
you know, out of his mind or whatever he -- he might
say. But I don’t -- but upon further reflection, and
looking over the charge and looking over the, you
A-2662-21
9
know, the law, I don’t see how he, Mr. Arrington, could
be qualified to make such an assessment of his own
mental capacity . . . I think you have to have someone
else come in, like a -- someone who’s qualified, a
doctor, to be able to testify and give his . . . or her
opinion on Mr. Arrington’s state of mind.
COUNSEL: Okay, Judge, if that’s the [c]ourt’s
position now, but . . . Mr. Arrington’s testimony would
be other evidence, that I had the – belie[f] that the jury
could rely on the evidence as testified to by State
witnesses to come to the conclusion that the defendant
did not know what he was doing was wrong. So, Your
Honor’s placing an increased burden, I think, on the
defense and actually gutting the portion of the charge
and the definition of what is insanity by requiring that
we have an expert.
COURT: Well, I don’t think I’m changing. I -- I think
I made it very clear last time we were in court. That’s
part of the reason why I didn’t allow . . . any voir dire
questions to the jury about insanity because it didn’t
seem like . . . you were going to be able to establish any
insanity defense. And therefore, it would be out of the
– out of the case. And that’s why I -- that’s why your
voir dire questions you proposed, many of which had to
do with insanity, I said no based on the representations
that you had indicated.
COUNSEL: Judge, . . . your ruling before -- and I
realize you said you’d reconsidered, but that your
ruling before was that as long as any witness took the
stand, including the defendant, that the defense of
insanity could still be given to the jury. But now your
position is it has to be a medical doctor and someone
qualified and the -- it’s really, as I indicated, guts the
jury’s ability to listen to the other testimony and . . . to
lay testimony to come to the conclusion that the
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10
defendant did not know the difference between right
and wrong, that he’s proven that by a preponderance of
the evidence.
Rather than summarily preclude defendant from pursuing an insanity
defense, the better course was for the court to conduct a Rule 104 hearing.
Before a jury issue can arise with respect to the
existence of a mental disease or defect, and the absence
of the requisite state of mind as a result thereof, a
defendant must come forward with competent, reliable
evidence about the existence of such a disease or defect
which a reasonable juror could credit.
[State v. Murray, 240 N.J. Super. 378, 399 (App. Div.
1990) (citing Humanik v. Beyer, 871 F.2d 432, 443 (3d
Cir. 1989); State v. Juinta, 224 N.J. Super. 711, 724
(App. Div. 1988)).]
Even without a Rule 104 hearing, however, it is clear from the competency
hearing that defendant could not adduce the quantum of reliable evidence
necessary to have an insanity defense entertained by a jury. At the conclusion
of the competency hearing, the trial court made its findings, noting it "ha[d]
great concerns with the credibility of Dr. Sigafoos" and determined defendant
competent to stand trial. In reaching its conclusion, the trial court found there
was "a very persuasive reason to show that the defendant was feigning
incompetence." Among the instances leading to this finding was defendant's
full familiarity with Miranda rights and their meaning, as well as defendant's
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11
insistence to "sell" his version of events to police during a two-hour
interrogation in which he said, "the children were stabbing each other" and
"never admitted shooting the one victim in the head [and] claimed that one of
the other children had done it." The trial court noted too that defendant had
"normal interactions with staff and other inmates or patients" but that "there was
an abrupt change when the defendant spoke with the clinical staff," where he
either remained mute or "at other times spoke in [a] short, soft tone, with short
answers . . . g[iving] simplistic phrases to some of the questions." The trial court
also observed:
[D]efendant told a mental health counselor [in a note]
that he was faking [] mental illness so it would be in his
records when he goes to [c]ourt. In that same note,
there was a reference made that Mr. Arrington was also
reading law books at the time, which again is contrary
to what Dr. Sigafoos said regarding his mental IQ.
The trial court's finding that defendant was feigning mental illness
satisfies the standard that the Ninth Circuit applies when faced with the question
of whether lay testimony alone can ever support a finding of insanity. 5 In United
5
States differ in their rules governing the necessity of expert testimony to prove
an insanity defense. At present, New Jersey follows the M'Naghten rule, and
the majority holds that expert testimony is mandated. In contrast, the Georgia
Supreme Court has explicitly held expert testimony is not necessary to support
an insanity defense under its more lenient standard. Perez v. State, 281 Ga. 175,
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12
States v. Keen, defendant appealed his convictions for bank robbery, contending
he had been wrongfully prevented from raising an insanity defense resting solely
on his own testimony and that of his family members. 104 F.3d 1111 (9th Cir.
1996). "Without reaching the question of whether lay opinion alone can ever
support a finding of insanity," the Circuit Court upheld the trial court's decision
to preclude defendant from going forward because "[a] review of the statements
made by Keen's counsel reveal[ed] that the proffered evidence of insanity was
statutorily insufficient." Id. at 1117. In so concluding, the Keen court applied
a standard I urge we adopt:
whether there is present a sufficient quantum of
evidence to justify a jury instruction on the insanity
defense: "[w]here the issue of insanity has otherwise
been properly raised, a federal criminal defendant is
due a jury instruction on insanity when the evidence
would allow a reasonable jury to find that insanity has
been shown with convincing clarity . . . ."
[Id. at 1116-17 (emphasis added) (citing United States
v. Whitehead, 896 F.2d 432, 435 (9th Cir. 1990))
(quoting United States v. Owens, 854 F.2d 432, 435
(11th Cir. 1988)).]
176 (2006) ("[A]n insanity defense does not require the expert testimony of a
psychologist or psychiatrist."); see Ga. Code § 16-3-2 ("A person shall not be
found guilty of a crime if, at the time of the act, omission, or negligence
constituting the crime, the person did not have mental capacity to distinguish
between right and wrong in relation to such act, omission, or negligence.").
A-2662-21
13
Though imperfect in approach, a like outcome was warranted here, where
the quantum of evidence proffered would not have allowed a reasonable jury to
find defendant insane under M'Naghten. Concurring in the result reached, I note
that
[t]he proper and rational standard [for the review of
claimed trial errors] is not perfection; as devised and
administered by imperfect humans, no trial can ever be
entirely free of even the smallest defect. Our goal,
nonetheless, must always be fairness.
"A defendant is entitled to a fair trial but not a perfect
one."
[State v. R.B., 183 N.J. 308, 333-34 (2005) (quoting
Lutwak v. U.S., 344 U.S. 604, 619 (1953)).]
Finally, I observe that the right to present a viable defense is central to our
jurisprudence, but it is not inviolable. This court has held that a defendant may
be precluded from raising an insanity defense where he fails to provide the state
notice of that affirmative defense under Rule 3:12. In State v. Burnett, 198 N.J.
Super. 53, 58 (App. Div. 1984), we recognized:
Our Constitution "does not protect a defendant from the
consequences of the defense he makes, nor assure him
a right so to defend as to deny the State a chance to
check the truth of his position." Given the ease with
which the defenses of insanity and diminished capacity
can be fabricated, the State's interest in protecting itself
against "an eleventh-hour" claim is both obvious and
legitimate.
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14
[(citations omitted)].
Here, defendant attempted to advance an insanity defense without expert
support. The trial court precluded its pursuit for sound reasons. In the end, I
concur in the outcome, concluding that the trial court's ruling was not clearly
capable of producing an unjust result. R. 2:10-2.
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