People v. District Court for County of Jefferson

Mr. Justice McWilliams

dissenting.

The majority hold that 1965 Perm. Supp., C.R.S. 1963, 39-8-1, as amended by Chapter 163, Session Laws of 1967, is unconstitutional because it violates Article II, §25 of the Colorado constitution. With this conclusion I am in very definite disagreement, as the statute in question in my view of the matter does not offend due process.

Article II, §25 of the Colorado constitution provides *271 that “no person shall be deprived of life, liberty or property, without due process of law.” This provision of course parallels that portion of the XIV Amendment to the United States Constitution which prohibits a state from depriving any “person of life, liberty, or property without due process of law. . . .” In this regard, as I understand it, though the majority of this court hold that the statute under consideration offends the due process clause of our Colorado constitution, they do not hold the statute to be repugnant to so-called federal due process. In view of Leland v. Oregon, 343 U.S. 790 , 72 S. Ct. 1002 , 96 L.Ed. 1302 , the majority of course could not very well declare the statute to violate federal due process. And it is still a bit difficult for me to understand just how the statute with which we are here concerned does not violate federal due process, but at the same time does violate state due process.

Prior to 1967, the applicable statute in this state provided that in a trial stemming from the entry in a criminal proceeding of a plea of not guilty by reason of insanity “the burden shall be on the prosecution to prove by a preponderance of the evidence that the defendant was sane at the time of the alleged commission of the crime.” See 1965 Perm. Supp., 1963, 39-8-1(3). The General Assembly in 1967, however, amended this particular section so as to read as follows: “[t]he burden shall be on the defendant to prove by a preponderance of the evidence that he was insane at the time of the alleged commission of the crime.” Accordingly, the question is whether this amendment, which casts upon a defendant who pleads not guilty by reason of insanity the burden of establishing his insanity by a preponderance of the evidence, deprives the defendant of either his life, liberty, or property without due process of law. I do not believe that it does, and I shall now attempt to demonstrate why this statute does not violate the due process clauses of either our state or federal constitution.

*272 At the outset it is well to examine rather carefully the precise nature of the proceeding which results from the entry of a plea of not guilty by reason of insanity. A plea of not guilty by reason of insanity is somewhat in the nature of a confession and avoidance in the sense that insofar as the plea itself is concerned, the defendant who elects to enter the plea seeks to avoid the consequences of his otherwise criminal actions by contending that he is insane and not accountable therefor. By this statement I do not mean to be understood as saying that a defendant cannot join a general plea of not guilty with a p.ea of not guilty by reason of insanity. He may, of course. What I am saying, however, is that the trial which is precipitated by a plea of not guilty by reason of insanity is not concerned with the defendant’s guilt or innocence, as such, but is only concerned with his mental status, i.e., is the defendant insane? Furthermore, the statute set forth in 1965 Perm. Supp., C.R.S. 1963, 38-9-3 provides that where the issue of insanity is raised in a criminal proceeding the matter should be determined in a trial which is completely separate and apart from the trial of the so-called main issue in the case, namely the guilt of the accused. And the fact that in a given case a defendant may be adjudged to be sane certainly does not mean that he is guilty of the crime with which he is charged. That is another issue to be separately litigated and determined.

Inasmuch, then, as the sanity trial is not one to determine the guilt of the accused, the so-called presumption of innocence, for example, I submit has no particular applicability. This is so inasmuch as the issue as to guilt, or not, is to be resolved in a separate and different proceeding where the presumption of innocence would of course come into play. Although at the outset of a trial to determine the guilt of the defendant there is a presumption of innocence, there never has been any presumption of innocence by reason of insanity. As a matter of fact, as concerns the issue of sanity, the pre *273 sumption has always been to the contrary, namely that a defendant even though he has pled innocence by reason of insanity is nonetheless still presumed to be sane. This is the presumption which the majority in my opinion failed to properly recognize as playing an important role in the present controversy. And the reason for this presumption of sanity is the belief, which I indeed trust is correct, that the majority of people are sane.

Lest it be thought that Colorado is the only state to place on the defendant the burden of proving insanity, it should be pointed out that among the several states there presently is, and for a long time has been, a very pronounced split of authority as to whether the People have the burden of proving the accused’s sanity or, conversely, the defendant has the burden of establishing his insanity. In Weihofen, Mental Disorder as a Criminal Defense 212-272 (1954) that learned author and authority indicates that the American courts are almost evenly divided on the question as to whether the People or the defendant has the burden of proof on the issue of insanity. Professor Weihofen lists those jurisdictions which either by statute or judicial decision have placed this burden of proof on the defendant as follows: Alabama, Arkansas, California, Delaware, Georgia, Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Montana, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Virginia, Washington and West Virginia.

And, as indicated, the rule that the defendant has the burden of proving insanity when he elects to plead such a defense is most certainly not one of recent origin. By way of example, Oregon in 1864 enacted a statute providing that the defendant must prove insanity beyond a reasonable doubt if he would avoid responsibility for his acts. Indeed, that would appear to be the very rule of the famous McNaghten case, wherein it was stated: “[T]he jurors ought to be told in all cases that every *274 man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and .... to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused 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 . . . .” (Emphasis added.)

. I recognize, however, that prior to 1967 in Colorado the burden of proof in a so-called insanity trial was admittedly placed on the prosecution. This rule was initially the result of judicial decision, and then later by statute. It is perhaps of historical interest to note that when this court by judicial decision adopted the rule that the People had the burden of proof in this regard it was not on any basis that “due process” required such a rule. On the contrary, it was simply on the basis that such rule was then believed to be “the better doctrine” and as of that time, at least, represented the so-called “weight of authority.” See, for example, Pribble v. People, 49 Colo. 210 , 112 P. 220 . Initially, then, I contend that this court, or the General Assembly, could have gone “either way” on the question as to whether the People or the defendant had the burden of proof when the defendant pleads insanity. Such being the case, the fact that the court and then the General Assembly decided to place the burden on the People does not in my view of the matter mean that such determination is so engrafted onto due process that the rule could never thereafter be changed except by constitutional amendment.

Furthermore, my attention has not been directed to any reported decision from any jurisdiction where a statute of the type with which we are here concerned has been held to be violative of due process. And on the contrary there are decisions which hold that such sta *275 tutes are not violative of “due process.” Let us examine some of them.

Reference should first be made to Leland v. Oregon, supra. In that case the United States Supreme Court was called upon to determine whether a statute of Oregon, which placed upon a defendant who pleads not guilty by reason of insanity the burden of proving his insanity beyond a reasonable doubt, violated the due process clause of the XIV Amendment. In holding that the statute there under consideration, which incidentally goes a bit further than does our statute on the subject, did not violate due process, the United States Supreme Court flatly declared that casting the burden on the defendant on the issue of sanity did not violate “generally accepted concepts of basic standards of justice” and did not offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.” I agree with this appraisal of the matter. I recognize that there was a dissent by two justices in the Leland case, and I suggest that the majority of this court in the instant case are most definitely out of harmony with the majority in the Leland case, and on the contrary are adopting the rationale of the dissent as voiced by Mr. Justice Frankfurter. This I choose not to do.

As above noted, the state of Oregon in 1864 enacted a statute which thrust on the defendant the burden of establishing his insanity beyond a reasonable doubt. In upholding the constitutionality of this statute and declaring that the statute did not violate due process, the Supreme Court of Oregon in State v. Grieco, 184 Ore. 253 , 195 P.2d 183 declared as follows:

“. . . . The sole question here involved is whether it was within the power of the legislature to place upon a defendant accused of a crime the burden of establishing his insanity beyond a reasonable doubt. Does the statute so deprive the defendant of the benefit of the presumption of innocence that it may be said that he has been *276 convicted without due process? It is not for this court to invade the province of the legislature and to determine which of the various theories supported by judges or law writers is the most logical and reasonable. The strong argument of counsel for defendant on this phase of the case would be more appropriately addressed to the legislature.....It is not in the province of the courts to question the policy of the law or to say that the rule established in such cases is inhuman, or that the state should, in any contingency, be required to establish the fact of sanity, like any other fact, beyond a reasonable doubt.”

In United States v. Naples, 192 F. Supp. 23 (1961) District Judge Alexander Holtzoff made the following comment:

“Ineluctable logic, therefore, leads to the conclusion that when Congress directed that any person acquitted on the ground of insanity should be forthwith committed to a mental institution, it intended by necessary implication to provide that an acquittal on the ground of insanity should include an affirmative finding of insanity. It inevitably follows that thereby Congress shifted the burden of proof from the Government to the defendant to establish the defense of insanity, instead of requiring the Government, in effect, to disprove it. Necessarily, proof on behalf of the defendant on this issue would not have to be beyond a reasonable doubt, but proof by a preponderance of evidence would be sufficient. There is no question that it is within the purview of the legislative branch of the Government to regulate the burden of proof, and that it is not violative of due process of law to cast on the defendant the burden of proof on the issue of insanity(Emphasis added.)

Without unduly burdening this dissent by citing and quoting from decisions of other courts, I would again observe that this is the first time that any court in a reported decision has ever held that a statute or rule *277 of court which places on the defendant the burden of proving insanity violates due process. In this connection it is to be noted that the majority cite no prior decisions from this or any other court which support their conclusion that due process precludes a statute of the type with which we are here concerned. To the contrary, the cases cited in the majority opinion are Colorado cases which simply recognize and give effect to a rule which was first promulgated by judicial decision, and later by statute, which places the burden on the People to prove the defendant’s sanity. Being only a judicially announced rule, then, the rule could have been changed by this court, if it had been so inclined, or by the legislature, as it in fact did in 1967. This in my view necessarily follows, unless by our act of announcing a rule v/e have thereby expanded due process to encompass the very rule itself. And I do not subscribe to any such line of reasoning.

It would appear that perhaps the same argument was made in the Leland case. In any event, after recognizing that the prevailing rule, historically speaking, was to place the burden on the defendant to prove his insanity, since most men are presumed sane, the United States Supreme Court in the Leland case then went on to state: “This [i.e. casting the burden of proof on the defendant to prove insanity] remains the English view today. In most of the nineteenth-century American cases, also, the defendant was required to ‘clearly’ prove insanity, and that was probably the rule followed in most states in 1895, when Davis v. United States was decided. In that case this Court, speaking through Mr. Justice Harlan, announced the rule for federal prosecutions to be that an accused is ‘entitled to an acquittal of the specific crime charged if upon all of the evidence there is reasonable doubt whether he was capable in law of committing crime.’ In reaching that conclusion, the Court observed:

‘The views we have expressed are supported by many *278 adjudications that are entitled to high respect. If such were not the fact, we might have felt obliged to accept the general doctrine announced in some of the above cases; for it is desirable that there be uniformity of rule in the administration of the criminal law in governments whose constitutions equally recognize the fundamental principles that are deemed essential for the protection of life, and liberty.’

“The decision [i.e. Davis v. United States] obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts. As such, the rule is not in question here.” (Emphasis added.)

In other words, insofar as federal criminal procedure was concerned, the United States Supreme Court in Davis v. United States, 160 U.S. 469 , 16 S. Ct. 353 , 40 L.Ed. 499 placed the burden on the prosecution to prove the defendant sane beyond a reasonable doubt. But did the fact that the United States Supreme Court laid down such a rule to regulate sanity trials in the federal courts mean the rule itself thereafter became a part of due process? I suggest that in the Leland case the United States Supreme Court held that such is not the case, when it tersely commented that the “decision obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts.”

In like manner, then, I suggest that the fact that this court initially promulgated a similar rule did not mean that the rule thus promulgated became a part of due process. Paraphrasing the language of the Leland case, our decision obviously established no constitutional doctrine, but only the rule to be followed in our state courts. In summary, I submit the following:

1. traditionally and historically due process most certainly did not preclude the enactment of a statute placing the burden of proof on the defendant to establish his insanity;

2. the fact that this court by decision adopted a rule which placed the burden of proof on the prosecution to *279 prove sanity did not mean that the rule itself was thereby injected into, and became an integral part of due process, as the decision and the rule announced therein did not establish a constitutional doctrine;

3. therefore the rule which this court thus promulgated can be changed by the legislature, and in fact it was changed in 1967, and the statute thus enacted does not violate due process, be it state or federal.

It goes without saying, though I shall say it, that we are not here concerned with the “wisdom” of the statute under consideration. Whether as a matter of policy it is preferable that the burden of proof rest on the prosecution or the defendant is in my view a matter to be debated and resolved by the legislature. The only issue to be resolved by the courts is whether our General Assembly had the power to lawfully enact into law a statute casting the burden of proof on the defendant to prove his insanity. As I see it, the 1967 General Assembly possessed such power, and it is for the reasons which I have elaborated upon above, that I now dissent. In my opinion the rule should be made absolute and the respondent judge directed to follow the statute.

Mr. Justice Kelley has authorized me to state that he joins me in this dissent.