has been held constitutional by several courts.25 In addition, commitment of an incompetent defendant under section 3611 has been held to be not unconstitutional as denying the defendant his right to speedy trial.26

Under subsection (f) of section 3611, when the head of the facility in which a defendant is hospitalized determines that the defendant has recovered to the extent that he is competent to stand trial, such head must file a certificate so stating with the clerk of the committing court. The clerk must then send copies of the certificate to the defendant and to the attorney for the government. Upon receipt of the certificate, the court is required to order a hearing to determine the present competency of the defendant. The hearing must follow the due process requirements of subsection (d).

If the court finds by a preponderance of the evidence adduced at the hearing that the defendant has recovered to the extent that he is competent to stand trial, the court must order the release of the defendant from the facility in which he is hospitalized and set a date for the trial of the defendant or for the next stage in the criminal proceeding against the defendant. A defendant ordered released after a hearing pursuant to this subsection is subject to the pretrial release provisions of chapter 35.

Subsection (g) requires the head of the facility in which the defendant is hospitalized to submit semiannual reports to the committing court concerning the mental condition of the defendant and recommendations concerning his continued hospitalization. The head of the facility must also send copies of the report to the defendant and to the attorney for the government.

This procedure requiring semiannual reports is consistent with Federal case law. The most recent pronouncement of a Federal Court of Appeals can be found in In re Harmon,27 where the First Circuit stated that if a defendant is committed to the custody of the Attorney General pursuant to 18 U.S.C. 4246, the district court should require frequent reports on the accused's mental condition at stated intervals.

There may be some question as to the duty and authority of a court which receives a report stating that the defendant is presently competent to stand trial. The Committee intends that whenever a court receives such a report submitted pursuant to this subsection, the court is to treat the report as a certification filed pursuant to subsection (f). Accordingly, the court must order a hearing on the competency of the defendant. If, after the hearing, the court finds by a preponderance of the evidence that the defendant has recovered to such an extent that he is able to understand the proceedings against him and to assist properly in his defense, the court must order the release of the defendant from the facility in which he is hospitalized and set the date for trial of the defendant.

Subsection (h) codifies the provision in 18 U.S.C. 4244 which makes any statement made by the defendant during the course of a psychiatric examination under this section inadmissible on the issue of whether the defendant engaged in the conduct that constitutes the offense

25 Greenwood v. United States, supra note 5; Kirkwood v. Harris, 229 F. Supp. 904 (W.D. Mo. 1964); Tienter v. Harris, 222 F. Supp. 920 (W.D. Mo. 1963).

28 United States v. Davis, supra note 21; United States v. Miller, 131 F. Supp. 88 (D. Vt. 1955). 27 425 F.2d 916 (1st Cir. 1970).

Section 3612.

charged.28 This subsection augments the Fifth Amendment privilege against self-incrimination.

Subsection (i) makes it clear that a finding by the court as to the competency of the defendant to stand trial is not to prejudice the defendant on the separate issue of whether he was insane at the time of the offense. Moreover, the finding itself as to the defendant's competency is specifically made inadmissible at the trial for the underlying offense charged. This rule of evidence is similar to the limitations present in 18 U.S.C. 4244.

SECTION 3612. DETERMINATION OF THE EXISTENCE OF INSANITY AT THE TIME OF THE OFFENSE

1. In General

Section 3612 provides the procedure to be followed when a defendant files a notice of intent to rely upon the defense of insanity at the time of the offense. Included are provisions for examination of the defendant by a psychiatrist; the report of the psychiatrist; the special verdict required; and the admissibility of the defendant's statements at trial. 2. Present Federal Law

Present Federal law, other than the District of Columbia Code, contains no provision for a verdict or finding of not guilty by reason of insanity.29 The concept of a notice of an intent to raise an insanity defense was first suggested by a 1974 amendment to the Federal Rules of Criminal Procedure.30 Furthermore, there is no procedure for commitment to mental institutions of persons who obtain acquittals on the basis of insanity defenses if the basis of the acquittal can even be determined with certainty.31 Federal officials must attempt civil commitment of such persons by urging local authorities to institute commitment proceedings.32 Frequently such efforts are unsuccessful; not uncommonly this is due to lack of sufficient contacts between the acquitted defendant and a particular State for the latter to be willing to undertake care and treatment responsibility for him.33 The absence of post-acquittal arrangements for commitment is in marked contrast with procedures presently provided by chapter 313 of title 18, United States Code, for Federal commitment of persons found incompetent to stand trial and convicted prisoners who subsequently become mentally ill.34

3. Provisions of S.1, as Reported

Section 3612(a) must be read in conjunction with Rule 12.2 of the Federal Rules of Criminal Procedure which is reenacted by S. 1, as

28 See section 3612(d) on admissibility of statements made by the defendant during a psychiatric examination to determine defendant's sanity at the time of the offense; see also United States v. Malcolm, 475 F. 2d 420 (9th Cir. 1973), and cases cited therein.

29 However, the giving of an instruction permitting the jury to return a not-guiltyby-reason-of-insanity verdict is not necessarily reversible error. See United States v. McCracken, 488 F. 2d 406, 418-421 (5th Cir. 1974).

30 Rule 12.2.

31 The subject is well canvassed in United States v. McCracken, supra, note 29, at 415425, which noted that: "Time and again federal courts have decried this gaping statutory hole and have called upon Congress to take remedial action."

32 See testimony of Anthony P. Marshall, supra note 13. at 6367.

33 See Tydings, A Federal Verdict of Not Guilty by Reason of Insanity and a Subsequent Commitment Procedure, 27 Md. L. Rev. 131, 133 (1968).

34 See 18 U.S.C. 4241-4248.

reported.35 The rule provides that if a defendant intends to rely upon the defense of insanity at the time of the alleged offense, he must notify the attorney for the government and file a copy of the notice with the clerk of the court. Upon motion of the attorney for the government, the court must order the defendant to submit to a psychiatric examination as provided in this section.

Accordingly, subsection (a) provides that after the filing by the defendant of a Rule 12.2 notice, and upon motion of the attorney for the government, the court must order that the defendant be examined by at least two qualified psychiatrists. The mandatory examination is triggered by the government motion since it is the government which would dispute the insanity defense and would want an independent psychiatric evaluation of the defendant. If no such motion is made by the government, there is no requirement that the court order an examination; however, under its inherent power, the court, in an appropriate case, may order the examination. As with section 3611(a), the court must order that the defendant be examined by at least two psychiatrists. Similarly, for the purpose of the examination the court may order that the defendant be committed for a period of not longer than sixty days.

Subsection (b) of section 3612, like section 3611(b), requires each of the examining psychiatrists to file a report with the court and to send copies of the report to the defendant and the attorney for the government. The report must include the identical first three items of information required under section 3611(b). The fourth required item is different, reflecting the different procedure involved in section 3612. Here the psychiatrists must present their opinions as to diagnosis. prognosis, and as to whether the defendant was insane at the time of the offense charged. For this latter item, the psychiatrists are to utilize the section 3617(a) definition of the term "insanity" to frame their opinions; namely, whether the defendant was suffering from a mental disease or defect as a result of which he lacked the state of mind required as an element of the offense charged.38

As heretofore stated, the Federal law generally contains no provision for a verdict of not guilty by reason of insanity.39 To cure the problems that this lack creates, section 3612(c) provides that where the issue of insanity is raised, the jury is to be instructed to find, or, in the event of a non-jury trial, the court is to find, the defendant either (1) guilty; (2) not guilty; or (3) not guilty by reason of insanity.

The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty

35 See section 102.

30 See United States v. Malcolm, supra note 28.

27 See report discussion of section 3611(b) supra for an analysis of the discretion of the court with respect to the number of psychiatrists which may be ordered to examine a potentially incompetent defendant.

38 The Committee accepts the evidentiary rule which permits an expert witness to express his opinion on the ultimate jury question. Of course, in a jury trial it is the jury, and not the court or the expert witness. which must decide the ultimate issue of insanity: and the jury is free to accept or reject the testimony of any expert witness. See Feguer v. United States, 302 F. 2d 214. 242 (8th Cir.), cert. denied. 371 U.S. 872 (1962).

It should be noted that the District of Columbia Code. section 24-301(c), provides that the jury must state in its verdict if acquittal was solely on the grounds that the defendant was insane at the time of the commission of the offense. See also Criminal Jury Instructions for the District of Columbia (1972), Instructions 5.07 and 5.11.

Section 3613.

40

by reason of insanity. If the defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.41

In augmentation of the Fifth Amendment privilege against self-incrimination and in accordance with present Federal practice,+2 subsection (d) prohibits the admissibility into evidence of statements made by the defendant during the course of a psychiatric examination under section 3612 on the issue of whether the defendant engaged in the conduct charged. Of course, since the exclusion is for the defendant's benefit, he may waive it.43

The subsection specifically makes any statements made by the defendant admissible at trial on the issue of sanity even though they are inadmissible on the issue of whether the defendant engaged in the proscribed conduct. This position is in accord with State cases allowing such statements to be admitted as to insanity provided that the jury is instructed not to consider the statements with regard to the defendant's guilt." Limited admission was also approved in United States v. Trapnell,45 where it was held that statements made to the government's psychiatrist were not covered by the Fifth Amendment since they were verbal acts.

SECTION 3613. HOSPITALIZATION OF A PERSON ACQUITTED BY

1. In General

REASON OF INSANITY

Section 3613 sets out the procedure to be followed when a person is found not guilty by reason of insanity at the time of the offense. Included is a commitment provision whereby a person acquitted by reason of insanity, who is presently suffering from mental disease or defect will be committed for treatment to the custody of the Attorney General. 2. Present Federal Law

At present, there is no Federal procedure for commitment to mental institutions of persons who are acquitted by reason of insanity and who are presently dangerous.46 Federal officials can attain civil commitment of such persons only by urging local authorities to institute such proceedings. As noted above, such efforts are rarely successful largely due to a lack of sufficient contacts between the acquitted defendant and the individual State for the latter to be willing to undertake responsibility for him. The absence of post-acquittal arrangements for commitment is in marked contrast with procedures presently provided by chapter 313 of title 18, United States Code, for Federal commit

40 See also United States v. McCracken, supra note 29, at 418-421. Instruction 5.11 of the Criminal Jury Instructions for the District of Columbia (1972) states:

"If the defendant is found not guilty by reason of insanity, it becomes the duty of the court to commit him to St. Elizabeths Hospital. There will be a hearing within 50 days to determine whether the defendant is entitled to release. In that hearing the defendant has the burden of proof. The defendant will remain in custody, and will be entitled to release from custody only if the court finds by a preponderance of the evidence that he is not likely to injure himself or other persons due to mental illness."

See section 3613 of the Code for the proposed Federal procedure with respect to the hospitalization of a person acquitted by reason of insanity.

4 United States v. Brawner, 471 F. 2d 969 (D.C. Cir. 1972).

42 See United States v. Malcolm, supra note 28.

43 Ibid.

44 See People v. Schranz, 213 N.W.2d 257 (Mich. App. 1973) State v. Whitlow, 210 A.2d 763 (N.J. 1965). But see Parkin v. State, 238 S.2d 817 (Fla. 1970), cert. denied, 401 U.S. 974 (1971).

45 495 F. 2d 22, 24 (2d Cir. 1974).

46 The District of Columbia Code (1973), section 24-301 (d), provides for the automatic commitment of a person acquitted by reason of insanity.

ment of person found incompetent to stand trial and convicted prisoners who subsequently become mentally ill.*7

3. Provisions of S. 1, as Reported

47

Section 3613 of S. 1 contains eight subsections which deal with the hospitalization of a person acquitted by reason of insanity.

Subsection 3613 (a) provides that when a person is found not guilty by reason of insanity at the time of the offense charged, the court must hold a hearing to determine the present mental condition of the person. The determination which the court must make is whether the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial danger to himself or to the person or property of another.48

The most recent pronouncement of Congress in this area was the passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970.49 Under this Act, a person acquitted by reason of insanity in the District of Columbia is subject to mandatory commitment to a mental hospital with a hearing to be held within fifty days of the confinement to determine whether the person is entitled to release from custody. The decision of the court must be made within ten days of the beginning of the hearing.50

The Committee has rejected the mandatory commitment procedure of that Act and substituted in subsection (a) a more flexible procedure for instituting a hearing and possible commitment for purposes of a psychiatric examination.

Subsection (b) of section 3613 provides that, in connection with an order for a hearing filed pursuant to subsection (a), the court must order that the acquitted person be examined by at least two qualified psychiatrists designated by the court. The procedure to be followed is essentially the same as that under section 3611 and 3612.

The Committee has not included a prohibition against a psychiatrist who examined the acquitted person for purposes of the insanity defense being appointed to examine the person under this subsection. Nevertheless, there may be situations where a valid reason will exist for not appointing the same psychiatrist. This is left to the discretion of the court.

For the purpose of the examination, a sixty-day commitment may be ordered as is the case under the two preceding sections. In addition, the court may make any order reasonably necessary to secure the appearance of the person at the hearing. This may include incarceration or continued hospitalization after completion of the physchiatrists' examinations.

Subsection (c) of section 3613 requires each of the examining psychiatrists to file a report with the court and to send copies of the report to the defendant and to the attorney for the government. As with the psychiatrists' reports filed under other sections of the subchapter, the court mav order that they be filed within a certain time period. However, since in this case the person has already been aconitted the court should make an effort to order that the reports be filed

47 See 18 U.S.C. 4241-4248.

45 The Committee has intentionally included danger to the property of another as part of the criteria for insanity under this section. Clearly, danger to the public from a person who is insane need not be limited to physical violence. Overholser v. Russell, 283 F. 2d 195 (D.C. Cir. 1960).

49 J. No 91-358, 84 Stat. 590.

50 D.C. Code. section 24-301 (d).

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