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NGI — harmless error

By: WISCONSIN LAW JOURNAL STAFF//July 16, 2014//

NGI — harmless error

By: WISCONSIN LAW JOURNAL STAFF//July 16, 2014//

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Wisconsin Supreme Court

Criminal

NGI — harmless error

Even if it was error to direct a verdict on the NGI phase of a trial, the error is subject to harmless error review.

“First, as a general rule, a defendant is not required to present expert testimony to prove the elements of his NGI defense. State v. Leach, 124 Wis. 2d 648, 666, 370 N.W.2d 240 (1985). Ordinarily, the defendant will offer expert testimony. He may also offer testimony by lay witnesses as well as his own testimony. As a practical matter, a defendant should offer evidence to supplement his own testimony because a defendant who testifies in the responsibility phase of his trial without corroboration is likely to be viewed as self-serving inasmuch as the purpose of his defense is to escape responsibility for his already established criminal conduct. In only an exceptional case with extraordinary facts may a defendant carry his burden in the responsibility phase of a criminal trial by relying solely on his own testimony.”

“Second, a defendant is competent to testify as to his mental condition in the responsibility phase of a criminal trial. However, a lay defendant does not have an unlimited, categorical right to give opinion testimony on the issue of mental disease or defect.”

“Third, a court should normally permit a defendant to offer his evidence in the responsibility phase of a trial before the court rules on his NGI defense. By allowing the defendant an opportunity to offer all his evidence, the court ensures that any dismissal1 or directed verdict is informed by full consideration of the defendant’s position, conforms to Wis. Stat. § 805.14(1) and (3) or (4) (2009-10), and reduces the procedural grounds for appeal. There will not be many cases where the defendant’s position is so bereft of merit that the court can conclude that there is no jury question as a matter of law before the defendant presents his evidence.”

“Fourth, we conclude here that the evidence to support the defendant’s NGI defense was insufficient as a matter of law, so that any errors by the circuit court in refusing to allow the trial to proceed to the responsibility phase were harmless. We conclude that no reasonable jury would have determined that the defendant had a mental disease or defect that caused him to lack substantial capacity to understand the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

Affirmed.

2010AP1639-CR State v. Magett

Prosser, J.

Attorneys: For Appellant: Hinkel, Andrew, Madison; For Respondent: Pozorski, Anthony J., Lancaster; Pray, Eileen W., Madison

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