Insanity Defense Amendments

7
76-2-305
77-16a-301
77-16a-304
77-16a-305
77-16a-306
0
Insanity Defense Amendments
2026 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Carol S. Moss
Senate Sponsor: Todd Weiler
LONG TITLE
General Description:
This bill modifies provisions relating to the criminal defense of not guilty by reason of
insanity.
Highlighted Provisions:
This bill:
modifies the circumstances under which a defendant may plead not guilty to a first degree
or capital felony by reason of insanity;
places the burden of proof on a defendant asserting a defense of not guilty by reason of
insanity to a first degree or capital felony charge;
modifies provisions relating to supervision, assessment, and release of a defendant
committed to the Department of Health and Human Services after being found not guilty
of a criminal offense by reason of insanity;
provides that a judge presiding over the prosecution of an individual asserting the defense
of not guilty by reason of insanity may exercise discretion in ordering the Department of
Health and Human Services to conduct a mental examination of the defendant under
certain circumstances;
defines terms; and
makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-2-305
, as last amended by Laws of Utah 2024, Chapter 177
77-16a-301
, as last amended by Laws of Utah 2023, Chapter 184
77-16a-304
, as last amended by Laws of Utah 2023, Chapter 184
77-16a-305
, as last amended by Laws of Utah 2023, Chapter 184
77-16a-306
, as last amended by Laws of Utah 2023, Chapter 184
Be it enacted by the Legislature of the state of Utah:
Section 1. Section
76-2-305
is amended to read:
76-2-305
. Mental condition -- Use as a defense -- Influence of alcohol or other
substance voluntarily consumed.
(1)
As used in this section:
(a)
(i)
"Mental condition" means a mental illness or a mental disability that
substantially impairs an individual's mental, emotional, or behavioral functioning.
(ii)
"Mental condition" does not include a mental abnormality that is manifested
solely by repeated criminal conduct, anti-social behavior, or a substance use
disorder.
(b)
"Mental disability" means an intellectual disability or a neurodevelopmental disorder
as those terms are defined in the current edition of the Diagnostic and Statistical
Manual of Mental Disorders published by the American Psychiatric Association.
(c)
(i)
"Mental illness" means the following mental disorders as described in the most
recent edition of the Diagnostic and Statistical Manual of Mental Disorders
published by the American Psychiatric Association:
(i)
(A)
schizophrenia spectrum and other psychotic disorders;
(ii)
(B)
bipolar I disorder;
(iii)
(C)
post-traumatic stress disorder; or
(iv)
(D)
other serious mental health conditions with psychotic features.
(ii)
"Mental illness" does not include:
(A)
pedophilic disorder or other paraphilic disorders;
(B)
psychopathy;
(C)
sociopathy;
(D)
antisocial personality disorder or other personality disorders; or
(E)
a diagnosis related to voluntary acute intoxication or substance use disorder.
(d)
"Wrongfulness" means legal wrongfulness or moral wrongfulness.
(2)
(a)
It is a defense to a first degree or capital felony charge that the defendant, as a
result of a mental condition, was unable to appreciate:
(i)
the nature and quality of the defendant's actions; or
(ii)
the wrongfulness of the defendant's actions.
(b)
It is a defense to a prosecution under any statute or ordinance that the defendant, as a
result of a mental condition, lacked the mental state required as an element of the
offense charged.
(b)
(c)
A mental condition is not otherwise a defense, but may be evidence in
mitigation of the penalty in a capital felony under Section
76-3-207
and may be
evidence of special mitigation reducing the level of a criminal homicide or attempted
criminal homicide offense under Section
76-5-205.5
.
(3)
A defendant asserting the defense described in Subsection
(2)(a)
has the burden of
pleading and proving by clear and convincing evidence the facts necessary to entitle the
defendant to be found not guilty under this section.
(3)
(4)
The defense defined in this section
Each defense described in Subsection
(2)

includes the defenses known as "insanity" and "diminished mental capacity."
(4)
(5)
A
person
defendant
who asserts a defense of insanity or diminished mental
capacity, and who is under the influence of voluntarily consumed, injected, or ingested
alcohol, controlled substances, or volatile substances at the time of the alleged offense is
not excused from criminal responsibility on the basis of a mental condition if the alcohol
or substance caused,
triggered,
or substantially contributed to
the mental condition.
:
(a)
the defendant's inability to appreciate, as described in Subsection
(2)(a)
:
(i)
the nature and quality of the defendant's actions; or
(ii)
the wrongfulness of the defendant's actions; or
(b)
the defendant lacking the mental state required as an element of the offense charged
as described in Subsection
(2)(b)
.
Section 2. Section
77-16a-301
is amended to read:
77-16a-301
. Mental examination of defendant.
(1)
As used in this section, "incompetent to proceed" means the same as that term is defined
in Section
77-15-2
.
(2)
No defendant may be evaluated under this section unless the defendant has first been, or
is concurrently, evaluated to determine whether the defendant is incompetent to proceed
under Chapter 15, Defendant's Competency to Proceed.
(3)
(a)
A defendant who asserts a defense described in Subsection
76-2-305(2)
shall
receive at least two examinations to investigate the defendant's mental condition.
(b)
The examinations described in Subsection
(3)(a)
may be ordered by a court as
described in this section, or conducted by another independent examiner.
(4)
A forensic psychiatrist or forensic psychologist shall conduct any examination described
in this section.
(1)
(5)
(a)
When the court receives notice that a defendant intends to claim that the
defendant is not guilty by reason of insanity or that the defendant had diminished
mental capacity, or that the defendant intends to assert special mitigation under
Subsection
76-5-205.5(2)(a)
, the court
shall
may
order the department to examine
the defendant and investigate the defendant's mental condition.
(b)
The person or organization directed by the department to conduct the examination
shall testify at the request of the court or either party in a proceeding in which the
testimony is otherwise admissible.
(c)
Pending trial, unless the court or the executive director directs otherwise, the
defendant shall be retained in the same custody or status the defendant was in at the
time the examination was ordered.
(2)
(6)
(a)
The defendant shall be available and shall fully cooperate in the examination
by the department and other independent examiners for the defense and the
prosecuting attorney.
(b)
If the defendant
who is not incompetent to proceed
fails to be available and to fully
cooperate, and that failure is established to the satisfaction of the court at a hearing
prior to trial, the defendant is barred from presenting expert testimony relating to the
defendant's defense of a mental condition at the trial of the case.
(c)
The department shall complete the examination within
30
90
days after the court's
order, and shall prepare and provide to the court prosecutor and defense counsel a
written report concerning the condition of the defendant.
(3)
(7)
Within 10 days after receipt of the report described in Subsection
(2)(c)
(6)(c)

from the

department, but not later than five days before the trial of the case, or at any
other time the court directs, the prosecuting attorney shall file and serve upon the
defendant a notice of rebuttal of the defense of a mental condition, which shall contain
the names of witnesses the prosecuting attorney proposes to call in rebuttal.
(4)
(8)
The report of another independent examiner is admissible as evidence
upon
stipulation of the prosecution and defense
.
(5)
(9)
(a)
This section does not prevent a party from producing other testimony as to
the mental condition of the defendant.
(b)
An expert witness who is not appointed by the court is not entitled to compensation
under Subsection
(7)
(11)
.
(6)
(10)
This section does not require the admission of evidence not otherwise admissible.
(7)
(11)
(a)
The department shall pay the expenses of an examination ordered by the
court under this section.
(b)
The department shall charge the county where the prosecution is commenced for
travel expenses associated with an examination incurred by a defendant.
(c)
The department shall charge the
entity commencing
county where
the prosecution
is
commenced
for an examination of a defendant charged with a violation of a
municipal or county ordinance.
Section 3. Section
77-16a-304
is amended to read:
77-16a-304
. Review after commitment.
(1)
(a)
The executive director, or the executive director's designee, shall establish a
review team of at least three
qualified staff members
licensed mental health
professionals
to review the defendant's mental condition at least every
six
12
months.
(b)
When establishing a review team under this Subsection
(1)
, the executive director, or
the executive director's designee, shall take into account best practices for assessing
the defendant's risk of violence.
(b)
(c)
The
review
team described in
Subsection
(1)(a)
this Subsection
(1)
shall
include:
(i)
at least one
forensic
psychiatrist
or forensic psychologist
; and
(ii)
if the defendant has an intellectual disability, at least one staff member who is a
designated intellectual disability professional.
(2)
If the review team described in Subsection
(1)
finds that the defendant has recovered
from the defendant's mental condition, or, that the defendant
still has a
has not
recovered from the defendant's
mental condition but does not present a substantial
danger to self or others, the executive director, or the executive director's designee, shall:
(a)
notify the court that committed the defendant that the defendant is a candidate for
discharge; and
(b)
provide the court with a report stating the facts that form the basis for the
recommendation.
(3)
(a)
The court shall conduct a hearing within
10 business

30
days after
receipt of the
executive director's, or the executive director's designee's, notification
the day on
which the court receives the notification described in Subsection
(2)
.
(b)
The court clerk shall provide notice of the date and time of the hearing to:
(i)
the prosecuting attorney;
(ii)
the defendant's attorney; and
(iii)
any victim of the crime for which the defendant was found not guilty by reason
of insanity.
(4)
(a)
The court shall order that the defendant be discharged from commitment
in
accordance with Section
77-16a-306
if the court finds that the defendant:
(i)
no longer has
has recovered from
a mental condition; or
(ii)
has
not recovered from
a mental condition, but no longer presents a substantial
danger to self or others.
(b)
The court shall order the
person
defendant
conditionally released in accordance with
Section
77-16a-305
if the court finds that the defendant:
(i)
has a mental condition;
(ii)
is
not
a substantial danger to self or others; and
(iii)
can be
controlled
adequately
controlled
if conditionally released with
proper
care, medication, supervision, and
treatment as a condition of release.
(c)
The court shall order that the commitment be continued if the court finds that the
defendant:
(i)
has not recovered from the defendant's mental condition;
(ii)
is a substantial danger to self or others; and
(iii)
cannot
be
adequately
be
controlled if conditionally released
on supervision
with proper care, medication, supervision, and treatment as a condition of release
.
(d)
(i)
Except as provided in Subsection
(4)(d)(ii)
, the
The
court may not discharge a
defendant whose mental condition is in remission as a result of medication or
hospitalization if it can be determined within reasonable medical probability that
,

without continued medication or hospitalization
,
the defendant's mental condition
will reoccur, making the defendant a substantial danger to self or others.
(ii)
Notwithstanding Subsection
(4)(d)(i)
, the defendant described in Subsection
(4)(d)(i)
may be a candidate for conditional release, in accordance with Section
77-16a-305
.
Section 4. Section
77-16a-305
is amended to read:
77-16a-305
. Conditional release.
(1)
If the review team
described in Subsection
77-16a-304(1)
finds that a defendant is not
eligible for discharge
,
in accordance with
Section
77-16a-304
Subsection
77-16a-304(4)(a)
, but that the defendant's mental condition and dangerousness can be
adequately
controlled with proper care, medication, supervision, and treatment if the
defendant is conditionally released,
as described in Subsection
77-16a-304(4)(b)
,
the
review team shall prepare a report and notify the executive director, or the executive
director's designee, that the defendant is a candidate for conditional release.
(2)
The
Upon receipt of the report described in Subsection
(1)
, the
executive director, or
the executive director's designee, shall prepare a conditional release plan
, listing
that:
(a)
describes
the type of care
, supervision, medication,
and treatment that the
individual
defendant
needs
, taking into account best practices for assessing the defendant's risk
of violence;
and
(b)
recommending
recommends
a treatment provider.
(3)
The executive director, or the executive director's designee, shall provide the court, the
defendant's attorney, and the prosecuting attorney with a copy of the report issued by the
review team under Subsection
(1)
, and the conditional release plan
described in
Subsection
(2)
.
(4)
The court shall conduct a hearing on the issue of conditional release within 30 days after
receipt of those documents
the day on which the court receives the documents described
in Subsection
(3)
.
(4)
The court may order that a defendant be conditionally released if it finds that, even
though the defendant presents a substantial danger to self or others, the defendant can be
adequately controlled with supervision and treatment that is available and provided for
in the conditional release plan.
(5)
(a)
The department may provide
treatment
the care, supervision, medication, and
treatment in accordance with the defendant's conditional release plan described in
Subsection
(2)
,
or contract with a local mental health authority or other public or
private provider to provide
the care, supervision, medication, and
treatment
for a
defendant who is conditionally released under this section
.
(b)
A local mental health authority, or other public or private provider that provides care,
supervision, medication, and treatment to a defendant who is conditionally released
under this section shall immediately notify the executive director, or the executive
director's designee, upon learning that the defendant is not compliant with the
defendant's conditional release plan.
(6)
(a)
If the department receives notice or otherwise finds that the defendant is not
compliant with the defendant's conditional release plan, the department may issue an
order temporarily revoking the defendant's conditional release and requiring the
defendant to immediately submit to the custody of the department.
(b)
(i)
Temporary revocation of a defendant's conditional release under Subsection
(6)(a)
is effective for seven business days after the day on which the defendant is
taken into the custody of the department, unless otherwise ordered by the court.
(ii)
A peace officer is authorized to take a defendant whose conditional release is
temporarily revoked under Subsection
(6)(a)
into physical custody and transport
the defendant to the custody of the department.
(c)
Upon temporary revocation of a defendant's conditional release, the executive
director, or the executive director's designee, shall immediately provide the court, the
defendant's attorney, and the prosecuting attorney with written notice of the:
(i)
temporary revocation; and
(ii)
reason for the temporary revocation.
(7)
Before the day on which the court conducts the initial hearing described in Subsection
(8)(a)
, the review team described in Subsection
77-16a-304(1)
shall review the mental
condition of the defendant and provide a report to the court that describes whether the
defendant remains a candidate for conditional release under Subsection
(1)
.
(8)
(a)
The court shall conduct an initial hearing within seven business days after the day
on which the defendant is taken into the custody of the department and reach an
initial determination regarding whether the defendant is a substantial danger to self or
others, taking into consideration:
(i)
the report described in Subsection
(7)
; and
(ii)
arguments or evidence presented by the parties.
(b)
If the court determines at the initial hearing described in Subsection
(8)(a)
that the
defendant is not a substantial danger to self or others, the defendant may be released
on the defendant's current release plan.
(c)
(i)
If the court determines at the initial hearing described in Subsection
(8)(a)
that
the defendant is a substantial danger to self or others, the court shall order:
(A)
the defendant detained; and
(B)
the executive director, or the executive director's designee, to establish a
review team that meets the requirements described in Subsection
77-16a-304(1)

to review the defendant's mental condition within 30 days after the day on
which the court sends notice of the order.
(ii)
Upon completion of the review described in Subsection
(8)(c)(i)(B)
, the
defendant shall be subject to the review and court proceedings described in
Section
77-16a-304
.
(d)
The court shall order that the defendant be conditionally released in accordance with
the defendant's conditional release plan if the court finds that the defendant can be
adequately controlled with supervision and treatment that is available and provided
for in the defendant's conditional release plan.
(9)
The court clerk shall provide notice of the initial hearing described in Subsection
(8)(a)

in accordance with Subsection
77-16a-304(3)
.
Section 5. Section
77-16a-306
is amended to read:
77-16a-306
. Continuing review -- Discharge.
(1)
(a)
Each
An
entity that provides treatment for a defendant committed to the
custody
of the
department as not guilty by reason of insanity under this part shall review the
status of each defendant at least once every
six
12
months.
(b)
If the treatment provider
described in Subsection
(1)(a)
, or a treatment provider
providing treatment to a conditionally released defendant under Section
77-16a-305
,
finds that a defendant has recovered from the defendant's mental condition
, or, if
or
that
the defendant has a mental condition
,
but
no longer presents a substantial
danger to self or others, the treatment provider shall notify the executive director of
the treatment provider's findings.
(2)
(a)
Upon receipt of
the
notification
under
described in
Subsection
(1)
(1)(b)
, the
executive director shall designate a review team, in accordance with Section
77-16a-304
, to evaluate the defendant.
(b)
If
that
the
review team
described in Subsection
(2)(a)

concurs with the treatment
provider's assessment, the executive director shall notify the court, the defendant's
attorney,
and
the prosecuting attorney
, and the victim
that the defendant is a
candidate for discharge.
(c)
The court shall conduct a hearing, in accordance with Section
77-16a-302
, within
10
business
30
days after
receipt of that notice
the day on which the court receives the
notice described in Subsection
(2)(b)
.
(3)
(a)
The court may not discharge
an individual
a defendant
whose mental condition is
in remission as a result of medication or hospitalization if it can be determined within
reasonable medical probability that
,
without continued medication or hospitalization
,

the defendant's mental condition will reoccur, making the defendant a substantial
danger to self or others.
(b)
Notwithstanding Subsection
(3)(a)
, the defendant described in Subsection
(3)(a)
may
be a candidate for conditional release in accordance with Section
77-16a-305
.
Section 6.
Effective Date.
This bill takes effect on
May 6, 2026
.
2-4-26 8:06 AM