NE Code § 29-2203 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2203 - Defense of not responsible by reason of insanity; how pleaded; burden of proof; notice before trial; examination of defendant; acquittal; further proceedings.

29-2203.  Defense of not responsible by reason of insanity; how pleaded; burden of proof; notice before trial; examination of defendant; acquittal; further proceedings.(1) Any person prosecuted for an offense may plead that he or she is not responsible by reason of insanity at the time of the offense and in such case the burden shall be upon the defendant to prove the defense of not responsible by reason of insanity by a preponderance of the evidence. No evidence offered by the defendant for the purpose of establishing his or her insanity shall be admitted in the trial of the case unless notice of intention to rely upon the insanity defense is given to the county attorney and filed with the court not later than sixty days before trial.(2) Upon the filing of the notice the court, on motion of the state, may order the defendant to be examined at a time and place designated in the order, by one or more qualified experts, appointed by the court, to inquire into the sanity or insanity of the defendant at the time of the commission of the alleged offense. The court may order that the examination be conducted at one of the regional centers or at any appropriate facility. The presence of counsel at the examination shall be within the discretion of the court. The results of such examination shall be sent to the court and to the prosecuting attorney. In misdemeanor or felony cases, the defendant may request the court to order the prosecuting attorney to permit the defendant to inspect and copy the results of such examination pursuant to the procedures set forth in sections 29-1912 to 29-1921. In the interest of justice and good cause shown the court may waive the requirements provided in this section.(3) If the trier of fact acquits the defendant on the grounds of insanity, the verdict shall reflect whether the trier acquits him or her on that ground alone or on other grounds as well. When the defendant is acquitted solely on the ground of insanity, the court shall have exclusive jurisdiction over the defendant for disposition consistent with the terms of this section and sections 29-3701 to 29-3704.(4) For purposes of this section, insanity does not include any temporary condition that was proximately caused by the voluntary ingestion, inhalation, injection, or absorption of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof.Source   Laws 1909, c. 74, § 1, p. 333;   R.S.1913, § 9139;   C.S.1922, § 10164;   C.S.1929, § 29-2204;   R.S.1943, § 29-2203;   Laws 1973, LB 501, § 1;   Laws 1976, LB 806, § 17;   Laws 1981, LB 213, § 2;   Laws 1984, LB 183, § 1;  Laws 2011, LB100, § 2. Cross References   Constitutional provisions:   Due process, see Article I, section 3, Constitution of Nebraska.  Acquittal on grounds of insanity, special procedures, see sections 29-3701 to 29-3706.  Escape from treatment facility or program, effect, see section 71-939.  Mental Health Commitment Act, Nebraska, see section 71-901. Annotations  A defendant who pleads that he or she is not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. The fact that a defendant has some form of mental illness or defect does not by itself establish insanity. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002). When a defendant pleads the defense of insanity and offers evidence on that issue, the plea is an implicit, although not legally operative, admission of the State's charges. The defense of temporarily diminished mental capacity exists separately and in addition to the defense of insanity. A trial court need not specially instruct the jury regarding the defense of diminished capacity if the court has otherwise properly instructed the jury regarding the intent which is an element of the crime charged. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999). Because this statute grants trial courts the discretion to allow or deny counsel's presence at court-ordered psychiatric or psychological examinations of criminal defendants, it implicitly requires that defense counsel be notified of such an order issued ex parte prior to its taking effect so that defense counsel can present arguments to the court regarding counsel's presence at the examination; otherwise, the court's exercise of discretion in allowing or denying the presence of counsel at the examination would be unguided. A trial court's erroneous failure to notify defense counsel of an ex parte, court-ordered examination prior to such examination is harmless when defense counsel receives a copy of the expert examiner's report as soon as the state receives such a copy, and the defense has adequate opportunities to depose the expert examiner; hence, admission of the expert examiner's testimony and the denial of defense counsel's motions for continuance and a new trial are not reversible errors. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998). Insanity is a jury question. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). This section does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). The portion of this section which places the burden upon the defendant to prove insanity by a preponderance of the evidence does not violate the due process clause of the 14th amendment to the U.S. Constitution or Nebraska's due process clause, Neb. Const. art. I, sec. 3. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989). Mental examination by state of defendant not authorized by this section unless defendant has pleaded not guilty by reason of insanity. State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984).