2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 704. Penal Responsibility and Fitness to Proceed › 704-402 Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense; form of verdict and judgment when finding of irresponsibility is made. §704-402 Commentary:

§704-402 Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense; form of verdict and judgment when finding of irresponsibility is made.
(1) Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense.
(2) When the defense provided for by subsection (1) is submitted to a jury, the court shall, if requested by the defendant, instruct the jury as to the consequences to the defendant of an acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.
(3) When the defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the verdict and the judgment shall so state. [L 1972, c 9, pt of §1; am L 1973, c 136, §4(a); am L 1980, c 222, §1(1); am L 1982, c 229, §1; am L 1983, c 124, §14]
COMMENTARY ON §704-402
Subsection (1) provides that the issue of physical or mental disease, disorder, or defect excluding responsibility is a defense. By the use of the word "defense" in this section the Code does not intend to place a burden of proof upon the defendant. The intent of the Code is only to foreclose the issue of the defendant's lack of responsibility due to a physical or mental disease, disorder, or defect unless some evidence raises that issue. In most cases where the issue is raised it will be the defendant's evidence which raises the issue; however it is not inconceivable that the prosecutor's evidence may raise the issue. Once evidence is introduced on this issue, the prosecution is required to prove the responsibility of the defendant beyond a reasonable doubt. If the prosecuting attorney has introduced evidence on the issue, the defendant may rely on the failure of the prosecution, once having raised the issue, to prove responsibility beyond a reasonable doubt. Subsection (1) conforms to prior Hawaii law.[1]
Subsection (3) merely provides for a special verdict on the issue of responsibility when evidence of physical or mental disease, disorder, or defect has raised that issue. A defendant may, and often does, rely on alternative defenses or theories. Since commitment or conditional release is authorized for some defendants acquitted because of physical or mental disease, disorder, or defect excluding responsibility, the necessity of a special verdict is obvious. This subsection is also in substantial conformity with prior law.2
SUPPLEMENTAL COMMENTARY ON §704-402
Subsection (2) was added by Act 136, Session Laws 1973. It should be noted that the defendant has the option; the defendant decides whether the defendant wishes the jury instructed on the consequences to the defendant of an acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.
Act 229, Session Laws 1982, amended subsection (1) to provide that the defense of physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense. Senate Standing Committee Report No. 384 states:
The bill adopts the position of the United States Supreme Court in Leland v. Oregon that making the insanity defense an affirmative defense is not unconstitutional and does not violate the Due Process Clause of the Fourteenth Amendment. The courts have indicated that insanity is not an element of any offense. Thus, the establishing of insanity as an affirmative defense does not relieve the State of its burden of proof of the elements of the offense. The Oregon Supreme Court in State v. Stockett, 278 Or. 637, 565 P.2d 739, 743 (1977) reiterated the U.S. Supreme Court: "...the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime. For this reason, Oregon's placement of the burden of proof of insanity on Leland,...did not effect an unconstitutional shift in the state's traditional burden of proof beyond a reasonable doubt of all necessary elements of the offense."
Case Notes
Instruction under subsection (2) is informational only and is not to be used to influence the decision of the jury. 58 H. 623, 574 P.2d 895 (1978).
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§704-402 Commentary:
1. See State v. Moeller, 50 Haw. 110, 443 P.2d 136 (1967) ("The law in this jurisdiction is that the defendant is presumed to have been sane at the time he committed the offense; however, if any evidence introduced raises the question of the sanity of a defendant or insanity becomes a defense, then the State is required to establish the sanity of the defendant beyond a reasonable doubt."); Territory v. Alcosiba, 36 Haw. 231, 239 (1942) ("In order to justify the submission of a defense of mental derangement to the jury, there must therefore be some evidence showing or tending to show mental derangement..."); and Territory v. Adiarte, 37 Haw. 463, 470 (1947) ("...[C]onsonant with the presumption of innocence, insanity... may arise solely from the prosecution's evidence without any evidence being adduced by the defendant.").
2. H.R.S. §711-93.