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Mental illness is more prevalent in our society than most are willing to admit.  Often, prosecutors, law enforcement and judges are quick to dismiss a claim of insanity as a defense tactic to avoid responsibility.  However, the law is clear that the State of Florida does not hold people criminally responsible for actions when they are unable to distinguish between right and wrong because of a mental illness.

It is an affirmative defense to an offense if you were insane at the time of the offense.  The colloquial understanding of the term "insanity" is very different than the legal definition.  Although rarely used and rarely successful, in some cases, the insanity defense may be a valid, viable defense.

What is the Insanity defense?

Under the law of the State of Florida, a person is considered legally insane if:
  • he or she had a mental infirmity, disease, or defect, and
  • because of this condition
  • he or she did not know what he or she was doing or its consequences, or
  • although he or she knew what he or she was doing and its consequences, he or she did not know it was wrong. 

What if I thought what I was doing was the moral thing to do under the circumstances?

IF you believed that what you were doing was morally right, you knew what you were doing violated societal standards or that it was against the law, then you were not legally insane.

Who decides if I was insane at the time?

The jury decides whether to find you guilty, not guilty or not guilty by reason of insanity.  You have the burden of proving that you were insane at the time of the offense.  All persons are presumed to be sane.  You must prove that you were insane by clear and convincing evidence

Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue. 

How do I prove I was insane at the time of the offense?

A case involving an insanity defense usually involves a battle of the experts.  Both sides will typically retain a mental health expert, have you evaluated, and have a report prepared.  Sometimes, the two side will stipulate to insanity.  If not, both sides would present evidence through expert testimony, witnesses, and other evidence.  The prosecution will often rebut the defense by presenting any evidence it has that you tried to cover up the offense after the fact or lied about committing the offense, which they would argue shows that you knew the act was wrong.  The defense will present evidence showing that the act was done with no or little planning, evidence that you did not try to cover the act up or lie about it and other mental health history evidence.

What if I'm on medications now but I wasn't then?

The issue is what your mental health was at the time of the offense.  So, if you are on medication and any mental health issues are controlled at the time of the prosecution, you would still have a insanity defense, if you were legally insane at the time of the offense. 

What if I just lost it at the time of the offense and I didn't know what I was thinking at the time?

Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person is overcome by passion or temper.  So, if you caught your wife in bed with another man and momentarily lost all control, this would not be a valid insanity defense. 

What if I was seeing hallucinations at the time?

If you had a mental infirmity, disease, or defect and had hallucinations or delusions which caused you to honestly believe to be facts things that are not true or real, you would have a valid insanity defense.  If your act would have been lawful assuming the hallucinations or delusions were true, you would be not guilty by reason of insanity.  It is the jury who would decide whether you were not guilty by reason of insanity.

What happens if I'm found not guilty by reason of insanity?

If you are found not guilty by reason of insanity, it doesn't mean you will be released.  You still could be civilly committed to a State Hospital.  You also could be released on a case management plan.  You would be evaluated and the judge would determine, based on mental health counselor recommendations and argument and evidence presented by both the State and the Defense,  what the appropriate placement would be.

The law related to involuntary commitment of a defendant adjudicated not guilty by reason of insanity can be found in Florida Statute Section 916.15. The law relating to conditional release can be found in Florida Statute Section 916.17

If you or a loved one is charged with a criminal offense and you think you have an
Insanity defense,


904-642-3332 (Jacksonville)


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