Marzulli, J.c.c., Temporarily Assigned.
The issue is whether the question of defendant's sanity at the time of the commission of a crime is to be decided by a 10 to 2 or by a unanimous verdict of the trial jury.
N.J.S.A. 2A:163-2 provides that the issues of competency and sanity may be determined at a pretrial hearing conducted by the judge alone or with a jury specially impanelled. Aponte v. State, 30 N.J. 441 (1959). This pretrial hearing has been held to be a civil proceeding "in the nature of an inquest trying a collateral issue," State v. Gibson, 15 N.J. 384, 388 (1954). As such, a verdict "may be rendered by ten or more of the jury of 12 agreeing." State v. Gibson, supra; N.J. Const. (1947), Art. I, par. 9; N.J.S.A. 2A:80-2; R. 1:8-2(c).
N.J.S.A. 2A:163-2 contains a subsequent paragraph which provides as follows:
A defendant may raise the defense of insanity at trial even though there has been a pretrial determination of his sanity at the time of the commission of the offense. Our
Supreme Court has suggested that the issue of competency to stand trial be resolved by the judge and the question of sanity at the time of the offense be submitted to the jury at the time of the trial. Aponte v. State, 30 N.J. 455 (1959).
If this procedure is followed, the first opportunity defendant will have to raise the defense of insanity will be before the jury impanelled to try the indictment. At that time he must overcome the assumption of sanity by a preponderance of the evidence. State v. DiPaglia, 64 N.J. 288, 293 (1974).
If one is to follow the dictates of R. 1:8-9, which provides for unanimity of verdict in criminal trials, then defendant must prove his insanity at the time of the alleged offense to all of the jurors at the trial, but to only ten of the jurors at a pretrial hearing where the same issue is raised.
The problem is in attempting to differentiate between the effect of the pretrial disposition as to the question of defendant's sanity and the disposition of same at trial.
The statute provides that if a defendant were found at the pretrial to be insane at the time the offense was committed, then the charge against him would be dismissed. The judge or the jury would also determine if the underlying disease of the mind still existed and, if so, commit the defendant. State v. Maik, 60 N.J. 203, 217 (1972).
In the pretrial proceeding there has been no judicial determination that defendant did in fact commit the criminal acts. The issue of guilt never arises.
On its face it appears that the defendant is not being treated as a criminal. However, in fact defendant receives the same treatment as if he were found to have been insane at the time of the alleged offense during the trial of the indictment. At trial a defendant is actually determined to have committed the alleged offense but is acquitted if found to be insane at the time of the offense. If the jury determines the ...