The Insanity Defense

The Attorneys at Cates & Garvey Law Group, PLLC are experienced in handling criminal cases involving people with mental health issues. In these cases experience counts. These cases are complicated and must be handled by an experienced attorney. Dwane Cates is certified as a specialist in criminal law by the State Bar of Arizona. He has 20+ years of experience handling Mental Health Defense cases. Please read below for a brief overview of how the Criminal Justice System treats the mentally Ill.

Arizona does not have a traditional insanity defense. You can not be found not guilty by reason of insanity. There are however three was you can use a mental health defense in Arizona.

What happens if the person is found to be incompetent to stand trail under rule 11, Arizona Rules of Criminal Procedure

First under Rule 11, Arizona Rules of Criminal Procedure, a person must be competent to stand trial. This means that a person can not be tried, convicted or sentenced while the mentally ill person is found to be incompetent. Being found incompetent means that the Defendant is unable to understand the nature and objective of the proceedings or to assist his in his or her defense because of a mental illness, defect or disability.

This Mental Health Defense requires that the Defendant be evaluated by a forensic psychologist regarding his current mental condition. If they meet the standard listed above, they will be placed in mental health treatment to determine if they can be made competent through Mental Health treatment. If the can be restored the case will begin when they are deemed to be competent. If they can not be restored the Court can dismiss the charges.

If the Court dismisses the charges they can order that the mentally Ill person be evaluated and held based on a finding that they are a danger to themselves or others.


The second way mental illness can be used as a defense in a criminal matter is to evaluate the defendants Mental Status at the time of the crime. This is done pursuant to Arizona Revised Statutes 13-502. (A.R.S. 13-502) Under this statute, the prosecution, the defense our the court can move to have the Mentally Ill Person to evaluated as to the mental status of the person at the time of the crime. Upon an initial finding that there is a good possibility that the person was incompetent at the time of the crime the Court will appoint experts to evaluate the defendant’s mental health status at the time of the crime.

In order to have a mental health defense the expert must find that there is a mental diseas or defect and that the mental disease or defect was of such magnitude that the defendant did not know what they were doing was wrong. The exact language is listed below:

13-502 . Insanity test; burden of proof; guilty except insane verdict

A. A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. A mental disease or defect constituting legal insanity is an affirmative defense. Mental disease or defect does not include disorders that result from acute voluntary intoxication or withdrawal from alcohol or drugs, character defects, psychosexual disorders or impulse control disorders. Conditions that do not constitute legal insanity include but are not limited to momentary, temporary conditions arising from the pressure of the circumstances, moral decadence, depravity or passion growing out of anger, jealousy, revenge, hatred or other motives in a person who does not suffer from a mental disease or defect or an abnormality that is manifested only by criminal conduct.

If a person is found to be Guilty Except Insane (Arizona’s version of the Insanity Defense) They can be sentenced as follows:

13-3994 . Commitment; hearing; jurisdiction; definition
A. A person who is found guilty except insane pursuant to section 13-502 shall be committed to a secure state mental health facility under the department of health services for a period of treatment.

B. If the criminal act of the person committed pursuant to subsection A of this section did not cause the death or serious physical injury of or the threat of death or serious physical injury to another person, the court shall set a hearing date within seventy-five days after the person’s commitment to determine if the person is entitled to release from confinement or if the person meets the standards for civil commitment pursuant to title 36, chapter 5. The court shall notify the medical director of the mental health facility, the attorney general, the county attorney, the victim and the attorney representing the person, if any, of the date of the hearing. Fourteen days before the hearing the director of the mental health facility shall submit to the court a report addressing the person’s mental health and dangerousness.

C. At a hearing held pursuant to subsection B of this section:
1. If the person proves by clear and convincing evidence that the person no longer suffers from a mental disease or defect and is not dangerous, the court shall order the person’s release and the person’s commitment ordered pursuant to section 13-502, subsection D shall terminate. Before determining to release a person pursuant to this paragraph, the court shall consider the entire criminal history of the person and shall not order the person’s release if the court determines that the person has a propensity to reoffend.

2. If the court finds that the person still suffers from a mental disease or defect, may present a threat of danger to self or others, has a grave, persistent or acute disability or has a propensity to reoffend, it shall order the county attorney to institute civil commitment proceedings pursuant to title 36 and the person’s commitment ordered pursuant to section 13-502, subsection D shall terminate.

D. If the court finds that the criminal act of the person committed pursuant to subsection A of this section caused the death or serious physical injury of or the threat of death or serious physical injury to another person, the court shall place the person under the jurisdiction of the psychiatric security review board. The court shall state the beginning date, length and ending date of the board’s jurisdiction over the person. The length of the board’s jurisdiction over the person is equal to the sentence the person could have received pursuant to section 13-707 or section 13-751, subsection A or the presumptive sentence the defendant could have received pursuant to section 13-702, subsection D, section 13-703, section 13-704, section 13-705, section 13-706, subsection A, section 13-710 or section 13-1406. In making this determination the court shall not consider the sentence enhancements for prior convictions under section 13-703 or 13-704. The court shall retain jurisdiction of all matters that are not specifically delegated to the psychiatric security review board for the duration of the presumptive sentence.


Many times, even though the Defendant has a sever mental health issue they do not qualify for one of the two mental health defenses available in Arizona. When this happens it is important to use a Mitigation Specialist to maximize the use of the mental health history to get the defendant a lighter sentence.

While they may not have a full mental health defense, may judges and prosecutors will look at the defendant’s mental health issues as Mitigation. The prosecutors my give a much lighter plea agreement and judges tend to give much lighter sentences if the mental health issues are presented in the proper way.


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