Aurora Theater Shooting

Insanity defense: Frank McNulty wants to shift burden of proof from state to defendant

When a defendant pleads not guilty by reason of insanity in Colorado, the burden falls on prosecutors to prove otherwise. A bill sponsored by state Representative Frank McNulty would shift the responsibility to the defense, so that a defendant who pleads insanity would have to prove it "by clear and convincing evidence." But state public defender Doug Wilson says that what McNulty's bill aims to accomplish is unconstitutional in Colorado.

McNulty, a Highlands Ranch Republican and former House speaker, says he was inspired to submit the bill by a story he heard on the radio about the case of James Holmes, who's accused of killing twelve people and injuring seventy more by opening fire at an Aurora movie theater in July 2012. It's widely expected that Holmes will plead not guilty by reason of insanity. The radio story McNulty heard said that if that happens, prosecutors will have to prove he was sane in order to convict him of murder.

"At that moment in time, it struck me that that's inherently unfair," McNulty says.

By his count, Colorado is one of only eleven states where that's the case. In 36 others, according to, the burden of proof is on the defendant. Four states -- Kansas, Montana, Idaho and Utah -- have outlawed the insanity defense altogether. Many states toughened their laws in the wake of the acquittal of John Hinckley, who was found not guilty by reason of insanity for attempting to assassinate President Ronald Reagan in 1981.

McNulty says he's not aware of any prior attempts to change Colorado's law. "To my knowledge, this has not been a hot topic," he says. "People just accept it until there's that moment where a legislator or a citizen is struck with the inequity and unfairness of it."

But Wilson does know of a prior attempt. In 1967, the legislature amended the law to place the burden "on the defendant to prove by a preponderance of the evidence that he was insane at the time of the alleged commission of the crime." He points out that "by a preponderance of the evidence" is a lower standard than the one in McNulty's bill, which requires a defendant to prove he was insane "by clear and convincing evidence."

The law was challenged in court and the case made its way to the Colorado Supreme Court. In 1968, the high court found that the new law was unconstitutional. Shifting the burden, the justices wrote, "cannot be done either by instruction or by act of the legislature for the very simple reason that in this state our concept of due process of law prohibits it."

"I would have hoped -- but I'm disappointed they did not -- that the sponsors might have checked into the constitutionality issue before they ran a bill that has been ruled on by the Supreme Court forty years ago," Wilson says. "Unfortunately, they didn't."

Though a majority of states -- and the federal courts -- place the burden to prove insanity on the defendant, Wilson explains that in Colorado, "we have broader constitutional rights in this one area than the federal Constitution provides." Here, it's always the prosecution's job to prove a defendant's mental state at the time of the crime.

Insanity defenses are rare, and though the Holmes case is very high-profile, McNulty says his bill is "not about one specific case or one specific crime. This is much, much broader. And hopefully, we get to the end where there's a more fair outcome."

Westword has put in a call to the Colorado Criminal Defense Bar to ask its opinion on the bill and we will update this post if and when we hear back. We also called the Colorado District Attorneys' Council, which says it's reviewing the bill but doesn't yet have an opinion. Wilson says his office will oppose the bill.

House Bill 1127 has been assigned to the State, Veterans and Military Affairs Committee.

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