2. False (mostly)

3. State v. Korell, 213 Mont. 316 (1984) State v. Byers, 261 Mont. 17 (1993) Citing Leland v. Oregon, 343 US 790 – but see Treweiler’s dissent in Byers

4. Ake v. Oklahoma, 470 US 68 (1985); Smith v. McCormick, 914 F. 2 nd 1153 (9 th Cir 1990) When an indigent defendant places his mental state at issue he is constitutionally entitled to secure the assistance of a competent psychiatrist who conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense.

5. True

6. State v. Doney, 194 Mont. 22 (1981) (1) State must prove each and every element – including the mental element – of each crime charged beyond a reasonable doubt; (2) Jury must acquit if they find any reasonable doubt about any element – including the mental element; (3) No burden of proof or disproof with respect to any element – including state of mind – rests with the defendant.

7. State v. Watson, 211 Mont. 401 (1984) “The defendant is presumed to be sane. However, this presumption is rebutted and disappears whenever reliable evidence is introduced that raises a reasonable doubt as to the defendant’s sanity.” “It makes no difference from which side this evidence comes. From the moment it appears, the burden is at once upon the State to establish the resopnsibility of the defendant, beyond a reasonable doubt.”

8. True – If it interferes with his/her ability to understand and participate

9. Great Falls v. DPHHS, 2002 309 Mont. 467 (2002) State v. Bostwick, 1999 MT 237

10. “The only fair reading of the examiner’s opinion is that it is, at best, a ‘conditional’ opinion that Bostwick was competent. Indeed, the competence opinion is conditioned on the existence of at least two circumstances: (1) that the defendant is receiving competent advice from his mother; and (2) that the accommodations outlined by the examiner be made for the trial. In our view such a conditional competence opinion not only does not negate the possibility of sufficient doubt regarding fitness, it is, in and of itself, a significant indicator of doubt regarding Bostwick’s competence.” State v. Bostwick, 1999 MT 237

11. Great Falls v. DPHHS, 2002 309 Mont. 467 (2002) “A municipal court may commit a criminal defendant if it determines, in accordance with Montana law, that the defendant suffers from a mental disease or defect and lacks the fitness to proceed to trial

12. True (so long as fit)

13. State v. Korell, 213 Mont. 316 (1984) The jury determines whether the defendant committed the offense with the requisite state of mind; e.g., whether he acted purposely or knonwingly. The sentencing judge determines whether, at the time the defendant committed the offense, he was able to appreciate the criminality of the act of conform his conduct to the requirements of law.

14. State v. Watson, 211 Mont. 401 (1984) State v. Byers 261 Mont. 17 (1993)

15. State v. Cowan, 260 Mont. 510 (1993) State v. Collier, 277 Mont. 46 State v. Meckler, 345 Mont. 302 (2008)

16. True (in only 4 states)

17. State v. Byers (dissenting opinion)

18. False

19. True (But if the defendant’s sole Dx is APD do you really think it matters?)

20. State v. Wooster, 293 Mont. 195 (1999 ) “Uncertainty of diagnosis in this field and the tentativeness of professional judgment.” “Antisocial Personality Disorder must be distinguished from criminal behavior undertaken for gain that is not accompanied by the personality features characteristic of this disorder.” “Only when antisocial personality traits are inflexible, maladaptive, and persistent and cause significant functional impairment or subjective distress do they constitute Antisocial Personality Disorder.”

21. State v. Wooster, 293 Mont. 195 (1999 ) “We conclude that a person with antisocial personality disorder has a condition that is manifest by much more than ‘only... Repeated criminal or other antisocial behavior’ and that this condition is not excluded by §46- 14-101.”

22. True

23. State v. Santos*, 260 Mont. 510 (1993) State v. Sandrock* 277 Mont. 46

24. State v. Santos*, 260 Mont. 510 (1993) “Questions and expert opinions on a criminal defendant’s mental capacity are not prohibited under [§ 46-14-213] ; what the statute prohibits are expert opinions on the ultimate issue of whether the defendant actually possessed the reqquisite mental state at the time the offense was committed.”

25. The expert’s testimony concerned his expert opinion of the defendant’s ability to know right from wrong with regard to the content of his letters. The letters provided the expert examples of the defendant’s ability to know right from wrong at the time the letters were written – not an opinion regarding the defendant’s actions at the time of the offense. State v. Sandrock* 277 Mont. 46

26. False (technically)

27. “Evidence of mdd is not an affirmative defense. It is evidence of a condition that could have prevented the defendant from having the requisite state of mind. Whether the defendant actually has a mdd – and whether that disease precludes the required mental state – are questions of fact for the jury.” State v. Byers, 261 Mont 17 (1993)

28. True

29. State v. Cowan, 260 Mont. 510 (1993) § 45-5-112, MCA, establishes a ‘permissive inference’ – not a conclusive presumption. The ultimate determination is left to the finder of fact.

30. False

31. See also: State v. Tibbetts, 226 Mont. 36 (1987) (1) Burden of proof at sentencing is on the defendant; (2) Reviewing court not limited to evidence presented at trial; (3) Court has discretion. (1). State v. Doney, 636 P. 2 nd 1377 (1981)

32. State v. Cowan, 260 Mont. 510 (1993) State v. Collier, 277 Mont. 46 State v. Meckler, 345 Mont. 302 (2008)

33. State v. Gallmeier, 2009 MT 68 (1) Burden of proof in sentencing is on the defendant; (2) Court shall sentence to DPHHS only if defendant proves she was unable to appreciate / conform at time of offense; (3) the specific facts control the inquiry.

34. State v. Raty, 214 Mont. 114 (1984) Court revisited DOC sentence after defendant presented evidence that sentencing court “did not fulfill its duty to independently evaluate the defendant’s mental condition.”

35. False (Sort of)

36. State v. Boulton, 332 Mont. 538 (2006) State v. Burke, 329 Mont. 1 (2005)

37. State v. Boulton, 332 Mont. 538 (2006) (1) Revocation proceedings are civil in nature; (2) § 46-14-311 and § 46-14-312 do not apply in revocation proceedings

38. Boulton: “These conclusions do not mean that evidence of mental disease or defect is always irrelevant and inadmissible in a revocation proceeding. *** A mental disease or defect may constitute a circumstance where fundamental fairness might lead a court to continue or reimpose a probationary sentence. The court has considerable discretion to order mental evaluations and consider the impact of a defendant’s mental condition. Thus, evidence of mental disease and defect can be appropriately considered by the revoking court.