There is generally a presumption that criminal defendants are sane, just as there is a presumption that they are innocent. Therefore, at a minimum, a defendant claiming insanity must produce evidence that rebuts this presumption. Some states require the prosecution to thereafter prove sanity beyond a reasonable doubt or to a preponderance of evidence. 1
Post-Hinckley, many states have converted the insanity defense into an affirmative defense. Thus as discussed in , the defendant may also have the burden of persuading the trier of fact that he or she is insane to a preponderance of evidence. 2 The federal government and some other states require the defendant to prove insanity by clear and convincing evidence, which is a higher standard than preponderance of evidence. 3
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