State of Iowa vs. Mark Daryl Becker

IN THE SUPREME COURT OF IOWA
No. 10–0631
Filed July 20, 2012
STATE OF IOWA,
Appellee,
vs.
MARK DARYL BECKER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Butler County, Stephen P.
Carroll, Judge.
Mark Becker appeals his conviction for first-degree murder
claiming the district court erred in refusing to give his proposed
instruction defining the elements of the insanity defense and that the
district court erred when it refused to instruct the jury of the
consequences of a verdict of not guilty by reason of insanity. DECISION
OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant State Appellate Defender, for appellant.

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Thomas J. Miller, Attorney General, Darrel L. Mullins, Scott D.
Brown, and Andrew B. Prosser, Assistant Attorneys General, Gregory M.
Lievens, County Attorney, for appellee.

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ZAGER, Justice.
On June 24, 2009, Mark Becker shot and killed Edward Thomas in
a temporary high school weight room in Parkersburg, Iowa, in front of
numerous high school students participating in summer workouts.
Becker was charged with the crime of murder in the first degree in
violation of sections 707.1 and 707.2(1) and (2) of the Iowa Code. Becker
provided notice that he would be relying on the defense of insanity to the
charge. The jury rejected the insanity defense and found Becker guilty of
first-degree murder. Following the guilty verdict, the district court
sentenced Becker to life in prison without the possibility of parole and
ordered him to pay restitution to the victim’s estate. He was also ordered
to pay restitution for his attorney and expert witness fees. Becker has
appealed his conviction and the imposition of expert witness fees.
Becker claims the jury was improperly instructed on the insanity defense
and that the jury should have been instructed regarding the
consequences of a verdict of not guilty by reason of insanity. He also
claims the restitution order for expert witness fees exceeded the statutory
limitations. We transferred the case to the court of appeals which
affirmed the conviction and restitution orders. Becker sought further
review, which we granted. For the reasons set forth below, we affirm the
district court.
I. Background Facts and Proceedings.
Becker was born June 3, 1985. His mother testified that he was
an active, friendly child but that he “started to withdraw a little bit” the
summer after his freshman year of high school. He was active in sports,
and Thomas was his high school football coach. After graduation from
high school, he attended Wartburg College in Waverly, Iowa, for one
semester. He left college and lived in various locations over the next

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several years. During this time, according to his mother’s testimony,
Becker “continued to be more inward, more depressed, [and] very
uncommunicative.”
Becker began living with his parents outside of Parkersburg in July
of 2008. In September, his parents awoke one night to Becker yelling.
He was swearing at his parents and was acting very violently. At one
point, he began hitting the basement walls with a baseball bat. His
parents called the sheriff who testified that Becker claimed he had a
metaphysical ESP connection with Thomas and that Thomas was
sending him messages that were keeping him up at night. Becker was
committed to a psychiatric unit the next day. He spent the next week in
this facility and was released with a prescription for medication that his
mother testified he took sporadically.
Over the next month, Becker began to have more frequent violent
episodes. In November, he was arrested for an assault. His mother
picked him up from jail, and on the way home, he began swearing at her
and hit her while she was driving, breaking her glasses. When she
attempted to call her husband, he grabbed her cell phone and broke it in
half. As a result, Becker was again committed and spent another week
in the hospital.
Following his discharge, Becker’s parents rented a room for him in
Waterloo. However, they were unable to afford the room, and he moved
back to their home in February 2009. Becker continued to have
difficulties, and his parents called the sheriff’s department several times.
In April, Cedar Valley Community Support Services became involved to
provide support and assistance to Becker. It helped Becker get an
apartment and a job in Waterloo. His relationship with his parents
began to improve, and he would stop by and visit with them on occasion.

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On June 20, Becker knocked at the front door of the residence of
Dwight Rogers, a Cedar Falls resident. Though Rogers did not know
Becker, Becker asked for Rogers by name. When Rogers asked Becker
who he was, Becker responded, “[Y]ou know who the F I am.” Rogers
said he did not have a good feeling about the situation, so he closed the
door and told his wife to call 911. He reopened the door and saw Becker
approaching with a baseball bat. He closed the door again and was
attempting to get Becker’s license plate number when Becker swung the
bat at Rogers’s front door, breaking the storm door. The two struggled
over the door, but Rogers was able to close it. Becker then broke a
picture window and a garage door window before attempting to drive his
car through the garage door. Becker left once law enforcement sirens
became audible. He then led law enforcement officers on a high-speed
chase that ended when he hit a deer.
Becker was arrested and taken to the Butler County Sheriff’s
Office. He was booked and interviewed and then sent to a psychiatric
unit in Waterloo for evaluation. Law enforcement requested they be
notified before Becker was released. He was evaluated on June 21, and
the next day he was diagnosed with paranoid schizophrenia and given
medication. On June 23, Becker requested he be released as he felt that
he was better. A nurse indicated to Becker’s doctor “that he seem[ed] to
be doing much better,” and following this conversation, Becker’s doctor
agreed to discharge him. Becker’s service coordinator with Cedar Valley
Community Support Services agreed to pick Becker up, and the doctor
discharged him with prescriptions for medication. The sheriff was not
notified.
Becker’s keys had been taken by the police, so the service
coordinator opened his apartment for him and made plans to get his

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prescriptions filled the next day. About 9:30 that evening, however,
Becker called his parents from a Waterloo Burger King and asked to be
picked up so he could spend the night with them. They agreed, and
Becker’s mother came to Waterloo to pick him up. At that time, she felt
that Becker seemed to be doing better than he had in quite some time.
Becker woke his father up at 4:30 a.m. on June 24, and they had
coffee together. Becker’s mother woke up around 5:00 a.m. and spoke
with him for a few minutes. Becker’s mother and father then left for
work. Later they planned to pick up his prescriptions and check with
the sheriff about getting Becker’s keys back.
Sometime that morning, Becker pried open a gun cabinet in his
parents’ basement. He took a .22 caliber revolver and practiced shooting
the gun at a birdhouse in his parents’ yard. He later told officials that
after his practice session he knew he would have to get close to Thomas
in order to be sure that he hit him. Becker then reloaded the gun and
found a spare set of keys for one his parents’ cars and drove to
Aplington. He knocked on the door of a residence and asked for Thomas
by name. He was told Thomas did not live at that house. Becker then
drove to Parkersburg where he asked a few people where he might find
Thomas. Becker told one of these people that he needed to find Thomas
because he was working with him on a tornado relief project. He was
directed to the elementary school where he was told Thomas might be
teaching driver’s education.
Upon arrival at the elementary school, Becker left the gun in the
car. He asked a family friend who worked as a custodian at the school
where Thomas was. The custodian called a custodian at the high school
who told him Thomas was in the weight room. This information was

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relayed to Becker who, after some small talk, returned to his car and
drove to the weight room.
Since the high school in Parkersburg had been damaged by a
tornado, a makeshift weight room had been set up in a bus barn. Becker
arrived at the weight room at about 7:45 a.m. Initially, he left the gun in
the car. According to witnesses, he stuck his head in the door of the bus
barn and looked around and left. Becker then retrieved the gun from his
car and put it in the pocket of his coveralls.1 He reentered the weight
room, approached Thomas, took out the gun, and shot Thomas six times
in the head, chest and leg. He proceeded to kick and stomp on Thomas,
yelling, “Fuck you, old man.” He then left the weight room screaming
that he had killed Satan and telling people to go get his carcass. Thomas
died from his injuries.
Becker drove away from the high school towards his parents’
home. Witnesses had already reported the shooting and described the
car Becker was driving. Since the car was registered to Becker’s father,
Sheriff Johnson headed to Becker’s parents’ home. As the sheriff
approached the Becker residence, he could see a vehicle approaching.
The vehicle turned in behind Johnson. The car followed Johnson into
the driveway. Johnson accelerated, turned his vehicle at an angle for
cover, and drew his weapon. As the car approached, Johnson saw an
arm come out of the window. The driver was holding a handgun out of
the window by the trigger guard. The vehicle stopped; Johnson ordered
him to drop the gun; and Becker complied. Becker stepped out of the car
and said, “I’m done, I’m done.” Becker was handcuffed and taken into
1Becker stated to a doctor who examined him afterward that he wore coveralls
because “the gun could fit easily into his pocket.”

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custody. He was interviewed by agents from the Division of Criminal
Investigations and admitted shooting Thomas.
Becker was charged with first-degree murder by trial information
on June 30, 2009. He provided notice of an insanity defense on July 13.
Trial commenced on February 12, 2010. The State presented numerous
witnesses who identified Becker as the shooter. The defense called
numerous witnesses to testify to Becker’s history of mental problems and
his behavior in the days leading up to the shooting. The defense then
called two psychiatrists who offered expert testimony that at the time of
the shootings Becker was suffering from paranoid schizophrenia, and
that, as a result, Becker did not know and understand the nature or
consequences of his actions and was incapable of distinguishing right
from wrong in relation to those actions. In rebuttal, the State called two
of its own psychiatrists. They agreed Becker suffered from paranoid
schizophrenia, but they testified that he nevertheless understood the
nature and consequences of his action and knew right from wrong in
relation to the acts he committed.
The case was submitted to the jury on February 24. The jury
deliberated for several days and sent several questions to the district
court, including one on February 26, in which they asked the judge what
would happen if Becker were found not guilty by reason of insanity. The
judge answered by referring the jurors to jury instruction 10 which told
the jurors that it was their duty to determine guilt or innocence and that
in the event of a guilty verdict, they would have nothing to do with
punishment. Instruction 10 does not refer to the consequences of a not-
guilty-by-reason-of-insanity verdict. However, in response to the jury’s
question, the court informed the jury that in the event of either a guilty
verdict or a not-guilty-by-reason-of-insanity verdict, the jury would have

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nothing to do with the consequences and that these were issues for the
court, not the jury. On March 2, the jury returned a verdict of guilty.
Becker filed a motion for a new trial on April 8, claiming, among other
things, that the jury instructions on insanity the district court provided
to the jury were inaccurate and misleading. Becker also reasserted his
claim that the court should have instructed the jury of the consequences
of a verdict of not guilty by reason of insanity. The trial court denied the
motion and on April 14 sentenced Becker to life in prison without parole.
II. Issues.
Becker appealed his conviction, claiming the district court
improperly instructed the jury when it submitted the Iowa State Bar
Association’s jury instructions defining the elements of the insanity
defense instead of the instruction Becker requested. He also claimed the
district court violated his due process rights under the Iowa Constitution
when it refused to instruct the jury as to the consequences of a not-
guilty-by-reason-of-insanity verdict. Finally, Becker claims the
restitution order, including the expert witness fees paid to Becker’s
expert witnesses, exceeded the maximum amount allowed by the statute.
The court of appeals affirmed the district court’s rulings on all three
issues.
On further review, “we retain the discretion to consider all issues
raised in the initial appeal.” State v. Doggett, 687 N.W.2d 97, 99 (Iowa
2004). In exercising that discretion, we are allowed to let the court of
appeals’ decision on any particular issue stand as the final decision on
that issue. See id.; see also State v. Johnson, 784 N.W.2d 192, 193–94 &
n.1 (Iowa 2010). On further review, we address the two issues relating to
the jury instructions and allow the court of appeals’ opinion to stand as
the final decision on the restitution issue.

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III. Standards of Review.
Becker’s claims on appeal both focus on the jury instructions. His
first claim is that the instructions given by the district court did not
accurately define insanity and that his own instruction should have been
given. “We review challenges to jury instructions for correction of errors
at law. ‘We review the related claim that the trial court should have
given the defendant’s requested instructions for an abuse of discretion.’ ”
State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010) (citations omitted); see
also In re Det. of Palmer, 691 N.W.2d 413, 416 (Iowa 2005) (“We also
review a district court’s failure to give a jury instruction for an abuse of
discretion.”). “An abuse of discretion occurs when the court’s decision is
based on a ground or reason that is clearly untenable or when the
court’s discretion is exercised to a clearly unreasonable degree.” Pexa v.
Auto Owners Ins. Co., 686 N.W.2d 150, 160 (Iowa 2004); see also Summy
v. City of Des Moines, 708 N.W.2d 333, 339 (Iowa 2006).
We employ a different standard of review when a jury instruction
implicates a constitutional right. “We review de novo a district court
decision implicating a defendant’s constitutional rights.” State v. Lyman,
776 N.W.2d 865, 873 (Iowa 2010); see also State v. Willard, 756 N.W.2d
207, 211 (Iowa 2008); State v. Nail, 743 N.W.2d 535, 538 (Iowa 2007).
Becker claims that article I, section 9 of the Iowa Constitution required
the district court to instruct the jury that if it found Becker not guilty by
reason of insanity, then he would be committed to a mental health
institute for evaluation. Becker claims that failing to give the requested
instruction violated his due process rights. Since Becker’s claim
regarding the failure to provide a consequence instruction implicates his
constitutionally based due process rights, our review is de novo. State v.
Heemstra, 721 N.W.2d 549, 553 (Iowa 2006) (“We review challenges to

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jury instructions for correction of errors at law. To the extent [a jury
instruction] error is based on constitutional grounds, our review is de
novo.” (citations omitted)).
“Error in giving or refusing to give a particular instruction
warrants reversal unless the record shows the absence of prejudice.”
Marin, 788 N.W.2d at 836. If an error in giving or refusing to give a
requested jury instruction violated a defendant’s constitutional rights,
then a “jury instruction error is presumed prejudicial unless ‘the
contrary appears beyond a reasonable doubt from a review of the whole
case.’ ” State v. Hanes, 790 N.W.2d 545, 550 n.1 (Iowa 2010) (quoting
State v. Davis, 228 N.W.2d 67, 73 (Iowa 1975), overruled in part on other
grounds by Hanes, 790 N.W.2d at 550 n.1). When the error in giving or
refusing to give a jury instruction is not of a constitutional dimension,
“we presume prejudice and reverse unless the record affirmatively
establishes there was no prejudice.” Id. at 551. Under this test,
prejudice will be found where the information given unquestionably had
a powerful and prejudicial impact on the jury or where the instruction
could reasonably have misled or misdirected the jury. Id.
IV. The Jury Instructions Regarding the Insanity Defense.
In a criminal case, the district court is required to instruct the jury
as to the law applicable to all material issues in the case. Marin, 788
N.W.2d at 837; see also Iowa R. Civ. P. 1.924 (requiring the district court
to “instruct the jury as to the law applicable to all material issues in the
case”); Iowa R. Crim. P. 2.19(5)(f) (“The rules relating to the instruction of
juries in civil cases shall apply to the trial of criminal cases.”). When
reviewing jury instructions, we consider them as a whole, not separately.
State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004) (“Jury instructions are
not considered separately; they should be considered as a whole.”).

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Instructions must correctly state the law, but they do not need to
“contain or mirror the precise language of the applicable statute.” State
v. Schuler, 774 N.W.2d 294, 298 (Iowa 2009). We have stated that “the
court is required to give a party’s requested instruction so long as it
‘ “states a correct rule of law having application to the facts of the case
and when the concept is not otherwise embodied in other
instructions.” ’ ” Marin, 788 N.W.2d at 837 (quoting Summy, 708 N.W.2d
at 340). However, we also note that “the court is not required to give any
particular form of an instruction; rather, the court must merely give
instructions that fairly state the law as applied to the facts of the case.”
Id. at 838; see also State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997),
overruled in part on other grounds by State v. Hallum, 585 N.W.2d 249,
253 (Iowa 1998), vacated on other grounds, 527 U.S. 1001, 119 S. Ct.
1335, 144 L. Ed. 2d 233 (1999) (“A trial court is . . . not required to
instruct in the language of requested instructions so long as the topic is
covered.” (citation and internal quotation marks omitted)). We will begin
our analysis of the instructions by defining the law of the defense of
insanity in Iowa and then proceed to determine whether the instructions
given, when read as a whole, fairly and correctly state the law on the
issue.
Iowa courts first considered the proper instructions for an insanity
defense in State v. Felter, 25 Iowa 67 (1868). See The Defense of Insanity
at the Time of the Act in Criminal Cases in Iowa, Note, 32 Iowa L. Rev.
714, 720 (1947). For the next century, various judicially defined tests for
insanity were used until, in 1976, the Iowa legislature codified Iowa’s

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insanity defense at what is now Iowa Code section 701.4 (2009). 1976
Iowa Acts ch. 1245(1), § 104.2 The section now reads:
A person shall not be convicted of a crime if at the time
the crime is committed the person suffers from such a
diseased or deranged condition of the mind as to render the
person incapable of knowing the nature and quality of the
act the person is committing or incapable of distinguishing
between right and wrong in relation to that act. Insanity
need not exist for any specific length of time before or after
the commission of the alleged criminal act. If the defense of
insanity is raised, the defendant must prove by a
preponderance of the evidence that the defendant at the time
of the crime suffered from such a deranged condition of the
mind as to render the defendant incapable of knowing the
nature and quality of the act the defendant was committing
or was incapable of distinguishing between right and wrong
in relation to the act.
Iowa Code § 701.4.3 As used in the statute, “the words ‘right’ and
‘wrong’ . . . should be understood in their legal and not in their moral
sense.” State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979). Becker
does not challenge the statutory definition itself; rather, he claims the
jury instructions provided by the district court did not correctly state the
law.
The district court submitted two instructions to the jury regarding
the insanity defense, instructions 34 and 35. Instruction 34 was entitled
“Insanity Defense” and read as follows:
The Defendant claims he is not criminally accountable
for his conduct by reason of insanity. A person is presumed
sane and responsible for his acts.
Not every kind or degree of mental disease or mental
disorder will excuse a criminal act. “Insane” or “insanity”
2The only amendment to the statute occurred in 1984 when the legislature
amended the statute to require the defendant to bear the burden of proving an insanity
defense by a preponderance of the evidence. See 1984 Iowa Acts ch. 1320, § 1.
3We have recognized that section 701.4 is a codification of the M’Naghten rule
for determining whether a defendant was insane at the time of the crime. State v.
Hamann, 285 N.W.2d 180, 182 (Iowa 1979).

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means such a diseased or deranged condition of the mind as
to make a person either incapable of knowing or
understanding the nature and quality of his acts, or
incapable of distinguishing right and wrong in relation to the
acts.
A person is “sane” if, at the time he committed the
criminal act, he had sufficient mental capacity to know and
understand the nature and quality of the act and had
sufficient mental capacity and reason to distinguish right
from wrong as to the particular act.
To know and understand the nature and quality of
one’s acts means a person is mentally aware of the
particular acts being done and the ordinary and probable
consequences of them.
Concerning the mental capacity of the Defendant to
distinguish between right and wrong, you are not interested
in his knowledge of moral judgments, as such, or the
rightness or wrongness of things in general. Rather, you
must determine the Defendant’s knowledge of wrongness so
far as the acts charged are concerned. This means mental
capacity to know the acts were wrong when he committed
them.
The Defendant must prove by a “preponderance of the
evidence” that he was insane at the time of the commission
of the crime.
Preponderance of the evidence is evidence that is more
convincing than opposing evidence. Preponderance of the
evidence does not depend upon the number of witnesses
testifying on one side or the other.
Insanity need not exist for any specific length of time.
Becker made no objection to instruction 34 at trial and does not claim it
was improper on appeal.
Instruction 35 was entitled “Elements of Insanity Defense” and it
read as follows:
If the State has proved all of the elements of a crime,
you should then determine if the Defendant has proved he
was insane.
In order for the Defendant to establish he was insane,
he must prove by a preponderance of the evidence either of
the following:

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1. At the time the crime was committed, the
Defendant did not have sufficient mental
capacity to know and understand the nature
and quality of the acts he is accused of; or
2. At the time the crime was committed, the
Defendant did not have the mental capacity to
tell the difference between right and wrong as to
the acts he is accused of.
If the Defendant has failed to prove either of the
elements by a preponderance of the evidence, then the
Defendant is guilty.
Both these instructions substantially mirror the Iowa State Bar
Association’s uniform jury instructions.4 See Iowa State Bar Ass’n, Iowa
Crim. Jury Instructions 200.10, .11 (2010). As we have noted in the
past, “trial courts should generally adhere to the uniform instructions.”
State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997). We will review the
district court’s decision to give instructions 34 and 35 for a correction of
errors at law. Marin, 788 N.W.2d at 836.
Before trial, Becker requested the following instruction be given in
place of instruction 35:
If the State has proved all of the elements of a crime,
you should then determine if the defendant has proved he
was insane.
In order for the defendant to establish he was insane,
he must prove by a preponderance of the evidence either of
the following:
4The only difference between the two is that Iowa Criminal Jury Instruction
200.11 has an additional paragraph that instruction 35 did not include. This
paragraph reads, “If the defendant has proved either of these elements by a
preponderance of the evidence, then the defendant is not guilty by reason of insanity.”
However, this paragraph is an incorrect statement of the law because the law requires
more than simply proving one of the two alternatives listed in section 701.4. A
defendant must also show that a diseased or deranged condition of the mind rendered
him incapable of knowing the nature and quality of the act or that it was wrong. Iowa
Code § 701.4. Thus this alteration made instruction 35 a more accurate statement of
the law than the uniform instruction.

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1. At the time the crime was committed, the
defendant suffered from such a deranged
condition of the mind as to render him incapable
of knowing the nature and quality of the acts he
is accused of; or
2. At the time the crime was committed, the
defendant suffered from such a deranged
condition of the mind as to render him incapable
of distinguishing between right and wrong in
relation to the act.
Insanity need not exist for any specific length of time
before or after the commission of the act.
If the defendant has proved either of these elements by
a preponderance of the evidence as explained in Instruction
No. ___, then the defendant is not guilty by reason of
insanity.
If the defendant has failed to prove either of the
elements by a preponderance of the evidence, then the
defendant is guilty.
We will review the district court’s decision to give instruction 35 instead
of Becker’s proposed instruction for an abuse of discretion. See Marin,
788 N.W.2d 836.
As noted above, the statute states that:
A person shall not be convicted of a crime if at the time
the crime is committed the person suffers from such a
diseased or deranged condition of the mind as to render the
person incapable of knowing the nature and quality of the
act the person is committing or incapable of distinguishing
between right and wrong in relation to that act. . . .
Iowa Code § 701.4. We note that Becker’s proposed instruction
accurately states all the elements of the insanity defense contained in
section 701.4. Furthermore, we agree that Becker’s proposed instruction
is a succinct statement of the elements of section 701.4, and it more
closely tracks the language found in that section. However, when
reviewing the jury instructions that were actually given by a district
court, the relevant inquiry is not whether the defendant’s proposed

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instruction more closely mirrors the statutory language at issue in the
case. See Schuler, 774 N.W.2d at 298–99. Instead, we are trying to
determine whether the instructions actually given by the district court
accurately portray the applicable law to the jury. Id. Though instruction
35 used in this case is not a model of clarity, for the reasons set forth
below, when read with instruction 34, it accurately and fairly stated the
applicable law.
Section 701.4 requires that in order to be found not guilty by
reason of insanity the defendant must show he was either (1) incapable
of knowing the nature and quality of the act he is committing, or
(2) incapable of distinguishing between right and wrong in relation to
that act. Iowa Code § 701.4. The defendant must also show that a
diseased or deranged condition of the mind rendered him incapable of
having the relevant knowledge for making the relevant distinction. See
id.
Instruction 34 read:
Not every kind or degree of mental illness or mental
disorder will excuse a criminal act. “Insane” or “insanity”
means such a diseased or deranged condition of the mind as
to make a person either incapable of knowing or
understanding the nature and quality of his acts, or
incapable of distinguishing right and wrong in relation to the
acts.
This paragraph asks the jury to make the same three determinations as
section 701.4 does. The first is whether the defendant suffered from “a
diseased or deranged condition of the mind.” There is overwhelming
evidence in the record that Becker suffered from a diseased or deranged
condition of the mind, and neither party argued to the jury that he did
not. The second is whether that diseased or deranged condition of the
mind made the defendant “incapable of knowing or understanding the

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nature and quality of his acts.” The third determination is whether that
diseased or deranged condition of the mind made the defendant
“incapable of distinguishing right and wrong in relation to the acts.”
The third paragraph of instruction 34 indirectly explains when a
defendant is “insane” by explaining when the defendant is “sane.” It
reads:
A person is “sane” if, at the time he committed the
criminal act, he had sufficient mental capacity to know and
understand the nature and quality of the act and had
sufficient mental capacity and reason to distinguish right
from wrong as to the particular act.
Apart from a few linguistic changes, this paragraph rephrases the
previous one, which, as noted above, tracks the Code. See Iowa Code
§ 701.4.
Paragraph three says a person is “sane” if he “had sufficient
mental capacity” to do certain things, as opposed to the statute, which
says a person is “insane” if he is “incapable” of doing those things. Iowa
Code § 701.4. “Incapable” means “lacking capacity, ability, or
qualification for the purpose or end in view.” Merriam–Webster’s
Collegiate Dictionary 628 (11th ed. 2004). Thus, a person who is
“incapable” of knowing or distinguishing would, by definition, “lack
capacity” to know or distinguish. Put another way, a person who “lacks
capacity” to know or distinguish would not “ha[ve] sufficient capacity” to
know or distinguish, which is the language used in paragraph three of
the model instruction and which is contained in instruction 34. See
Iowa State Bar Ass’n., Iowa Crim. Jury Instruction 200.10.
The inquiry into the defendant’s abilities under paragraphs two
and three of instruction 34 is the same: Under both paragraphs, the jury
must determine the defendant’s mental capacity to (1) know and

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understand the consequences of his actions, or (2) distinguish right from
wrong in relation to those actions. Under paragraph two, if the
defendant cannot perform either one of the two functions listed, and this
inability is due to a “diseased or deranged condition of the mind,” then
the defendant is insane. If the jury determines, however, that the
defendant did have the mental capacity to both know and understand
the consequences of his actions and to distinguish right from wrong in
relation to those actions, then the defendant is “sane.” The change in
phrasing does not change the task of the jury, and Becker does not
contest the propriety of instruction 34.
This brings us to instruction 35, which is entitled “Elements of
Insanity Defense.” This instruction tells the jury that if the State has
proven all the elements of the crime charged, then the jury must
determine if the defendant was insane. The instruction then states, in
relevant part,
In order for the Defendant to establish he was insane,
he must prove by a preponderance of the evidence either of
the following:
1. At the time the crime was committed, the
Defendant did not have sufficient mental
capacity to know and understand the nature
and quality of the acts he is accused of; or
2. At the time the crime was committed, the
Defendant did not have the mental capacity to
tell the difference between right and wrong as to
the acts he is accused of.
If the Defendant has failed to prove either of the
elements by a preponderance of the evidence, then the
Defendant is guilty.
Though standing alone it is an incomplete statement of the law, this
instruction does not contain any inaccurate statements of the law.

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By the time the jury reaches this instruction, it has already
determined that the State proved all the elements of the crime of murder
in the first degree beyond a reasonable doubt, and the jury is now
considering the defense of insanity. Becker focuses on the fact that,
unlike section 701.4, this instruction does not contain the term diseased
or deranged condition of the mind, but instead uses the term mental
capacity. Becker points out that “[t]he phrases ‘diseased or deranged
condition of the mind’ and ‘mental capacity’ are not synonymous.”
However, the relevant inquiry is not whether diseased or deranged
condition of the mind is synonymous with mental capacity; instead, we
must determine whether the phrase “did not have sufficient mental
capacity” or “did not have the capacity” are synonymous with the word
incapable.
The statute requires a defendant to do more than show he suffers
from a diseased or deranged condition of the mind. A defendant must
also show that a diseased or deranged condition of the mind rendered
the defendant incapable of knowing and understanding the nature and
quality of his act or knowing right from wrong in relation to that act. See
Iowa Code § 701.4. Instead of making diseased or deranged condition of
the mind synonymous with mental capacity, instruction 35 omits the
diseased or deranged condition of the mind element of section 701.4
completely. However, this omission means the instruction, if read by
itself, is incomplete, not that it is incorrect. The instruction tells the jury
that regardless of whether the defendant has shown that he has a
diseased or deranged condition of the mind, which was not disputed in
this case, the defendant must still prove by a preponderance of the
evidence that he either did not have “sufficient mental capacity,” which
as noted above has substantially the same meaning as “incapable,” to

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know and understand the nature and quality of the acts he is accused of,
or to tell the difference between right and wrong as to the acts he is
accused of. If the defendant has failed to prove either of these elements
by a preponderance of the evidence, then he is guilty.
Instruction 35 is accurate. If the defendant cannot show he did
not have “sufficient mental capacity” or “the mental capacity” to make
(i.e., he was “incapable” of making) one of the two relevant assessments
contained in instruction 35, then the presence or absence of a diseased
or deranged condition of the mind becomes completely irrelevant. See
Iowa Code § 701.4 (requiring a defendant show a diseased or deranged
condition of the mind rendered him incapable of making one of the two
assessments contained in the section). Without proving one of the two
elements listed in instruction 35, the insanity defense must fail, even if
the defendant has a diseased or deranged condition of the mind. Simply
put, instruction 35 tells the jury when the defense of insanity must fail
for want of an element of the defense.
Jury instructions must be considered as a whole. Fintel, 689
N.W.2d at 104 (“Jury instructions are not considered separately; they
should be considered as a whole.”).5 When read together, instructions
34 and 35 accurately and fairly stated the applicable law on the defense
of insanity. Accordingly, the district court did not commit legal error
when it gave instructions 34 and 35 to the jury. Marin, 788 N.W.2d 836
(“We review challenges to jury instructions for correction of errors at
law.”).
We also conclude that the district court did not abuse its
discretion by refusing to give Becker’s requested instruction in place of
5Instruction number 5 specifically advised the jury, “You must consider all of the
instructions together. No one instruction includes all of the applicable law.”

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instruction 35. Id. (“ ‘We review the related claim that the trial court
should have given the defendant’s requested instructions for an abuse of
discretion.’ ” (citation omitted)); see also Palmer, 691 N.W.2d at 416 (“We
also review a district court’s failure to give a jury instruction for an abuse
of discretion.”). Becker’s requested instruction may have stated the law
in a more coherent and concise manner than instruction 35, but jury
instructions do not need to “contain or mirror the precise language of the
applicable statute.” Schuler, 774 N.W.2d at 298. Instruction 35, when
read with instruction 34, accurately and completely stated the applicable
law. When the instructions already accurately state the law, the
defendant is not entitled to have his proposed instruction submitted to
the jury. See Marin, 788 N.W.2d at 837. Accordingly, we cannot say that
the district court’s decision to give instruction 35 instead of Becker’s
proposed instruction was clearly unreasonable. See Summy, 708 N.W.2d
at 339. Becker’s instruction was an accurate, complete and succinct
statement of section 701.4, and it would not have been improper for the
district court to have utilized this instruction. Indeed, future appeals of
this nature might be avoided by issuing an instruction like the one
Becker requested; one that more closely mirrors the language found in
section 701.4. See State v. Janssen, 239 N.W.2d 564, 567 (Iowa 1976)
(noting that a change in the uniform instruction might avoid future
appeals). However, it was not an abuse of discretion by the district court
to utilize instruction 35, in conjunction with instruction 34, instead of
Becker’s proposed instruction.
V. The District Court’s Refusal to Instruct the Jury Regarding
the Consequences of a Not-Guilty-by-Reason-of-Insanity Verdict.
On February 19, 2010, and at the jury instruction conference prior
to closing arguments, Becker requested the following jury instruction:

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Punishment not for Jury. The duty of the jury is to
determine if the defendant is guilty or not guilty.
In the event of a guilty verdict, you have nothing to do
with punishment.
If you find a verdict of not guilty by reason of insanity,
the defendant shall be immediately ordered committed to a
state mental health institute or other appropriate facility for
a complete psychiatric evaluation.
The trial court refused to give Becker’s instruction and gave the following
instruction, instruction number 10, in its place:
Duty of Jury. The duty of the Jury is to determine if
the Defendant is guilty or not guilty.
In the event of a guilty verdict, you have nothing to do
with punishment.6
On Friday, February 26, during the jury’s deliberations, the jury
foreman sent a note to the court asking, “What would happen to Mark
Becker if we find him insane?” The court met with the attorneys for the
State and Becker outside the presence of the jury and informed the
attorneys of the jury’s question. The court proposed the following
answer:
Ladies and gentlemen of the jury:
You have asked the following question: “What would
happen to Mark Becker if we find him insane?”
Answer: You need not concern yourself with the
potential consequences of a verdict of not guilty by reason of
insanity.
Please refer to Instruction Number 10. You must
decide whether he is guilty or not guilty, and, if you decide
he is guilty, you must then decide the issue of insanity.
In the event of a guilty verdict or a verdict of not guilty
by reason of insanity, you have nothing to do with the
6The wording of instruction 10 is the same wording used in uniform instruction
100.13. See Iowa State Bar Ass’n, Iowa Crim. Jury Instructions 100.13.

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consequences. Those are issues for the Court, not for the
jury.
After the court read this proposed answer to the attorneys, the State
indicated that it believed the “instruction accurately states the law.”
Becker’s counsel agreed and did not renew its request that the jury be
instructed about the consequences of a not-guilty-by-reason-of-insanity
verdict.7
After the jury received the court’s answer, deliberations continued
through the afternoon. The jury told the court they had voted four times
that day and were still deadlocked. Without objection from either party,
the court adjourned the jury’s deliberations for the weekend. On Monday
morning, the jury was instructed by the court to continue its
deliberations. The next day, the jury returned its verdict of guilty to
murder in the first degree, rejecting the insanity defense.
Becker filed a motion for a new trial on April 8, 2010. He claimed
the court erred by not giving the proposed instruction on the elements of
insanity defense and the requested consequence instruction. At the April
14 hearing on the motion for new trial and sentencing, Becker argued
that it was an error not to give his proposed consequence instruction,
“particularly in light of the question asked by the jury.” The State
countered that the instruction requested by Becker was an incomplete
statement of the consequences of a not-guilty-by-reason-of-insanity
verdict, a point the district court had made when the issue was originally
brought up before the instructions were given to the jury. The district
court then denied the motion for a new trial.
7The State has claimed that error was not preserved on this issue by counsel’s
failure to renew its request for the consequence instruction.

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At trial, Becker claimed his consequence instruction was necessary
to protect his due process rights and his right to a fair trial guaranteed
by article I, section 9 of the Iowa Constitution and the Fifth, Sixth and
Fourteenth Amendments to the Federal Constitution. On appeal, Becker
has abandoned his claims under the Federal Constitution and now
asserts that “[t]he proposed instruction was required by due process and
the right to a fair trial guaranteed by Article I, section 9 of the Iowa
Constitution.”
We begin our analysis by defining Becker’s claim and the
framework within which that claim should be evaluated. Article I,
section 9 of the Iowa Constitution guarantees its citizens the right to a
jury trial and provides that “no person shall be deprived of life, liberty, or
property, without due process of law.” “Due process requires
fundamental fairness in a judicial proceeding.” In re Det. of Morrow, 616
N.W.2d 544, 549 (Iowa 2000) (citation and internal quotation marks
omitted). In order to satisfy due process, therefore, Becker’s trial must
not have been fundamentally unfair.8 Becker claims that when a
criminal defendant pleads not guilty by reason of insanity, and requests
such a consequence instruction, the due process guarantee of a
fundamentally fair trial contained in the Iowa Constitution requires the
district court inform the jury that a defendant who is found not guilty by
reason of insanity will be “immediately ordered committed to a state
mental health institute or other appropriate facility for a complete
psychiatric evaluation.”9
8Becker’s counsel acknowledged at oral argument that Becker’s due process
claims were based on concerns of fundamental fairness.
9We take this opportunity to note two features that are not present in this case.
The first is that Becker did not request the jury be instructed as to all the consequences
of a not-guilty-by-reason-of-insanity verdict that are set forth in Iowa Rule of Criminal
Procedure 2.22(8). Becker’s proposed instruction only covered part of the first sentence

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Becker correctly points out that the United States Supreme Court
has held that federal courts are not required to give an instruction
explaining the consequences of a not-guilty-by-reason-of-insanity verdict.
See Shannon v. United States, 512 U.S. 573, 575, 114 S. Ct. 2419, 2422,
129 L. Ed. 2d 459, 464 (1994). Shannon held that the instruction was
not required “under the Insanity Defense Reform Act of 1984 or as a
matter of general federal practice.” Id. Becker also correctly notes that
the Supreme Court has never decided the issue on constitutional
grounds.10 In the absence of direct guidance from the Supreme Court on
this issue, Becker asks this court to apply the Iowa Constitution to his
claim and find that failing to give a consequence instruction violated due
process under the Iowa Constitution.
Our first step in addressing this claim is to identify the proper
framework within which to evaluate Becker’s argument. We have
_____________________________
of rule 2.22(8)(b). Other consequences were omitted, including the fact that a defendant
who is found not guilty by reason of insanity is entitled to a hearing after fifteen days
and every sixty days thereafter and that the court must order the defendant released if
it concludes that the defendant is no longer mentally ill and is no longer a danger to
himself or others. Id. r. 2.22(8). During oral argument Becker argued as an alternative
that due process required a full recitation of the provisions of rule 2.22(8). That issue is
not properly before us. However, as discussed elsewhere in this opinion, due process
does not mandate that either instruction be given simply because the defendant
requests it.
We also note that Becker’s appeal is not based on the fact that the court refused
to give a consequence instruction in response to the jury’s question. As we have
already noted, Becker’s request was made prior to jury deliberations, and Becker’s
attorney did not request the instruction be given in response to the jury’s question
regarding consequences.
10Becker also cites cases decided by lower federal courts holding that there is no
constitutional underpinning to the theory that a consequence-of-insanity instruction is
required. See Bassik v. Scully, 588 F. Supp. 895, 899 (E.D.N.Y. 1984); see also United
States ex rel. Hand v. Redman, 416 F. Supp. 1109, 1111 (D. Del. 1976). We also note
that other states have recognized that even those cases which require a consequence
instruction do not do so based on a constitutional right. See Robison v. State, 888
S.W.2d 473, 476–77 & n.4 (Tex. Crim. App. 1994). Becker has not provided any case
where a state has recognized a right to such an instruction on constitutional grounds.

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repeatedly stated that we jealously reserve the right to develop our state
constitutional provision in a fashion independent of the federal
counterpart. Zaber v. City of Dubuque, 789 N.W.2d 634, 654 (Iowa
2010). It is unclear whether Becker argues that due process requires a
consequence instruction whenever it is requested or whether his claim is
based on the particular facts and circumstances of his case.
Accordingly, we treat his appeal as both a categorical challenge to the
failure to give the instruction and a challenge to the failure to give the
instruction at his particular trial.
A. The Categorical Challenge to the Failure to Give the
Consequence Instruction. Many of Becker’s arguments in favor of a
consequence instruction are not specific to the facts of his case. Because
these general arguments could apply to any defendant asserting an
insanity defense, we will treat these arguments as a categorical challenge
to a district court’s refusal to give a consequence instruction. We now
turn to the question of whether due process requires a district court give
a consequence instruction whenever the defendant requests one.
Becker has cited a list of cases supporting the proposition “that the
Iowa Constitution provides significant protection of individual rights.”
However, only one of the cases cited by Becker, State v. Cox, 781 N.W.2d
757 (Iowa 2010), actually involved a due process claim. See Cox, 781
N.W.2d at 761, 768 (holding that the due process guarantee of “the Iowa
Constitution prohibits admission of prior bad acts evidence based solely
on general propensity”). Cox cited heavily to State v. Reyes, 744 N.W.2d
95 (Iowa 2008), and drew much of its analytical framework from that
decision. See Cox, 781 N.W.2d at 761–64. In Reyes, we stated that
when a “challenge is based on due process under the Iowa Constitution,
[but the defendant] does not offer or suggest a framework different than

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that under the United States Constitution[] . . . we consider the legal
standard under the Iowa Constitution as identical to that under the
United States Constitution.” Reyes, 744 N.W.2d at 101. We have also
stated in the past that when asking us to apply a different approach than
that used by the Supreme Court, “counsel should do more than simply
cite the correct provision of the Iowa Constitution.” State v. Effler, 769
N.W.2d 880, 895 (Iowa 2009) (Appel, J., specially concurring). Even
where a party has not provided a substantive standard independent of
federal law, we reserve the right to apply the standard presented by the
party in a fashion different than the federal cases. See State v. Oliver,
812 N.W.2d 636, 650–51 (Iowa 2012).
“Procedural due process protections act as a constraint on
government action that infringes upon an individual’s liberty interest,
such as the freedom from physical restraint.” State v. Hernandez-Lopez,
639 N.W.2d 226, 240 (Iowa 2002). “Due process [also] entitles a
defendant to certain minimal basic procedural safeguards . . . .” State v.
McMullin, 421 N.W.2d 517, 519 (Iowa 1988). We have addressed
categorical procedural due process claims in the context of a criminal
trial. In Reyes, we addressed whether a defendant’s claim that Iowa
Code section 701.11, which made evidence of prior sexual assaults
involving the same victim admissible in sexual abuse prosecutions,
violated a defendant’s procedural due process rights. 744 N.W.2d at
101–02. In that case, as in this one, the defendant specifically
referenced article I, section 9 of the Iowa Constitution, but did not
provide a framework within which to evaluate his due process claim. Id.
at 101. We stated that
[w]hen evaluating the constitutionality of rules of evidence
under due process attack, the traditional approach has
been to invalidate an evidentiary rule only if it “violates

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those ‘fundamental conceptions of justice which lie at the
base of our civil and political institutions,’ which define ‘the
community’s sense of fair play and decency.’ ” The United
States Supreme Court has declared that courts should
construe the category of evidentiary rules that violate this
rule “very narrowly.”
Id. (citations omitted). In determining the constitutionality of the statute,
we looked to historical practice as well as the evolution of our approach
to the admissibility of prior acts of sexual abuse over time. Id. at 101–
02. We ultimately held “that a defendant’s fundamental right to a fair
trial is not jeopardized by the admission of such evidence.” Id. at 102.
In State v. Cox, however, we were asked to review exactly the same
statute that was at issue in Reyes under the Iowa Constitution. Cox, 781
N.W.2d at 761. However, while Reyes involved prior sexual assaults
against the same victim, the prior assaults at issue in Cox were against
different victims. Id. at 761–62. We cited Reyes for the idea that rules of
evidence run afoul of due process when they violate fundamental
concepts of justice which define the community’s sense of fair play and
decency. Id. at 764. We addressed Cox’s argument that “Iowa courts
have generally refused to accept the admission of propensity evidence,
and therefore, Iowa Code section 701.11 violates a fundamental
conception of justice under the Iowa Constitution.” Id. We then
discussed the historical disapproval of propensity evidence of this nature
and the fundamental concerns of fairness raised by the admission of
such evidence. Id. at 764–67. We were also concerned about the impact
such evidence could have on the presumption of innocence, which is a
fundamental component of due process. Id. at 766–67. We then
concluded that “[b]ased on Iowa’s history and the legal reasoning for
prohibiting admission of propensity evidence out of fundamental

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conceptions of fairness, . . . the Iowa Constitution prohibits admission of
prior bad acts evidence based solely on general propensity.” Id. at 768.
We also note that the Supreme Court has taken a more restrained
approach when analyzing categorical due process challenges to criminal
procedures. In Medina v. California, 505 U.S. 437, 112 S. Ct. 2572, 120
L. Ed. 2d 353 (1992), the Supreme Court addressed “the proper
analytical framework for determining whether California’s allocation of
the burden of proof in competency hearings comports with due process.”
505 U.S. at 442–43, 112 S. Ct. at 2576, 120 L. Ed. 2d at 361. In that
case, the Court was reviewing a California statute that “require[d] a
defendant who alleges incompetence to stand trial to bear the burden of
proving so by a preponderance of the evidence.” Id. at 439, 112 S. Ct. at
2574, 120 L. Ed. 2d at 359. The defendant advocated for the use of a
balancing test like the one used in Mathews v. Eldridge, 424 U.S. 319, 96
S. Ct. 893, 47 L. Ed. 2d 18 (1976), to determine whether the statute
satisfied procedural due process. Id. at 442–43, 112 S. Ct. at 2576, 120
L. Ed. 2d at 361. The Mathews test would require the balancing of three
factors:
(1) the private interest that will be affected by the
government action; (2) the risk of the erroneous deprivation
of the interest, and the probable value of additional
procedures; and (3) the government interest in the
regulation, including the burdens imposed by additional
procedures.
Hernandez–Lopez, 639 N.W.2d at 240. In rejecting the use of a balancing
test, the Supreme Court stated,
In our view, the Mathews balancing test does not
provide the appropriate framework for assessing the validity
of state procedural rules which, like the one at bar, are part
of the criminal process.

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In the field of criminal law, we “have defined the
category of infractions that violate ‘fundamental fairness’
very narrowly” based on the recognition that, “[b]eyond the
specific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation.” The Bill of Rights
speaks in explicit terms to many aspects of criminal
procedure, and the expansion of those constitutional
guarantees under the open-ended rubric of the Due Process
Clause invites undue interference with both considered
legislative judgments and the careful balance that the
Constitution strikes between liberty and order. As we said in
Spencer v. Texas, 385 U.S. 554, 564, 87 S. Ct. 648, 653, 17
L. Ed. 2d 606 (1967), “it has never been thought that
[decisions under the Due Process Clause] establish this
Court as a rule-making organ for the promulgation of state
rules of criminal procedure.”
Medina, 505 U.S. at 443–44, 112 S. Ct. at 2576, 120 L. Ed. 2d at 361–62
(citations omitted).
The Medina court recognized history and contemporaneous
practice in its due process analysis. The Medina court recognized,
however, that contemporary practice has “limited relevance to the due
process inquiry.” 505 U.S. at 447, 112 S. Ct. at 2578, 120 L. Ed. 2d at
364. Further, although the Medina court canvassed history in some
detail, it did not end its analysis with historical inquiry, but next turned
to consideration of whether the challenged approach “transgresses any
recognized principle of ‘fundamental fairness.’ ” Id. at 448, 112 S. Ct. at
2578, 120 L. Ed. 2d at 365. While Medina thus discusses history and
contemporaneous practice as factors, the touchstone of due process
analysis remains fundamental fairness.
Instead of the balancing test described in Mathews, the Court felt
that in the criminal context, a narrower inquiry was more appropriate.
Specifically, the Court stated
it is normally “within the power of the State to regulate
procedures under which its laws are carried out . . .” and its
decision in this regard is not subject to proscription under
the Due Process Clause unless “it offends some principle of

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justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.”
Id. at 445, 112 S. Ct. 2577, 120 L. Ed. 2d at 363 (citations and internal
quotation marks omitted). The Court also noted that “the States have
considerable expertise in matters of criminal procedure and the criminal
process is grounded in centuries of common-law tradition, [and] it is
appropriate to exercise substantial deference to legislative judgments in
this area.” Id. at 445–46, 112 S. Ct. at 2577, 120 L. Ed. 2d at 363.
Neither party has cited to any cases that undertake a thorough
due process analysis of the categorical challenge presented in this case.
However, the Oregon Court of Appeals was asked to evaluate a related
challenge in State v. Amini, 28 P.3d 1204 (Or. Ct. App. 2001). Though
Amini addresses a due process and fair trial challenge to a statute
requiring the instruction instead of a judicial rule prohibiting it, the
methodology used is instructive. See Amini, 28 P.3d at 1206.
When a defendant pleads guilty except for insanity, Oregon law
requires the court to instruct the jury of the postacquittal consequence of
a successful not-guilty-by-reason-of-insanity verdict. Or. Rev. Stat. Ann.
§ 161.313 (West, Westlaw through 2012 Reg. Sess.). In Amini, the
defendant sought to have his convictions reversed, claiming the trial
court violated his right to a fair trial under the Oregon and United States
Constitutions when it instructed the jury according to the statute.
Amini, 28 P.3d at 1206. Initially, the court of appeals reversed, finding
Amini’s right to a trial by an impartial jury under the Oregon
Constitution had been violated. See State v. Amini, 963 P.2d 65, 72 (Or.
Ct. App. 1998), rev’d, 15 P.3d 541, 542 (Or. 2000). The Oregon Supreme
Court reversed the court of appeals decision as to the Oregon
Constitution finding

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[the] instruction had no tendency to deny defendant a trial
by a jury that is free of preconceptions about defendant’s
guilt, that is not subject to improper outside influences, and
that evaluates the evidence that is introduced at trial based
on the jury instructions that the trial court provides.
Amini, 15 P.3d at 547. The court remanded the case to the court of
appeals to consider Amini’s claims under the Sixth and Fourteenth
Amendments to the Federal Constitution. Id.
On remand, the court of appeals framed Amini’s challenge as
“whether the statute’s requirements, when complied with, necessarily
prevent a defendant from having a fair trial.” Amini, 28 P.3d at 1208.
After noting that the right to a fair trial was a fundamental one, the court
stated “[t]he question, then, becomes whether the giving of an instruction
that tells the jury about the consequences of one of the three potential
verdicts necessarily made defendant’s trial and his subsequent
conviction constitutionally infirm.” Id. at 1208–09. The court then cited
to numerous United States Supreme Court cases, including Medina, that
limit the role of the Due Process Clause in dictating criminal procedures.
Id. at 1209. The court also noted that
“[j]udges are not free in defining ‘due process’ to impose on
law enforcement officials [their] ‘personal and private
notions’ of fairness and to ‘disregard the limits that bind
judges in their judicial function.’ . . . [They] are to determine
only whether the action complained of . . . violates those
‘fundamental conceptions of justice which lie at the base of
our civil and political institutions’ and which define the
‘community’s sense of fair play and decency.’ ”
Id. (quoting Dowling v. United States, 493 U.S. 342, 353, 110 S. Ct. 668,
107 L. Ed. 2d 708, 720 (1990)). Following these precedents, the court
then looked to historical traditions and notions of fundamental fairness
that define the community sense of fair play about which there can be no
reasonable disagreement. Id. at 1210. The court then noted that there
was no historical tradition of prohibiting the instruction and that there

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was reasonable disagreement over whether such an instruction was
helpful or detrimental to a defendant. Id. at 1212. The court ultimately
concluded that even though jurors were generally not informed on the
consequences of their verdicts, a statute that departed from that
common law rule and required the court to give them just that sort of
information was not constitutionally infirm. Id. at 1212–13.
Our approach to procedural due process challenges to a particular
practice in a criminal proceeding is similar to the one taken by the
Oregon Court of Appeals, as well as the United States Supreme Court.
Each requires us to first examine subjective, open-ended considerations,
such as fair play and fundamental concepts of justice. Also, each test
takes into account more objective factors, such as historical practice and
contemporary consensus. These principles are the generally accepted
means of determining whether a particular criminal practice violates due
process. See generally 1 Wayne R. LaFave, et al, Criminal Procedure,
§ 2.7(c), 685–713 (3d ed. 2007) (describing due process methodology).
The question, then, becomes whether the district court’s refusal to
provide the jury with the proposed consequence instruction necessarily
denied Becker a fair trial and made his subsequent conviction
constitutionally infirm. We will apply the principles set forth above to
Becker’s claim that the district court’s refusal to instruct the jury that he
would be committed for evaluation purposes if he were found not guilty
by reason of insanity violated the principles of due process contained in
the Iowa Constitution.
We begin by noting that instructing the jury of the consequences of
a not-guilty-by-reason-of-insanity verdict has no historical basis in Iowa.
As Becker notes, our caselaw has consistently rejected the necessity of
such an instruction. See State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983);

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State v. Hamann, 285 N.W.2d 180, 185–86 (Iowa 1979); State v. Fetters,
562 N.W.2d 770, 775–76 (Iowa Ct. App. 1997). In Hamann, this court
was asked to answer exactly the same question Becker poses today. Like
Becker, Hamann requested an instruction on the consequences of a not-
guilty-by-reason-of-insanity verdict. Hamann, 285 N.W.2d at 185.
Though this court was divided on other issues presented by Hamann’s
appeal, we unanimously agreed that giving the instruction would have
been improper. Id. at 185–86, 190.
We recognized then that, though a majority of states refused to
require the instruction, there was a split of authority on the issue and
that “[a] number of jurisdictions have adopted what is known as the
Lyles rule.” Id. at 186 (discussing Lyles v. United States, 254 F.2d 725
(D.C. Cir. 1957), an early case requiring the instruction in the District of
Columbia). We acknowledged Lyles’s principal argument:
Lyles recognizes that jurors are aware of the results of guilty
and not guilty verdicts. But a not guilty by reason of
insanity verdict has no commonly understood meaning. The
Lyles court reasoned that “the jury has a right to know the
meaning of this possible verdict as accurately as it knows by
common knowledge the meaning of the other two possible
verdicts.”
Id. (quoting Lyles, 254 F.2d at 728). However, we noted that there were
“[t]wo principal reasons” not to adopt the Lyles reasoning. Id. “The first
is that such information is irrelevant to the jury’s proper function, the
determination of the insanity issue. The second reason is that the
information would invite a compromise verdict.” Id. (citing Wayne R.
LaFave & Austin W. Scott, Handbook on Criminal Law 316 (1972)).
We then declined to adopt the Lyles rule. Id. In doing so, we cited
to what is now Iowa Rule of Criminal Procedure 2.22(8), which describes

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postverdict consequences of a not-guilty-by-reason-of-insanity verdict.11
Id. We noted that under this rule, “Iowa law clearly states that the
disposition of a criminal defendant acquitted on a defense of insanity is a
matter for the court, not the jury, to determine.” Id. Since the jury did
not play a role in postacquittal proceedings,
an instruction to the jury regarding the post-trial disposition
of a defendant found not guilty by reason of insanity is
irrelevant to the jury’s proper function. It could only serve to
confuse the jury or invite it to consider improperly
defendant’s post-trial disposition. A jury might improperly
consider defendant’s post-trial disposition even in the
absence of an instruction on that subject. But this does not
justify our aiding and abetting it in that role. Rather, such a
possibility merely tends to illustrate the necessity of
precisely informing the jury of its proper function.
Id. We then concluded that “[t]here was no error in the trial court’s
refusal to grant defendant’s requested instruction on a defendant’s
disposition after acquittal on the ground of insanity.” Id.
In Oppelt, the trial court refused to give the following instruction
after it was requested by the defendant:
In the event of a verdict of not guilty by reason of
insanity, you have nothing to do with the commitment of the
defendant to a hospital for treatment. Iowa law specifies the
process by which the mentally ill who are determined to be
seriously mentally impaired and a danger to themselves or
others are involuntarily hospitalized. That decision rests
solely with the Court.
329 N.W.2d at 21. We adhered to the rule announced in Hamann and
held “that refusal of such an instruction is not error.” Id. The court of
appeals has also failed to reverse convictions when the district court
failed or refused to give an instruction like the one Becker requested.
11The relevant Iowa law has not changed since Hamann was decided. Under the
current version of rule 2.22(8), the disposition of a defendant acquitted on an insanity
defense is still a matter of concern for the court and not the jury. Iowa R. Crim. P.
2.22(8).

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See State v. Kehoe, 804 N.W.2d 302, 311–12 (Iowa Ct. App. 2011);
Fetters, 562 N.W.2d at 776. Our precedent has established that as a
general rule, a district court’s refusal to give a consequence instruction is
not error.
The Supreme Court has also found a trial court did not err by
refusing to instruct the jury as to the consequences of a not-guilty-by-
reason-of-insanity verdict. See Shannon, 512 U.S. at 575, 114 S. Ct. at
2422, 129 L. Ed. 2d at 464. The Court recognized some “familiar
precepts” regarding the jury’s role:
It is well established that when a jury has no
sentencing function, it should be admonished to “reach its
verdict without regard to what sentence might be imposed.”
The principle that juries are not to consider the
consequences of their verdicts is a reflection of the basic
division of labor in our legal system between judge and jury.
The jury’s function is to find the facts and to decide whether,
on those facts, the defendant is guilty of the crime charged.
The judge, by contrast, imposes sentence on the defendant
after the jury has arrived at a guilty verdict. Information
regarding the consequences of a verdict is therefore
irrelevant to the jury’s task. Moreover, providing jurors
sentencing information invites them to ponder matters that
are not within their province, distracts them from their
factfinding responsibilities, and creates a strong possibility of
confusion.
Id. at 579, 114 S. Ct. at 2424, 129 L. Ed. 2d at 466–67 (citations and
footnotes omitted). Though the challenge in Shannon was not based on
due process concerns, the reasoning adopted by the Court is still
instructive as to whether due process requires the instruction Becker
requested in this case.
Limiting the jury’s role to factfinding without regard to the
consequences is the rule, and not the exception, within our judicial
system. As we said in Hanes,
It is well-settled that juries should not be instructed
regarding the statutory penalty for the charged offenses. As

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the court of appeals has explained, “a trial has one
purpose—to seek the truth,” and “[p]enalties have nothing to
do with the factual determination that a defendant did or did
not commit a crime.” It is the legislature, and not the jury,
that determines the appropriate penalty for the crime.
“[K]nowledge of the penalty would only serve to confuse and
distract the jury from its unique and important judicial
function.”
790 N.W.2d at 549 (citations omitted). Some courts have disapproved of
analogizing the consequences of telling a jury of the consequences of a
not-guilty-by-reason-of-insanity verdict with telling the jury of the
penalties for a guilty verdict. For example, in State v. Babin, 319 So.2d
367 (La. 1975), the Louisiana Supreme Court noted,
Instructions on the post-verdict status of a not guilty by
reason of insanity acquittal are not properly analogous to
instructions on post-conviction sentencing, because as was
stated in the dissent in this case on original hearing,
instructions as to a sentence following a guilty verdict
concern only the length of the defendant’s incarceration,
whereas possible confusion in a juror’s mind as to the
ramifications of a verdict of not guilty by reason of insanity
pertains to the very nature of the defendant’s disposition,
i.e., whether or not he will be detained and the
circumstances of his detention.
319 So 2d at 380.
We recognize that confinement following a not-guilty-by-reason-of-
insanity verdict is not “punishment.” Cf. In re Det. of Garren, 620 N.W.2d
275, 280–82 (Iowa 2000) (noting that civil commitment of sexually violent
predators was for purposes of treatment, not punishment). However,
some of the principles articulated in Hanes and cases like it are still
applicable: The jury’s role is to find facts and informing them of
postverdict considerations would only confuse the jury and distract it
from its factfinding function.
Applying the analysis in Medina, and other recognized due process
analyses, we conclude that there is no historical tradition of requiring a

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consequence instruction in all cases involving a defense of not guilty by
reason of insanity. Jury instructions as to consequences of verdicts are
disfavored generally, and they have been specifically rejected in the
context of a verdict of not guilty by reason of insanity.
Having determined there is no historical basis for the instruction,
we now address whether there is a contemporary consensus as to
whether such an instruction is required. Medina characterizes
contemporary practice as having “limited relevance” in due process
analysis of substantive criminal procedures. 505 U.S. at 447, 112 S. Ct.
at 2578, 120 L. Ed. 2d at 364. We note at the outset that there is not a
consensus that due process or a fair trial requires such an instruction.
Becker has not provided us with any case in which a court has
determined that due process principles require a consequence
instruction. The cases cited by Becker actually indicate that there is no
constitutional basis for requiring such an instruction. See U.S. ex rel.
Hand v. Redman, 416 F. Supp. 1109, 1111 (D. Del. 1976). The courts
which have addressed the issue from a constitutional dimension have
determined that there is no due process violation for failing to require
such an instruction. See, e.g., Robison v. State, 888 S.W.2d 473, 476–77
& n.4 (Tex. Crim. App. 1994) (en banc) (“[W]e fail to see where the policy
decisions of our sister courts throughout the union are ever raised to the
level of a due process right or a due course of law right.”); see also State
v. Neely, 819 P.2d 249, 256–57 (N.M. 1991); State v. Stoudamire, 631
P.2d 1028, 1031 (Wash. Ct. App. 1981). Additionally, one court
specifically held the failure to give the instruction does not make a trial

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“fundamentally unfair.” Campbell v. State, 515 S.W.2d 453, 456 (Mo.
1974).12
There are many jurisdictions which require a consequence
instruction, even though the Due Process Clause is not used to justify
the requirement. Twenty-four jurisdictions require an instruction like
the one Becker requested be given.13 However, this includes a
compilation of established criminal jury instructions, court supervisory
orders, and rules of criminal procedure. About one-third of the
12Campbell acknowledged that at the time of his trial, there was no requirement
to issue a consequence instruction on the request of the accused. Campbell v. State,
515 S.W.2d 453, 456 (Mo. 1974). However, the court acknowledged that Missouri had
amended its statute to require the giving of a consequence instruction in cases involving
mental disease or defect excusing responsibility. See id.; see also Mo. Ann. Stat.
§ 552.030(6) (West, Westlaw current through 2012 Reg. Sess.). Section 552.030(6)
states in part, “At the request of the defense the jury shall be instructed by the court as
to the contents of subsection 2 of section 552.040.” Subsection 552.040(2) sets forth
the Missouri commitment procedures following an acquittal on the ground of mental
disease or defect. Id. § 552.040(2).
13Schade v. State, 512 P.2d 907, 918 (Alaska 1973); People v. Moore, 211 Cal.
Rptr. 856, 866 (Ct. App. 1985); People v. Thomson, 591 P.2d 1031, 1032 (Colo. 1979)
(en banc); State v. Wood, 545 A.2d 1026, 1034–36 (Conn. 1988); Jones v. United States,
432 A.2d 364, 374 n. 21 (D.C. 1981), aff’d, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d
694 (1983) (noting that Criminal Jury Instruction for the District of Columbia, No. 5.11
(3d ed. 1978), which is given whenever a defendant claims insanity, informs the jury of
the consequences of a not-guilty-by-reason-of-insanity verdict); Roberts v. State, 335 So.
2d 285, 288 (Fla. 1976) (adopting the Lyles rule); Spraggins v. State, 364 S.E.2d 861,
863 (Ga. 1988); State v. Amorin, 574 P.2d 895, 898–99 (Haw. 1978); Georgopulos v.
State, 735 N.E.2d 1138, 1143 (Ind. 2000) (requiring the instruction under article seven,
section four of the Indiana Constitution (the court’s supervisory responsibilities)); State
v. Alexander, 729 P.2d 1126, 1135–36 (Kan. 1986); Babin, 319 So. 2d at 380; Erdman v.
State, 553 A.2d 244, 250 (Md. 1989); Commonwealth v. Biancardi, 656 N.E.2d 1234,
1234 (Mass. 1995); Campbell, 515 S.W.2d at 456; Blake v. State, 121 P.3d 567, 575–76
(Nev. 2005) (en banc) (stating that the instruction should be given, but a failure to do so
does not warrant reversal unless prejudice is shown); State v. Lister, 448 A.2d 395, 399
(N.H. 1982) (citing Novosel v. Helgemoe, 384 A.2d 124, 130 (N.H. 1978)); State v. Krol,
344 A.2d 289, 304–05 (N.J. 1975); People v. Hays, 517 N.Y.S.2d 775, 777 (App. Div.
1987); State v. Hammonds, 224 S.E.2d 595, 603–04 (N.C. 1976); State v. George, 97
P.3d 656, 662 (Or. 2004) (en banc); Commonwealth v. Mulgrew, 380 A.2d 349, 350 (Pa.
1977); Glasscock v. State, 570 S.W.2d 354, 356 (Tenn. Crim. App. 1978); State v.
Shickles, 760 P.2d 291, 298 (Utah 1988), abrogated on other grounds by State v.
Doporto, 935 P.2d 484, 489 (Utah 1997); State v. Nuckolls, 273 S.E.2d 87, 90–91 (W. Va.
1980).

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jurisdictions which require the instruction have specific statutes
mandating the practice.14 However, a slight majority of states do not
require a consequence instruction, or else only allow the instruction
where the consequences of a not-guilty-by-reason-of-insanity verdict are
inaccurately portrayed to the jury by the prosecutor or defense counsel.15
14Wood, 545 A.2d at 1035–36 (noting that, under common law rules,
Connecticut courts did not require the instruction, see State v. Holmquist, 376 A.2d
1111, 1113–14 (Conn. 1977), but that the instruction is currently required by statute);
Spraggins, 364 S.E.2d at 863 (noting that instruction is required by statute); Cooper v.
State, 325 S.E.2d 137, 139–40 (Ga. 1985) (holding a consequence instruction is not
necessary because the consequences of the verdict “have no bearing upon the guilt or
innocence of the defendant”); Amorin, 574 P.2d at 898–99; Alexander, 729 P.2d at
1135–36 (approving of the instruction required by statute); Babin, 319 So.2d at 380
(holding “the fairly explicit dictate” of the Louisiana Criminal Code required the
instruction as opposed to earlier cases such as State v. Plaisance, 210 So.2d 323, 326–
27 (La. 1968), which held such an instruction was unnecessary); Campbell, 515 S.W.2d
at 456 (recognizing that Missouri requires an instruction by statute); People v. Bassik,
425 N.E.2d 873, 874 (N.Y. 1981); George, 97 P.3d at 662; Glasscock, 570 S.W.2d at
356.
15Tankersley v. State, 724 So.2d 557, 563–64 (Ala. Crim. App. 1998) (requiring
the instruction only if the jury has been given the impression that the defendant would
go free if acquitted by reason of insanity); State v. Moody, 94 P.3d 1119, 1164 (Ariz.
2004) (en banc); Burns v. State, 913 S.W.2d 789, 791 (Ark. 1996); Aizupitis v. State, 699
A.2d 1092, 1094–95 (Del. 1997) (“This Court has decided to adhere to Delaware’s well-
established precedents which do not require the trial court to give an instruction to the
jury on the effect of a verdict of NGRI [not guilty by reason of insanity].”); State v.
Gratiot, 663 P.2d 1084, 1086–88 (Idaho 1983); People v. McDonald, 769 N.E.2d 1008,
1020 (Ill. App. Ct. 2002); Oppelt, 329 N.W.2d at 20–21; Payne v. Commonwealth, 623
S.W.2d 867, 870 (Ky. 1981) (“The main function of the jury is to determine guilt or
innocence. The constitutional right to a trial by jury is limited to that determination.
The consideration of future consequences such as treatment, civil commitment,
probation, shock probation, and parole have no place in the jury’s finding of fact and
may serve to distort it. For that reason, we now hold that neither the prosecutor,
defense counsel, nor the court may make any comment about the consequences of a
particular verdict at any time during a criminal trial.”); State v. Okie, 987 A.2d 495,
497–500 (Me. 2010); People v. Goad, 364 N.W.2d 584, 589–90 (Mich. 1984) (not
requiring the instruction because it would be impossible to fully explain the
“consequences” of an NGRI verdict because they are contingent on future events); State
v. Bott, 246 N.W.2d 48, 52–53 (Minn. 1976); Emanuel v. State, 412 So.2d 1187, 1190
(Miss. 1982); State v. Buckman, 630 P.2d 743, 748 (Mont. 1981); State v. Ryan, 444
N.W.2d 610, 631–32 (Neb. 1989); Neely, 819 P.2d at 256–57(due process did not require
a consequence instruction); State v. Huber, 361 N.W.2d 236, 238–39 (N.D. 1985); State
v. Rogers, 478 N.E.2d 984, 992 (Ohio 1985), judgment vacated on other grounds, 474
U.S. 1002, 106 S. Ct. 518, 88 L. Ed. 2d 452 (1985); Nauni v. State, 670 P.2d 126, 134
(Okla. Crim. App. 1983); State v. Arpin, 410 A.2d 1340, 1352 (R.I. 1980); State v. Huiett,
246 S.E.2d 862, 864 (S.C. 1978) (allowing a curative instruction only); State v. Martin,

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Becker has not argued that this occurred in this case, and there is
nothing in the record to indicate this occurred. This split of authority,
which was recognized in Amini and many other subsequent cases, weighs
against a determination that a consequence instruction is required by
due process. However, the Supreme Court has noted that there is a
difference between instructions that are “universally condemned” and
those that are constitutionally defective. Cupp v. Naughten, 414 U.S.
141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368, 373 (1973) (“Before a
federal court may overturn a conviction resulting from a state trial in
which [a particular instruction] was used, it must be established not
merely that the instruction is undesirable, erroneous, or even
‘universally condemned,’ but that it violated some right which was
guaranteed to the defendant by the Fourteenth Amendment.”).
We again note that no state or federal court has found the giving or
not giving of a consequence instruction violates due process. Since the
instruction at issue in this case has not garnered the support of a
majority of jurisdictions, we cannot say that there is a community
consensus on this issue such that due process mandates the instruction
_____________________________
683 N.W.2d 399, 407 (S.D. 2004); Robison, 888 S.W.2d at 476–77; State v. Percy, 507
A.2d 955, 957–58 (Vt. 1986) (discussing and reaffirming the Vermont Supreme Court’s
holding in State v. Smith, 396 A.2d 126, 129 (Vt. 1978), to refuse, as a general rule, to
require the instruction); Kitze v. Commonwealth, 435 S.E.2d 583, 586 (Va. 1993)
(holding that failure to give a curative instruction if the prosecution made incorrect
statements regarding the consequences of an insanity acquittal can result in the case
being overturned); Spruill v. Commonwealth, 271 S.E.2d 419, 426 (Va. 1980) (holding
that a consequence instruction was properly refused); State v. McDonald, 571 P.2d 930,
938 (Wash. 1977) (en banc), overruled on other grounds by State v. Sommerville, 760
P.2d 932, 936 (Wash. 1988); Stoudamire, 631 P.2d at 1031 (rejecting a due process and
fundamental fairness argument and continuing to hold the instruction is unnecessary
for the reasons set forth in McDonald); Haynes v. State, 186 P.3d 1204, 1210–12 (Wyo.
2008) (noting that a prosecutor’s question regarding the consequences of a not-guilty-
by-reason-of-insanity verdict was “highly improper” but concluding that reversal was
unwarranted in light of the trial court’s instruction that the disposition of the defendant
was of “no concern to the jury”); Lonquest v. State, 495 P.2d 575, 584 (Wyo. 1972).

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be given. At least one commentator has stated that informing the jury of
the consequence is “the better view.” 1 Wayne R. LaFave, Substantive
Criminal Law § 8.3(d), at 607 (2d ed. 2003). LaFave agrees that many
jurisdictions do not require an instruction and notes that “[t]he
questionable explanation for [the majority] position is that such an
instruction would distract the jury from the insanity issue and would
invite compromise verdicts.” Id. However “questionable” this
explanation might be, it has nevertheless garnered the support of a
number of courts, including our own. See Hamann, 285 N.W.2d at 186.
We also note that there are many other commentators,
researchers, academics, and law students who believe the best practice
is to give the instruction whenever it is requested by the defendant. See,
e.g., 1 Wayne R. LaFave, Substantive Criminal Law, § 8.3(d), at 607 (“The
better view is [that the instruction should be given], for, as explained in
Lyles v. United States, it does not make sense that a jury should be
presented with three verdict choices (guilty, not guilty, and not guilty by
reason of insanity) but know the consequences of only the first two.”
(footnotes omitted)); see also ABA Standards for Criminal Justice § 7–6.8,
commentary (2d ed. 1986); Christopher J. Rauscher, “I Did Not Want a
Mad Dog Released”—the Results of Imperfect Ignorance: Lack of Jury
Instructions Regarding the Consequences of an Insanity Verdict in State v.
Okie, 63 Me. L. Rev. 593, 613 (2011) (arguing the Maine Supreme Court
should have “allowed the instruction because ‘it can do some good and it
can never do any harm.’ ” (internal citation omitted)). Becker has
provided us with one such note. Masha Bach, Note, The Not Guilty by
Reason of Insanity Verdict: Should Juries Be Informed of Its
Consequences?, 16 Whittier L. Rev. 645, 646 (1995). There have been
many studies done on jurors’ often mistaken attitudes towards the

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insanity defense in general. See, e.g., Eric Silver et al., Demythologizing
Inaccurate Perceptions of the Insanity Defense, 18 Law & Hum. Behav.
63, 68 (Feb. 1994) (“[T]he public overestimates the extent to which
insanity acquittees are released upon acquittal and underestimates the
extent to which they are hospitalized as well as the length of confinement
of insanity acquittees who are sent to mental hospitals.”). Jurors’
refusals to follow the directions given to them by the judge have also
been explored. Jennifer L. Skeem, et al., Venirepersons’s Attitudes
Toward the Insanity Defense: Developing, Refining, and Validating a
Scale, 28 Law & Hum. Behav. 623, 625 (Dec. 2004) (noting that in one
study jurors who were “told to use their own ‘best lights’ to decide the
case produce verdict patterns similar to those of mock jurors who receive
various insanity test instructions”). Clearly, there are many policy
concerns implicated by consequence jury instructions and the insanity
defense.
Some jurisdictions which require a consequence instruction have
acknowledged that their decision to require the instruction is guided by
policy considerations. See Erdman v. State, 553 A.2d 244, 250 (Md.
1989) (“We are guided, as was the ABA, by common sense and policy
considerations rather than by a doctrine outmoded by our present law.”);
see also ABA Standards for Criminal Justice § 7–6.8, commentary
(favoring the giving of a consequence instruction, but noting that
because of “the absence of solid empirical data supporting either view,
common sense and policy considerations must provide guidance.”
(footnote omitted)). While there are policy arguments that favor
informing jurors of the consequences of a not-guilty-by-reason-of-
insanity verdict when requested by the defendant, as noted above, there
are also policy reasons to refuse to give a consequence instruction.

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However, good public policy is a far more malleable standard than due
process. Thus, in evaluating Becker’s claim that refusal to give the
requested instruction violated his due process rights, we are not required
to determine whether the general practice of not giving the instruction is
the best policy; we need only be assured that failure to give the
instruction is not constitutionally infirm. Debates as to which policy is
best, as opposed to whether a practice is constitutionally acceptable, are
better left in the province of the legislature and the rulemaking process.
See Hawkeye Foodservice Distrib., Inc. v. Iowa Educators Corp., 812
N.W.2d 600, 608 (Iowa 2012) (noting that the rulemaking “process
permits policy considerations to be raised, studied, and argued in the
legal community and the community at large” (citation and internal
quotation marks omitted)). Our legislature has not seen fit to enact a
statute implementing this policy. See, e.g., Mo. Ann. Stat. § 552.030(6)
(West, Westlaw current through 2012 Reg. Sess.) (“At the request of the
defense the jury shall be instructed by the court as to the [commitment
procedures following an acquittal on the ground of mental disease or
defect].”).16 By leaving the decision to require a consequence instruction
in the hands of the legislative or rulemaking processes, we ensure that
the law can be adapted as new research on the issue becomes available.
The Delaware Supreme Court noted,
This court is cognizant that the common law must not
remain static and that our nation’s constitutional forms of
democracy have entrusted the judiciary with developing that
body of jurisprudence. Conversely, the decision to make the
16For other examples of guidance from the legislature regarding jury
instructions, see Iowa Code sections 668.3(5) (requiring the court to instruct the jury as
to the effects of its findings in a comparative fault action) and 709.6 (“No instruction
shall be given in a trial for sexual abuse cautioning the jury to use a different standard
relating to a victim’s testimony than that of any other witness to that offense or any
other offense.”).

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paradigm shift that is caused by overruling established
common-law principles must be tempered by judicial
restraint, with deference to the doctrine of stare decisis and
its role in perpetuating stability under the rule of law.
Aizupitis v. State, 699 A.2d 1092, 1094 (Del. 1997) (citations omitted). As
Becker’s arguments are not sufficiently persuasive to justify overruling
our prior cases, we will adhere to our well-established precedents which,
as a general rule, do not require the district court to give an instruction
to the jury on the consequences of a verdict of not guilty by reason of
insanity. See Hamann, 285 N.W.2d at 185–86. Due process does not
require a district court to give a consequence instruction simply because
the defendant requests it.
B. The Request for the Instruction Based on the Totality of
the Circumstances at Becker’s Trial. Some of Becker’s due process
arguments emphasize the specific facts of his case. Therefore, we will
also examine whether, based on the specific facts and circumstances of
Becker’s case, a consequence instruction was required by due process.
In the past, we have employed a totality-of-the-circumstances test
to evaluate due process claims, even though we have not labeled the test
as such. In State v. McMullin, 421 N.W.2d 517 (Iowa 1988), we
addressed a defendant’s claim that placing “the portion of the insanity
instruction that told the jury to consider the insanity defense before it
considered defendant’s guilt or innocence of the crimes charged” violated
procedural due process. 421 N.W.2d at 518. We agreed with the
defendant that the jury instruction was faulty and
present[ed] a risk that a jury, upon finding that a defendant
is insane, may return a verdict of not guilty by reason of
insanity without giving proper consideration to whether the
defendant is entitled to a verdict of not guilty by reason of
the State’s failure to prove its case.

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Id. at 518–19. We then turned to the question of whether the faulty
instruction denied the defendant due process of law under the
Fourteenth Amendment of the Federal Constitution. Id. at 519.
While due process allows “a state’s legislative body to define
criminal conduct and to create procedures by which the criminal laws
will be enforced in the courts,” it would not allow a state to shift the
burden of disproving an element of the crime charged to the defendant.
Id. The true object of the due process inquiry in that case was “whether
the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Id. at 520 (citation and
internal quotation marks omitted). We noted that “the instructions
repeatedly set out that the State must prove each element by evidence
beyond a reasonable doubt.” Id. We concluded that placing the insanity
instruction before the instructions regarding guilt and innocence, though
erroneous, did not shift the burden of proof to the defendant and
therefore did not violate due process. Id. Thus our determination of
whether a due process violation occurred was based on all of the
instructions given at trial, as opposed to whether a single faulty
instruction was given.
In considering due process challenges to jury instructions in
individual cases, the Supreme Court has also employed a totality-of-the-
circumstances test. For instance, in Kentucky v. Whorton, 441 U.S. 786,
99 S. Ct. 2088, 60 L. Ed. 2d 640 (1979), the Supreme Court used a
totality-of-the-circumstances analysis—considering “all instructions to
the jury, the arguments of counsel, whether the weight of the evidence
was overwhelming, and other relevant factors”—to determine whether the
defendant received a constitutionally fair trial when the court refused to
give a requested jury instruction on the presumption of innocence in a

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criminal proceeding. 441 U.S. at 789, 99 S. Ct. at 2090, 60 L. Ed. 2d at
643. The approach to evaluating jury instructions under due process
was summarized in Delo v. Lashley, 507 U.S. 272, 113 S. Ct. 1222, 122
L. Ed. 2d 620 (1993), where the Supreme Court rejected a due process
challenge based upon the failure of the trial court to give a requested
instruction concerning the petitioner’s alleged lack of significant history
of prior criminal activity in the punishment phase of a capital case. The
Supreme Court stated:
An instruction is constitutionally required only when, in light
of the totality of the circumstances, there is a genuine
danger that the jury will convict based on something other
than the State’s lawful evidence, proved beyond a reasonable
doubt.
Delo, 507 U.S. at 278, 113 S. Ct. at 1226, 122 L. Ed. 2d at 628 (citation
and internal quotation marks omitted).
Most importantly, the totality-of-the-circumstances test was
applied in a jury instruction case in Simmons v. South Carolina, 512 U.S.
154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994). In this case, the
Supreme Court considered whether the failure to give a jury instruction
that the defendant was ineligible for parole violated due process where
the state raised the specter of the defendant’s future dangerousness in
the penalty phase of a capital trial. Simmons, 512 U.S. at 156, 165, 114
S. Ct. at 2190, 2194, 129 L. Ed. 2d at 138, 143. A divided Supreme
Court concluded under the circumstances that due process required that
the instruction be given. Id. at 171–75, 114 S. Ct. at 2198–2200, 129 L.
Ed. 2d at 147–51. We will now consider whether in this particular case,
based on the unique factual circumstances, due process required that
Becker’s proposed instruction be given.

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Applying the totality-of-the-circumstances test, we conclude that
Becker has not made out a due process violation. We cannot conclude
that Becker did not receive a fundamentally fair trial under all the facts
and circumstances. The jury asked the court what the consequences of
a not-guilty-by-reason-of-insanity verdict might be, but there is no direct
evidence that the jurors convicted based on their beliefs regarding the
consequences of an insanity verdict. We might come to a different
conclusion if prosecutors had given the inaccurate impression that
Becker would go free if he was found guilty by reason of insanity. See id.
at 165, 114 S. Ct. at 2194, 129 L. Ed. 2d at 143 (noting that due process
required an instruction on parole ineligibility was required when the
prosecutor “raised the specter of petitioner’s future dangerousness
generally, but then thwarted all efforts by petitioner to demonstrate that,
contrary to the prosecutor’s intimations, he never would be released on
parole”). However, there is no allegation that the State made any
improper remarks regarding the consequences of a not-guilty-by-reason-
of-insanity verdict in this case.
We are also concerned about the content of Becker’s proposed
consequence instruction. Becker’s proposed instruction would have
informed the jury that if he were found not guilty by reason of insanity,
he would be “ordered committed to a state mental health institute or
other appropriate facility for a complete psychiatric evaluation.” Becker
claims that such an “instruction may effectively eliminate unnecessary
and dangerous speculation [by the jury]” and inform the jury “what
would happen if they voted not guilty by reason of insanity.” The State
claims that Becker’s instruction was unnecessary because jurors are
presumed to follow jury instructions. Further, even if jurors had the
concerns pointed out by Becker, Becker’s proposed instruction was

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“inadequate to achieve its aims” of alleviating the jury’s concerns about
the consequences of a not-guilty-by-reason-of-insanity verdict.
We agree with the State on both counts. First, juries are presumed
to follow the court’s instructions. Hanes, 790 N.W.2d at 552. The court
instructed the jurors not to concern themselves with the consequences of
a not-guilty-by-reason-of-insanity verdict. We must presume the jurors
followed that instruction and did not consider the consequences when
engaging in their deliberations.
Second, even if the jurors were willing to disregard their oath and
the district court’s instruction, Becker’s proposed instruction would not
adequately and accurately advise the jury of the possible consequences
of the not-guilty-by-reason-of-insanity verdict. It only tells the jury that
Becker will be evaluated. It provides no guarantees to the jury as to
when and under what circumstances Becker might be released. As the
Supreme Court noted,
[I]f the members of a jury are so fearful of a particular
defendant’s release that they would violate their oaths by
convicting [the defendant] solely in order to ensure that he is
not set free, it is questionable whether they would be
reassured by anything short of an instruction strongly
suggesting that the defendant, if found NGI, would very
likely be civilly committed for a lengthy period.
Shannon, 512 U.S. at 585–86, 114 S. Ct. at 2427, 129 L. Ed. 2d at 470
(citations and internal quotation marks omitted). Becker’s instruction
would have provided the jury with a fraction of the postverdict
commitment and evaluation procedures required by Iowa Rule of
Criminal Procedure 2.22(8). Under rule 2.22(8), it is impossible to know
when a defendant found not guilty by reason of insanity might be
released. See Iowa R. Crim. P. 2.22(8). Since Becker’s release would be
contingent on a number of future events, Becker’s proposed instruction

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does not fully and accurately explain the consequences of a not-guilty-
by-reason-of-insanity verdict. See People v. Goad, 364 N.W.2d 584, 591
(Mich. 1984). Accordingly, the district court did not err by refusing to
provide the proposed consequence instruction, and no due process right
was violated.
C. Conclusion. To summarize, we conclude that Becker has not
made the case for a due process violation under article I, section 9 of the
Iowa Constitution under either the Medina categorical framework or the
individual totality of the circumstances test. Under the Medina test, we
hold that fundamental fairness does not mandate that a district court
give the instruction whenever a defendant requests it. Under the totality-
of-the-circumstances test, it is possible that due process may require a
consequence instruction “under certain limited circumstances.”
Shannon, 512 U.S. at 587, 114 S. Ct. at 2428, 129 L. Ed. 2d at 471.
However, we conclude that under the specific facts and circumstances of
this case, fundamental fairness did not require the district court to
instruct the jury that, if the defendant were found not guilty by reason of
insanity, he would be committed to a mental health facility for
evaluation. It is unnecessary to provide a list of the possible
circumstances that might mandate a consequence instruction. Instead,
like the Supreme Court, “[w]e note this possibility merely so that our
decision will not be misunderstood as an absolute prohibition on
instructing the jury with regard to the consequences of [a not-guilty-by-
reason-of-insanity] verdict.” Id. at 587–88, 114 S. Ct. at 2428, 129 L. Ed.
2d at 471. After our de novo review of the record in this case, we hold
that due process under article I, section 9 of the Iowa Constitution did
not require the court to inform the jury of the consequences of a not-

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guilty-by-reason-of-insanity verdict. The district court did not err by
refusing to provide the jury with the proposed consequence instruction.
VI. Disposition.
The instructions given by the district court, when read as a whole,
fairly and accurately advised the jury of the legal standard it was to apply
to Becker’s insanity defense. Becker’s appeal on this ground is without
merit. Also, due process under article I, section 9 of the Iowa
Constitution does not require the district court inform the jury of the
consequences of a not-guilty-by-reason-of-insanity verdict under the
facts of this case. Becker’s conviction is affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Hecht, J., who dissents.

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#10–0631, State v. Becker
HECHT, Justice (dissenting).
I respectfully dissent. Similar to the Fifth Amendment of the
United States Constitution, article I, section 9 of the Iowa Constitution
guarantees Becker’s fundamental right to a fair jury trial and precludes a
deprivation of his liberty interest without due process of law. “The right
to present a defense is . . . fundamental and essential to a fair trial . . . .”
State v. Fox, 491 N.W.2d 527, 531 (Iowa 1992).
“The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to
present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the jury so
it may decide where the truth lies. Just as an accused has
the right to confront the prosecution’s witnesses for the
purpose of challenging their testimony, he has the right to
present his own witnesses to establish a defense. This right
is a fundamental element of due process of law.”
Id. (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923,
18 L. Ed. 2d 1019, 1023 (1967)). We, and other courts, have concluded
a defendant’s right to present a defense has been denied when defense
witnesses have been prevented by court rule from testifying or
intimidated into not testifying, Webb v. Texas, 409 U.S. 95, 98, 93 S. Ct.
351, 353–54, 34 L. Ed. 2d 330, 333 (1972) (per curiam); Washington, 388
U.S. at 23, 87 S. Ct. at 1925, 18 L. Ed. 2d at 1025, when a district court
fails to instruct the jury on a defense theory of the case, Bradley v.
Duncan, 315 F.3d 1091, 1098–99 (9th Cir. 2002), when the district court
excludes testimony relevant to a defendant’s defense of justification,
State v. Begey, 672 N.W.2d 747, 753 (Iowa 2003), or when an indigent
defendant is denied court funds to hire an expert to prepare a defense,
State v. Coker, 412 N.W.2d 589, 592–93 (Iowa 1987). Applying the same
reasoning, I would hold that the district court’s failure to give a

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“consequences” instruction under the circumstances of this case
deprived Becker of due process because it, in effect, nullified his insanity
defense and thus deprived him of a fair trial.
The majority opinion details the long history of the insanity defense
in Iowa jurisprudence. Expressing the public policy that insane persons
shall not be convicted of a crime, the legislature codified the defense
based on the enlightened proposition that mental illness should be
treated, not punished. The trial in this case was about only one
substantial question: Would the jury credit Becker’s insanity defense?
The standard against which the insanity defense is measured is, of
course, a demanding one. Public policy necessitates that the defense be
available only when the defendant’s severe mental illness caused the
act(s) constituting the factual basis of a criminal charge. Jurors take
this notion seriously, tending not to lightly excuse violent and homicidal
behavior from criminal sanction on insanity grounds. The extraordinary
factual circumstances of this case made it obvious before Becker’s trial
began that jurors would have overwhelming concerns about the
consequences of an insanity verdict as they pondered whether Becker
proved the defense.
As the majority opinion recounts, Becker had repeatedly exhibited
conduct suggesting severe mental derangement during the nine months
prior to the shooting. On three occasions, Becker was hospitalized for
mental health treatment after episodes of violent behavior against both
family members and a stranger. The episodes of violence were
accompanied by statements revealing Becker had an attenuated
connection with reality, including persistent delusional claims that
Coach Ed Thomas controlled him and others through extrasensory
powers. Despite his recurring inpatient psychiatric treatment, Becker’s

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severe mental illness was not controlled. Less than a week before he
shot and killed Coach Thomas, Becker violently assaulted a stranger,
damaged the stranger’s home by striking it with a baseball bat and
crashing into it with a car, and was admitted to a hospital for treatment.
Becker was discharged from the hospital approximately twenty-four
hours before the tragedy that led to this prosecution. Thus, the factual
circumstances of Becker’s mental illness forming the foundation of his
insanity defense were characterized by recurring episodes of extreme
violence interrupted by short courses of unsuccessful treatment of
schizophrenia.
Becker’s defense counsel astutely anticipated these extraordinary
circumstances would make it impossible for the jury in this case to credit
the insanity defense without a consequences instruction. Counsel
correctly intuited that if kept in the dark about the consequences of a
verdict of insanity, the jury could not take a chance that Becker would
again be turned loose without adequate medical management of his
severe mental illness to continue his crazed and extremely violent
behavior that had already caused one death. In my view, the peculiar
circumstances of this case demanded a consequences instruction to
allow Becker a meaningful opportunity to assert a statutory insanity
defense and to assure him a fair trial.
The record amply demonstrates the jury had reached an impasse
on the insanity defense by midday on the third day of its deliberations.
Seeking to break the impasse, the jury requested information about
“what would happen to Mark Becker” if he were found insane. I believe
this request clearly reveals some jurors were unwilling to credit the
insanity defense without the additional information. Indeed, when the
district court denied the jurors’ request for such information, the

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deadlock persisted through the remainder of the third day of
deliberations, and through the fourth day as well, before the impasse
was broken and the uninformed jury rejected Becker’s defense. Under
these circumstances, I would hold, just as surely as if Becker had been
denied the opportunity to present testimony, expert or otherwise,
supporting his insanity defense, the district court’s rejection of Becker’s
proposed “consequences” instruction deprived Becker of a meaningful
opportunity to assert his insanity defense. Given Becker’s history of
violent, delusional, and homicidal conduct consistent with severe mental
derangement, the jurors were justifiably unwilling, without the requested
information about the consequences, to risk the possibility that Becker
would again be released without proper psychiatric assessment and
management. Deprived of a meaningful opportunity to assert his only
defense, Becker’s right to a fair jury trial was abridged. I would grant
him a new trial.

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