DENVER (CBS4) – A Colorado lawmaker wants to make it much harder for a defendant to plead not guilty by reason of insanity.

The criminal justice system says a person is innocent until proven guilty and it’s always up to the prosecution to prove that. But now state Rep. Frank McNulty, R-Highlands Ranch, says that isn’t fair for victims and wants the rules changed.

The case that comes to mind is the Aurora theater shooting — a case where defendant James Holmes is expected to enter a plea of not guilty by reason of insanity. It will be up to the prosecution to prove that he was sane at the time of the crime, a burden that McNulty says should shift to the defense.

“Thirty-five other states, plus the District of Columbia, plus the federal government, put the burden on the defendant to prove that he was not sane at the time that he committed the crime,” McNulty said.

CBS4 Legal Analyst Karen Steinhauser says the Colorado constitution is clear in the due process of law.

“Colorado has always said the burden is on the prosecution to prove each and every element,” Steinhauser said.

McNulty says the bill is about victims’ rights.

“To me it’s unfair to ask the families of victims to sit through and endure watching and having prosecutors prove that the criminal is not insane,” McNulty said.

And even though a similar bill was ruled unconstitutional in the 1960s, McNulty hopes this one will become law.

“Colorado has changed since then,” he said. “This is a different place, a different time, a different bill.”

“The one thing we don’t want to see happen is to have the law changed, have that burden shifted, go through this whole process, and then have the case be overturned because that law was unconstitutional,” Steinhauser said.

Steinhauser pointed out that because the bill won’t be applied retroactively if it passes, it would not affect the Aurora theater shooting case.


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