dissenting.
In 1984 a jury acquitted Alan Roberts of a 1982 homicide by reason of mental disease or defect, and he was committed to AMHI. See 15 M.R.S.A. § 103 (1980). AMHI physicians, however, have never believed that he has or had a mental disease or defect. Now, after some conditional releases and a previously rejected recommendation for discharge, AMHI once again seeks his complete discharge from its custody. The State presented AMHI’s recommendation to the Superior Court with two State-employed psychiatrists testifying that *684Roberts has no mental disease or defect. The State presented no evidence that Roberts has any current mental disease or defect. Under these circumstances, since the Maine Legislature has provided that antisocial behavior alone is not enough but instead has required the continued existence of a mental disease or mental defect as a condition to continuing commitment, I would vacate the Superior Court’s order and direct that Roberts be discharged from AMHI custody.1
The Legislature has directed that the head of AMHI forward annually to the Commissioner of Mental Health & Mental Retardation a staff psychiatrist’s opinion concerning the mental condition of anyone committed for mental disease or defect. The opinion must state “specifically whether he may be released or discharged without likelihood that he will cause injury to himself or to others due to mental disease or mental defect,” along with “the reasons for the opinion.” 15 M.R.S.A. § 104-A (Supp.1988). The Commissioner must then file the report in Superior Court. That court must review the report and, if release or discharge is recommended, set a hearing on the issue. Notice and a copy of the report must be given to the Attorney General, the District Attorney’s office that prosecuted the criminal charge and any District Attorney’s office where the release petition is filed or where the release may occur. The Legislature has specified that at the hearing the court must receive testimony from at least one psychiatrist who has treated the individual, a member of the State Forensic Service who has examined the person, any independent psychiatrist or licensed clinical psychologist employed by the prosecutor who has examined the person and any other relevant testimony. Then, after hearing, the court must determine whether the individual “may be released or discharged without likelihood that he will cause injury to himself or to others due to mental disease or mental defect.” Id. (emphasis supplied).
In this case, the Commissioner of Mental Health & Mental Retardation has sought Roberts’ discharge under the statute pursuant to an AMHI staff psychiatrist’s opinion. We have said that such a proceeding is “a type of original proceeding” — “not a part of the criminal case that resulted in the commitment.” Taylor v. Comm’r of Mental Health, 481 A.2d 139, 145 (Me.1984). At the hearing on the petition held in August of 1988 the director of the State Forensic Service, Dr. Jacobsohn, testified; the clinical director and Roberts’ treating psychiatrist at AMHI, Dr. Buck, testified; and Roberts testified. The prosecutors who were notified of the hearing did not submit testimony from any other psychiatrists or psychologists although the court invited the Attorney General to submit the testimony of Dr. Robinson, the defense expert who had testified at Roberts’ trial and persuaded the jury that Roberts had a mental disease or defect at the time of the crime. Drs. Jacobsohn and Buck (both of whom had recently treated or examined Roberts) testified that Roberts was not suffering from a mental disease or defect. That was the only testimony presented on his condition. On this record, Roberts should have been discharged on the Commissioner’s request under the statute. Nevertheless, this Court upholds the Superior Court’s order denying discharge and finding that Roberts now suffers from a mental disease or defect.
The Court’s reasoning that Roberts failed to meet his burden of proof will not suffice.2 It is not simply that the only two *685psychiatrists to testify stated that Roberts has no mental disease or defect; these were the representatives of Roberts’ ostensible adversary, the State. No one testified to the contrary. Instead, the Attorney General’s office advised the Superior Court through its representative: “Mr. Roberts has been in the custody of these people, they have seen him, I have confidence in their ability,” and again, “I do reiterate the fact I do have confidence in Dr. Jacob-sohn’s medical evaluation in this case,” and yet again, “I have to be forthright with the Court and tell you that I really have confidence in Dr. Jacobsohn and I do have confidence in Dr. Buck.” If this does not meet the burden of proof in civil litigation, what will? Instead, Roberts is faced with the catch-22 that Drs. Jacobsohn’s and Buck’s testimony that he has always been sane becomes transmuted into evidence that he is still insane.3 Put another way, the only means Roberts has to satisfy a trial justice under the Court’s reasoning is to have the original Dr. Robinson testify that his condition has changed or to find some other doctor who could testify both that he is sane now and that he was insane at the time of the offense. Testimony that he is not now insane, no matter how persuasive, apparently will never suffice for Roberts.4 That is more than a burden of proof. That amounts to laying down a condition for discharge beyond what the Legislature has adopted.
Apparently either the jury and Dr. Robinson were wrong on Roberts’ mental condition or AMHI personnel were and are wrong. No one would be happy with a system whereby AMHI could turn around and release someone whom a jury acquitted by reason of insanity simply because AMHI personnel did not agree with the jury. But that is not the system the Legislature has provided. Instead, ample opportunity is afforded the prosecutors — the Attorney General, the District Attorney in the location where Roberts will be released, the District Attorney in the location where the petition is filed, and the District Attorney who originally prosecuted — to present evidence that someone like Roberts continues to have a mental disease or defect. Here, however, the State through its various officials chose not to present any such evidence for the court to consider but only the AMHI reports and testimony supporting discharge. Indeed, the Attorney General’s office did not even oppose the release in the trial court (the District Attorney for Prosecutorial District IV did file a letter saying he wanted to oppose the discharge and once sought a continuance of the hearing, but did not participate further) and the brief on appeal is hardly that of an advocate supporting the judgment entered below.5 We must conclude either that there *686is no available evidence of a current mental disease or defect or that the State chooses not to present it.6 The first conclusion compels Roberts’ discharge under the statute; the second raises important questions about the comparative roles of court and prosecutor. I do not believe it is the court’s role to seek out information the prosecutor has failed to provide in such circumstances any more than we tell prosecutors which cases to pursue and which ones to ignore. The dilemma cannot be resolved by focusing on Dr. Robinson’s 1984 testimony in deciding whether Roberts has a mental disease or defect in late 1988.7 The State did not present that testimony to the court as germane to Roberts’ current condition. We would not in any other context ignore uncontradicted current psychiatric testimony in favor of four-year old opinions not advanced by any party-8
In short, the Maine Legislature has directed that someone committed to AMHI because of acquittal by reason of insanity can be kept there only if the evidence shows that he continues to suffer from a mental disease or defect. Although the jury may have erred in its 1984 finding in the criminal case concerning Roberts, we cannot use that finding to justify keeping him at AMHI in the absence of reasonably current psychiatric or psychological opinion that he has a mental disease or defect now. As this Court said in Taylor, “the court proceeding on [the] petition for release is not a part of the criminal case that resulted in his commitment; it rather is a type of original civil proceeding.” 481 A.2d at 145. The State, through the Attorney General or the District Attorneys, has the obligation to present relevant testimony to the court in this proceeding. Where the State concludes that its interests9 will not be furthered by continued commitment and chooses instead to present only testimony that demonstrates sanity, it is not the court’s role to make the case for mental disease or defect on its own.
. In fact, Roberts already lives in the community, subject only to AMHI supervision that entails continuing counselling sessions and outpatient substance abuse treatment, attending regular Alcoholics Anonymous meetings, not possessing drugs or alcohol, routine drug and alcohol testing, not possessing or using firearms, maintaining employment and refraining from criminal conduct.
. Interestingly, the process here was initiated by the Commissioner, not by Roberts. In Taylor v. Comm’r of Mental Health, 481 A.2d 139, 144 n. 6 (Me.1984), we recognized that the statute fails to provide an express declaration of who bears the burden of proof. There, the inmate had brought the release petition and we imposed the burden of proof upon him as the moving party "as in any other civil proceeding." Although the issue was not before the court we went on to *685add that the burden lay with "the acquittee, whether he is the petitioner or only the person on whose behalf the proceeding is undertaken ” (emphasis supplied). This position creates some difficulty. It is not entirely clear that the Commissioner undertakes a proceeding such as this only on behalf of the inmate. When the Commissioner believes that an inmate has no mental disease or defect and cannot be treated for one, his interest may be an independent State interest in freeing up scarce resources, and perhaps the burden of proof should lie with the Commissioner as the moving party. But then who is the commissioner’s opponent? Or, in this case, who is Roberts’ opponent? Under either approach, since Roberts and the Commissioner were the only two parties and since neither had any adversary submitting evidence at the hearing, burden of proof principles are difficult to apply and certainly do not serve to “allocate the risk of error between the litigants.” 481 A.2d at 151 (speaking of choice of standard of proof).
. The Court's reasoning seems to be: Dr. Robinson testified in 1984 that Roberts was then insane; Drs. Buck and Jacobson testified in 1988 that Roberts is now sane, just as he was in 1984; therefore Roberts can be considered insane in 1988.
. As the trial justice stated:
I would like someone to come in and say, and I doubt that I will ever get that testimony, that he was sick and now he is better and I would feel better in releasing him, and under the terms of this statute, I have never had that kind of testimony and probably never will.
. The brief argues that “it may be possible for this court to conclude that the hearing justice below did not act irrationally_’’ and concludes only that “if this cotut concludes that the hearing justice below did not act irrationally ..., then the Appellant’s appeal should be denied” (emphasis supplied).
. At the close of the hearing, the following colloquy occurred:
MR. LaROCHELLE: Well, as I said, I am perfectly willing to talk with Dr. Robinson, and if at least in my statements he would be in a position to provide the Court with useful testimony, I could make you aware of that and you could reopen the matter.
THE COURT: I appreciate that. I will be taking this matter under advisement anyway, because I have some rather serious questions that I have to come to grips with.
No testimony from Dr. Robinson was ever provided.
. There has been no further testimony from that expert (Dr. Robinson) since April of 1984, almost four and one-half years before the Superi- or Court’s order in this case.
. This case is unlike LaDew v. Comm’r of Mental Health, 532 A.2d 1051 (Me.1987), where we permitted consideration of previous psychological evaluations that were both submitted into evidence and much more recent (one being only ten months before the hearing). 532 A.2d at 1055.
. Under the statute only antisocial behavior that results from mental disease or mental defect justifies continuing custody at AMHI. The State's expert, Dr. Buck, testified that “our job is to treat mental illness, and Mr. Roberts doesn’t have a mental illness, he has a personality disorder.” The State would have preferred to have Roberts under probation and parole supervision in connection with a disorderly conduct conviction.