(dissenting in part, and concurring in part).
I concur in the result, but because in State v. Bott we did not attempt to analyze or consider the merits of changing the rules governing instructions where insanity is a defense, I would now prospectively do so.
Generally, courts approving disposition instructions base their rulings on the prejudicial effect of a jury’s erroneous belief that an acquittal on grounds of insanity will free the defendant. In People v. Cole, 382 Mich. 695, 720, 172 N.W.2d 354, 366 (1969), the court viewed its decision as a choice between:
“ * * * 1) the possible miscarriage of justice by imprisoning a defendant who should be hospitalized, due to refusal to so advise the jury; and 2) the possible ‘invitation to the jury’ to forget their oath to render a true verdict according to the evidence by advising them of the consequence of a verdict of not guilty by reason of insanity.”
See also, State v. Babin, 319 So.2d 367, 381 (La., 1975 on Rehearing); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (Nev.1964).
Minnesota does not have an automatic commitment rule. Rule 20, Rules of Criminal Procedure, provides that when a defendant is found not guilty by reason of mental illness or mental deficiency, the court shall cause civil commitment proceedings to be instituted against him. The defendant is detained pending completion of the proceedings. If the crime charged was a felony or gross misdemeanor and the defendant is committed, he shall not thereafter be released from commitment if the trial court determines, after hearing on his proposed release, that he continues to be mentally ill or deficient and dangerous to the public.
If the jury knows the legal consequences of an acquittal by reason of mental illness, its verdict will not be the product of a “mistaken impression that the defendant will necessarily be freed or be indefinitely committed to a mental institution.” State v. Krol, 68 N.J. 236, 265, 344 A.2d 289, 304 (1975). Since the court cannot prevent the jury from speculating on the results of its verdict, it should at least ensure that such considerations are based on accurate information.
Accordingly I would prospectively authorize trial courts to instruct the jury on the following provisions of Rules 20.02, Subd. 8(1) and (4), Rules of Criminal Procedure, whenever requested by the defendant to do so:
“Subd. 8 Legal Effect of Finding of Not Guilty by Reason of Mental Illness or Deficiency.
“(1) Mental Illness. When a defendant is found not guilty by reason of mental illness, and the defendant is under civil commitment as mentally ill, the court shall order that the commitment be con*445tinued, and if not under commitment, the court shall cause civil commitment proceedings to be instituted against him and that the defendant be detained in a state hospital or other facility pending completion of the proceedings. The commitment or continuing commitment in felony and gross misdemeanor cases shall be subject to the supervision of the trial court as provided by Rule 20.02, subd. 8(4).
“(4) Continuing Supervision. In felony and gross misdemeanor cases only, the trial court shall be notified of any proposed termination of the civil commitment, and the court, after notice to the parties, shall hold a hearing thereon. If the court determines that the defendant is mentally ill or deficient and dangerous to the public, the defendant shall not be discharged from civil commitment. Otherwise, the civil commitment shall be terminated and the defendant discharged therefrom.”WAHL, Justice
(dissenting in part, and concurring in part).
I join the opinion of OTIS, J., concurring in the result but proposing to prospectively change the rule governing instructions where insanity is a defense.