               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.
                                    2

      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.
                                        3

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
                                     4

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.
                                   5

      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
                                     6

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
                                        7

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.”
                                     8

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
                                      9

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.
                                     10

      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
                                     11

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.”).
                                       12

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
                                         13

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).
                                    14
      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:
                                         15
              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.
                                    16
            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
                                     17

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
                                    18

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
                                    19

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.
                                      20

      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
                                          21

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.”
                                     22

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:
                                        23
             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


       6Thewording 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.
                                          24
       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.
                                           25

       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
                                            26

       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.
                                          27

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
                                      28

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
                                     29
      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
                                    30

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.
                                    31
              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
                                    32
      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
                                     33
      [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
                                     34

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);
                                     35

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
                                          36

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).
                                       37

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
                                   38
      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
                                     39

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
                                           40

“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).
                                           41

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,
                                              42

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).
                                              43

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
                                    44

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.
                                           45

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.”).
                                    46
      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.
                                   47

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
                                     48

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.
                                    49

      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
                                    50

“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
                                    51

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-
                                      52

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.
                                      53

                                                   #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
                                    54

“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
                                    55

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
                                       56

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.
