Sec. 6. 17-A MRSA §39, sub-§3 is enacted to read:

3.__Lack of criminal responsibility by reason of insanity is an affirmative defense.

Sec. 7. 17-A MRSA §40, as amended by PL 1985, c. 796, §6, is further amended to read:

§40. Procedure upon plea of not guilty coupled with plea of not

criminally responsible by reason of insanity

1. When the defendant enters a plea of not guilty together with a plea of not criminally responsible by reason of insanity, he the defendant shall also elect whether the trial shall must be in 2 stages as provided for in this section, or a unitary trial in which both the issues of guilt and of insanity are submitted simultaneously to the jury. At the defendant's election, the jury shall must be informed that the 2 pleas have been made and that the trial will be in 2 stages.

2. If a 2-stage trial is elected by the defendant, there shall must be a separation of the issue of guilt from the issue of insanity in the following manner.

A. The issue of guilt shall must be tried first and the issue of insanity tried only if the jury returns a verdict of guilty. If the jury returns a verdict of not guilty, the proceedings shall must terminate.

B. Evidence of mental disease or defect, as defined in section 39, subsection 2, shall is not be admissible in the guilt or innocence phase of the trial for the purpose of establishing insanity. Such evidence shall must be admissible for that purpose only in the 2nd phase following a verdict of guilty.

3. The issue of insanity shall must be tried before the same jury as tried the issue of guilt. Alternate jurors who were present during the first phase of the trial but who did not participate in the deliberations and verdict thereof may be substituted for jurors who did participate. The defendant may elect to have the issue of insanity tried by the court without a jury.

4. If the jury in the first phase returns a guilty verdict,