Four states have adopted, by case law, the common law rule prohibiting the execution of the presently incompetent.

"The witness [Dr. Rickles], of course, had no personal knowledge concerning the facts of the case, and his opinion on the question of premeditation or the lack of premeditation was inadmissible."

"Such evidence tends to show the relationship of the parties and their feelings one toward the other, and often bears directly upon the state of mind of the accused with consequent bearing upon the question of malice and premeditation."

There also is authority that a court has inherent power in inquiry into insanity in the death penalty case, a power which would seem available in the non-capital cases as well.

—for example, the question was only whether that instruction increased the defendant's burden of proof.

Other states, such as Louisiana, Pennsylvania, Tennessee, and Washington adopted the common law rule by judicial decision.

ANN. § 23A-27A-24 (1979); UTAH CODE ANN. § 77-19-13 (1982); VA. CODE § 19.2-177 (1983); Wyo. STAT. § 7-13-901 (Supp. 1986).

When an alleged victim acts inconsistently with a disclosure of abuse, such as by failing to timely report the abuse or by recanting or minimizing the accusations,[3] evidence of prior abuse is relevant and potentially admissible under ER 404 (b) to illuminate the victim's state of mind at the time of the inconsistent act.

The common law approach seems to have been to leave procedures for dealing with insanity problems to the discretion of the trial judge.