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The United States Supreme Court in
Kansas v. Cheever reaffirmed the rule set forth in
Buchanan v. Kentucky
that the government does not violate a defendant’s Fifth or Sixth
Amendment rights by offering testimony from a court ordered psychiatric
evaluation to rebut a mental state defense offered by a defendant at
trial.
The Court explicitly failed to address a number of
important issues including the scope of this evaluation and consequent
rebuttal testimony. Additionally, the propriety of such an evaluation
and its scope in the first instance was not addressed in Cheever.
Numerous states have enacted statutes governing government initiated
mental status evaluations of criminal defendants pretrial. However, the
existence of these statutes and their corresponding case law does not
mean that these statutes pass constitutional muster.
While Kansas
v. Cheever does not explicitly describe the constitutional limits of
government initiated evaluations, Justice Sotomayor very clearly stated
that court-ordered psychiatric evaluations are admissible “only for a
limited rebuttal purpose” and nothing suggests, for example, that a
defendant “opens the door to admission of psychiatric evidence on future
dangerousness by raising an insanity defense at the guilt stage of the
trial.”
We must be vigilant in protecting our clients from
unnecessary and unconstitutional government initiated mental status
evaluations. If the government notices or requests a psychiatric or
psychological evaluation of your client, you, as counsel must request a
hearing in which to litigate the propriety and scope of that evaluation.
Your goal should be to prevent the evaluation from occurring but if it
is to occur to limit its scope as much as possible. There are surely
situations where it would be unconstitutional for the court to order an
evaluation at all, for example if the defense does not intend to offer a
mental state defense or when it can be shown that the prosecution is
simply on a fishing expedition or the evaluation is to serve as a
surrogate interrogation when your client has previously invoked his
right to remain silent. It would also be inappropriate for a court to
permit a mental health evaluator to conduct an evaluation when it is
clear that he or she is partial and/or predisposed to come to a
particular conclusion.
Maldonado 53 Cal.4th 1112 (2012).
Furthermore,
there may be situations where it is appropriate for the defendant to
refuse to participate in a court ordered mental status evaluation. Such a
decision is dependent on the nature of the particular order by the
court and the rules of your jurisdiction. The United States Supreme
Court has yet to decide whether statements obtained during such an
evaluation may be used to impeach a defendant who testifies but who does
not offer a mental state defense at trial.
During the hearing on
the scope of the evaluation the court should rule on the timing of the
evaluation and its scope including the proper subjects of inquiry,
improper subjects of inquiry, and what tests, if any may be
administered. For example, it may be inappropriate for the evaluator to
ask any offense-specific questions when conducting a sanity evaluation
Traywicks v. Oklahoma, 927 P.2d 1062 (Okla.Crim.App.1996)
where
the court held he State needs the mental health evidence to rebut the
insanity defense, and it seems logical that raising that defense waives
the defendant's right to silence as to those mental health issues.
However, evidence of the crime itself is a distinct and different
question from the issue of mental illness. Accordingly, the defendant
retains the right to assert his Fifth Amendment privilege as to the
details of the crime. Of course, the defendant could waive his privilege
to remain silent as to the details of the crime, but that waiver would
have to be done knowingly and voluntarily after the administration of
Miranda warnings., conduct personality testing when the only issue
in the case is defendant’s drug use United States v. Taylor, 320
F.Supp.2d 790 (N.D. Ind. 2004) (See also Centeno v. Superior Court, 117
Cal.App.4th 30, 11 Cal.Rptr.3d 533 (2004),
where the court held that
a defendant who tenders his mental condition as an issue waives his
Fifth Amendment right against self-incrimination to the extent necessary
to permit a proper examination of that condition, “[o]therwise, there
is a danger that defendants will be improperly subjected to mental
examinations beyond the scope of the precise issue they have tendered
and their resulting waiver of constitutional rights.” or offer a
diagnosis of anti-social personality disorder when the defense intends
only to offer evidence that the defendant has borderline intellectual
deficits.
U.S. v. Williams,731 F.Supp.2d 1012 (D. Hawaii 2010), See
U.S. v. Johnson, 383 F.Supp.2d 1145 (N.D.Iowa,2005)
for a comprehensive discussion of state and federal law on the scope of government initiated mental status evaluations.
The court must determine whether the evaluation may occur pretrial or
whether to defer ruling until the defense actually presents the mental
state evidence in trial. It is becoming increasingly common for courts
to order these evaluations pretrial. Therefore counsel must be prepared
to litigate these issues significantly before trial commences.
The
scope of rebuttal will be governed by the information obtained during
the evaluation conducted by the government appointed expert and by the
evidence of mental state you intend to offer at trial. Consequently, it
is very important to formulate a specific referral question that
narrowly focused and addresses only the issue relevant to your case. Any
testing conducted by this evaluator should also be strictly limited to
those tests necessary to answer the referral question.
Specific
areas of inquiry or tests proposed by government experts may be beyond
the scope of the defense proposed testimony. Counsel may also object to
certain proposed tests on the grounds that the test has not been proved
to be generally reliable or alternatively not reliable for the purpose
being used in your case.
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The
requested order should be explicit and comprehensive so that it covers
any issue that might arise during the evaluation.
Commonwealth v. Baldwin, 426 Mass. 105, 686 N.E.2d 1001, 1005 (1997)
You
may request the court order the evaluator to permit you to be present
during the evaluation. Typically this must be done in a fashion that
does not compromise the evaluation. As an alternative, you might request
the evaluation be recorded.
United States v. Byers, 740 F.2d 1104, 1172 (D.C.Cir.1984)
In
addition to litigating the scope of the evaluation, it is important to
litigate who will be given access to the results of the evaluation and
when. In federal court taint team lawyers are routinely employed to
protect privileged information from dissemination to prosecutors
involved in the prosecution and presentation of evidence at trial. Taint
team lawyers are lawyers who are not involved in the trial of the case
but tasked only with litigating issues surrounding the mental status
evaluations. Another alternative to a taint team is for the report
prepared by the government expert to be provided only to the court and
defense counsel until such time as the defense presents its mental state
evidence in trial. This may or may not be practical depending upon the
scheduling of the case and whether there will be planned breaks taken
during the trial or between the various phases of a trial.
If the
prosecution is given access to the report pretrial, it is very important
to ensure the government does not use any information obtained in
connection with the evaluation to discover or present evidence against
your client at trial.
Gibbs v. Frank
387 F.3d 268, 274 (3rd Cir. 2004) In other words, counsel must object
and request a hearing if the prosecution offers evidence that was
obtained as a fruit of the government initiated mental status
evaluation. Counsel should insist the court hold a hearing to determine
the source of such evidence if this type of violation is suspected.
In
conclusion, while the prosecution may offer evidence of a government
initiated mental status evaluation to rebut defense mental state
testimony, the scope of such an evaluation must be strictly limited. It
is counsel’s duty and obligation to litigate issues surrounding the
evaluation and if the court orders an evaluation, it is your obligation
to ensure that your client’s 5th and 6th Amendments rights are not
violated.
