When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, does the State violate the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant?
Lower court decision: Kansas v. Cheever, 284 P.3d 1007 (Kan. 2012)
Cheever was originally charged with homicide in federal court, where he was ordered to undergo a psychiatric evaluation after he raised the possibility he would assert a defense based on mental condition. The federal case was eventually dismissed (for reasons irrelevant here) and Cheever was charged in state court, where he asserted a voluntary intoxication defense, supported by an expert who testified about the effect of methamphetamine use on the brain. Cheever testified, and the state was allowed to impeach him with statements he made to the psychiatrist who did the federal court evaluation. The state was also allowed to call the psychiatrist as a rebuttal witness to debunk Cheever’s defense.
Estelle v. Smith, 451 U.S. 454 (1981), and Buchanan v. Kentucky, 483 U.S. 402 (1987), allow use of court-ordered mental exam when a defendant puts his mental state in issue. Wisconsin has applied these principles, although not in a situation like that presented in Cheever. See State v. Slagoski, 2001 WI App 112, ¶¶12-19, 244 Wis. 2d 49, 629 N.W.2d 50 (use of NGI evaluation at sentencing did not violate Fifth Amendment because entry of NGI plea waived privilege); State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913 (holding that character trait evidence under State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), does not necessarily place defendant’s mental status at issue).
The Kansas Supreme Court accepted the holdings of Estelle and Buchanan, but still held the psychiatrist’s testimony violated Cheever’s Fifth Amendment rights because voluntary intoxication is not, as a matter of state law, “a mental disease or defect” defense that waives the right against self-incrimination. Thus, the state’s cert petition (at 12) asks the Court to decide whether the scope of the Fifth Amendment is to be determined by reliance on state statutory definitions of mental disease or defect and voluntary intoxication defenses, rather than the fact the defendant deliberately made his mental state an issue in the case. Other states have split on this question, some taking Kansas’s position, most not.
It is not clear how Cheever’s case would have played out in Wisconsin. If the psychiatric evaluation had been done due to an NGI defense raised in federal court, like Cheever’s, Davis suggests expert testimony related to “the defendant’s capacity to form the requisite intent”–like involuntary intoxication under § 939.42(2), which only applies if it negates a state of mind essential to the crime–would be treated as a waiver of the privilege against self incrimination. But what if the evaluation was done because the defendant first raised a § 971.15 NGI defense and then abandoned that defense in favor of voluntary intoxication? That would bring into play Wis. Stat. § 971.18, which says a statement made for purposes of an NGI evaluation under ch. 971 is inadmissible “on any issue other than that of [the defendant’s] mental condition.” Does a voluntary intoxication defense raise an issue of “mental condition” such that § 971.18 would allow use of an evaluation done for the now-abandoned NGI defense? The statute was intended to codify the Fifth Amendment privilege during the guilt phase of an NGI trial, State v. Jacobson, 164 Wis. 2d 685, 687-88, 476 N.W.2d 22 (Ct. App. 1991), so it seems safe to say that whatever Cheever says is permissible under the Fifth Amendment will also be permissible under § 971.18.