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When a defendant asserts a “mental status” defense, Fifth Amendment allows state to use court-ordered psych exams in rebuttal

Kansas v. Cheever, USSC No. 12-609, 12/11/13

United States Supreme Court decisionreversing Kansas v. Cheever, 284 P.3d 1007 (Kan. 2012).

The Supreme Court unanimously holds that “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.” (Slip op. at 10).

Cheever was originally charged with homicide in federal court, where he asserted his intoxication on methamphetamine negated his ability to form specific intent. Raising this defense resulted in a court-ordered psychiatric evaluation, which included hours of interviews with a forensic psychiatrist. After the federal case was dismissed (for reasons not relevant here) Cheever was charged in state court. Once again he asserted a voluntary intoxication defense, arguing his meth use rendered him incapable of premeditation. To support the defense he presented an expert who testified that Cheever’s long-term meth use had damaged his brain. In rebuttal, the state was allowed to call the psychiatrist who evaluated Cheever in the federal prosecution, who opined that Cheever acted based on his antisocial personality, not because he was impaired by drug use. (Slip op. at 2-3). The Kansas Supreme Court held that allowing the federal psychiatrist to testify about the statements Cheever made during his court-ordered federal evaluation violated his Fifth Amendment rights.

The Supreme Court reverses. “The rule of Buchanan [v. Kentucky, 483 U.S. 402 (1987)], which we reaffirm today, is that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal.” (Slip op. at 5). This rule, the Court says,

harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant “has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.” Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 44 L.Ed. 1078 (1900). We explained in Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958), which involved a witness’s refusal to answer questions in a civil case, that where a party provides testimony and then refuses to answer potentially incriminating questions, “[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Id., at 156 78 S.Ct. 622. When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him. (Slip op. at 6).

Buchanan rested in large part on Estelle v. Smith, 451 U.S. 454 (1981), where a defendant who had not placed his mental status in issue was subjected to a psychiatric examination ordered sua sponte by the court, without notice to defense counsel. Under these circumstances the defendant’s Fifth Amendment right against compelled self-incrimination precluded use of the statements made during the examination. But the Court also noted that if the defendant presented psychiatric evidence, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. 451 U.S. at 465.

The lower court held Buchanan applies only when the defendant alleges a “mental disease or defect” impaired his ability to form the mental state required for the crime, not when he asserts he was affected only by a temporary mental condition, such as intoxication. The Supreme Court rejects this reasoning, because Buchanan itself involved a defense based on a temporary condition (extreme emotional disturbance), and its rule is not premised on a semantic difference between “mental disease or defect” and “mental status”:

…. Although Kansas law defines “mental disease or defect” narrowly, to exclude voluntary intoxication, that phrase is actually not the salient one under our precedents. In Buchanan, we permitted rebuttal testimony where the defendant presented evidence of “the ‘mental status’ defense of extreme emotional disturbance.” 483 U.S., at 423. And “mental status” is a broader term than “mental disease or defect,” at least to the extent that Kansas law excludes voluntary intoxication from that definition. Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate. Defendants need not assert a “mental disease or defect” in order to assert a defense based on mental status.” (Slip op. at 7-8).

The Court does note, however, that rebuttal testimony based on a court-ordered psychiatric evaluation is admissible for the limited purpose of answering the defense actually raised. (Slip op. at 9). Cheever argued that the rebuttal testimony presented by the state in his case exceeded this limit, though the lower court didn’t address the argument; accordingly, the Court remanded the case for consideration of that issue. (Slip op. at 9-10).

This decision should not have much impact on state practice. First, Wisconsin precludes a defendant from presenting expert psychiatric testimony about the capacity to form intent if that expert testimony rests in whole or in part on the defendant’s mental health history. State v. Morgan, 195 Wis. 2d 388, 403-13, 536 N.W.2d 425 (Ct. App. 1995); Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980). The issue presented in Cheever could arise in some cases, however, for a defendant who (like Cheever) raises a defense of voluntary intoxication, § 939.42(2), may present expert testimony about his or her capacity to form intent to commit an offense if the expert’s opinion is based solely on intoxication, without any admixture of mental health history. State v. Flattum, 122 Wis. 2d 282, 361 N.W2d 705 (1985); State v. Repp, 122 Wis. 2d 246, 362 N.W.2d 415 (1985). A defendant can also present expert testimony in support of a defense of involuntary intoxication, § 939.42(1), because that defense is akin to NGI and doesn’t raise the issue of lack of capacity to form intent. State v. Gardner, 230 Wis. 2d 32, 36-39, 601 N.W.2d 670 (Ct. App. 1999).

Moreover, the few Wisconsin cases applying Buchanan or Estelle (or both) seem to have anticipated the result. “After Buchanan, a defendant who initiates a psychiatric evaluation and places mental status in controversy waives the right to remain silent,…” State v. Slagoski, 2001 WI App 112, ¶14, 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). See also State v. Lindh, 161 Wis. 2d 324, 365-69, 468 N.W.2d 168 (1991) (defendant who raised NGI defense did not have Fifth Amendment right to exclude statements made to state-retained psychiatrist from the responsibility phase of bifurcated trial, even though he made the statements well before he formally raised the defense), denial of habeas petition reversed on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997); habeas relief granted on remand on other grounds, Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997). (Waiver of the privilege with respect to statements made during the mandatory evaluations under § 971.16 does not allow use of the examination at the guilt phase of the bifurcated trial, State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607, 150 N.W.2d 318 (1967); nor does it allow the state to call the defendant as a witness during the responsibility phase, State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916.)

Be aware that even if you are not raising a “mental status” defense, putting the defendant’s version of the offense into issue through testimony of a psychological expert waives the defendant’s Fifth Amendment privilege. See State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913 (character trait evidence under State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), did not turn expert in “conduit” for defendant’s version of offense, so privilege not waived); State v. Kleser, 2010 WI 88, ¶¶108-17, 328 Wis. 2d 42, 786 N.W.2d 144 (applying Davis, and citing Estelle, to hold that defendant waived privilege during reverse waiver proceeding by telling his psychological expert the facts of the case, thus putting “his account of the offense into issue through his expert”). If the privilege is waived the state can compel an examination of the defendant by its own expert, though Davis, ¶45, cites Buchanan to hold that the evidence from the compelled exam may only be used in rebuttal.

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