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An Insane Proposal on Mental Evidence

Here is a fairly reliable indicator that an argument is not going well:

JUSTICE SOTOMAYOR: Mr. Katyal, assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?
The US Supreme Court today heard oral argument in the case of Kansas murderer and meth dealer Scott Cheever.  The transcript is here.  The case is described in my preview post Monday and in my post last year after the Kansas Supreme Court decision.

The case involves a compulsory mental examination of a defendant who intends to offer a mental defense and put on expert testimony, based on the defense expert's examination, to support that defense.  Shouldn't the prosecution have a comparable opportunity to examine the "crime scene" of the defendant's mind to make an effective rebuttal?  Federal Rule of Criminal Procedure 12.2 says yes, as do similar rules in most states.

Defense attorney Katyal started off on narrow grounds, arguing that the prosecution expert went way beyond the permitted rebuttal into various other matters prejudicial to the defense.  That is a reasonable argument, and if the Kansas Supreme Court had actually ruled on that ground, this case never would have made it to SCOTUS.  That question is not properly presented to the high court.

Later, Katyal gets into an argument that would, if accepted, render FRCrP 12.2 and kindred state rules unconstitutional, and even the justices who most often side with the defense are astonished, prompting Justice Sotomayor's comment above.  On this point, the decision will likely be 9-0 or perhaps 8-1.
A little later in the argument, there is an interesting discussion of unintended consequences.  If governments are constitutionally barred from effectively rebutting defense psychiatric testimony, will they react by simply banning such testimony altogether?  For voluntary intoxication specifically, we know from Montana v. Egelhoff that the state can simply abolish the defense, as Katyal concedes.

JUSTICE SCALIA: I'll bet you the prosecution would accept your alternative in a heartbeat.


JUSTICE SCALIA: No defendant can introduce any psychiatric evidence. That's a good deal for the prosecution.

Once upon a time, the offense of driving while intoxicated meant driving while actually intoxicated.  Blood alcohol level raised a presumption, but the defendant could rebut it.  (Contrary to myth, impairment is not a simple function of blood alcohol level.)  Sandstrom v. Montana said no more presumptions.  Per se alcohol laws said no more rebuttal.  DUI defendants were much better off with the now-forbidden presumption.

Today's argument indicates the Court will not go that way.  But what is the Fifth Amendment theory for the parity of access that all or nearly all of the justices agree is permissible?  The traditional explanation is "waiver," but an old D.C. Circuit opinion written by Justice Scalia and joined by Justice Ginsburg called that a "fiction," and I agree.  As explained in CJLF's amicus brief in this case, I believe it is a question of the defendant choosing to be a witness in his own case when he chooses to speak to his own expert and have the result of that examination introduced in evidence. 

JUSTICE KAGAN: Mr. Katyal, could I go back to the cross-examination analogy. Because you say your case is different, but I think you'll have to explain that one to me. It seems to me that the cross-examination cases say you can't become a witness halfway. Once you've decided to become a witness, you have to subject yourself to all the things that every other witness is subjected to.
And it seems to me that you haven't convinced me that the same point isn't true here, that the person, Mr. Cheever, has decided to become a witness essentially by giving an interview to his own expert and allowing his own expert to speak about what Mr. Cheever has told him. And so, you know, he can't do it halfway. Now the government has to get its shot. Same way.
Nailed it.

Update:  Amy Howe has this report of the argument at SCOTUSblog.  Michael Doyle has this article for McClatchy newspapers.

Update 2:  Audio of the argument is available here.


I couldn't have said it better. Great analysis Kent.

Kent, why do believe the Court is apparently willing to accept your 5A "choose-to-be-a-witness" theory in this case, but not in Salinas v. Texas?

Was Salinas a witness? Perhaps I am missing something but I thought the issue was whether out-of-court silence in response to a question was the issue in Salinas.

Paul, I'm not as confident as that, but Justice Kagan's nail-on-the-head comment is certainly encouraging.

BTW, it's not unusual to advance the same thesis multiple times before the Court accepts it.

Wouldn't Kagan's logic support a confrontation right to cross-examine witnesses who form the basis of a state expert's opinion?

The premise that a defendant's statements during a mental examination are testimonial in nature has long been established. Whether other statements of other persons relied on by an expert are "testimonial" for the purpose of the Confrontation Clause, as it understood post-Crawford, is a different, and so far murky, question.

Correct me if I am wrong, but "statements of other persons relied on by an expert" are not introduced to prove the truth of the matter asserted. Therefore, it is irrelevant, for purpose of the Confrontation Clause, if they are "testimonial" under any of three divergent tests set forth in Williams v. Illinois.

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