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Rebutting Psychiatric Defense Evidence

This morning the US Supreme Court unanimously reversed the decision of the Kansas Supreme Court in Kansas v. Cheever

We hold 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.
The Kansas Supreme Court had held that this rule applies when the defendant is making a "mental illness" defense but not when he claims a transient mental factor, including intoxication, impaired his ability to form the mental state required for the crime.  That is a nonsensical distinction and an overly cramped view of the US Supreme Court's precedents in the area.

Unfortunately for those interested in the theoretical aspects, the Court's opinion does not resolve the interesting question of the basis of the rule.  Is it a matter of "waiver" of the Fifth Amendment self-incrimination privilege, as has been traditionally stated, or is it a matter of having chosen to become a witness to a limited extent by introducing testimony based on an examination of the defendant?   See CJLF's brief for a more complete description of the latter view.

There is some leaning in the latter direction on page 6 of the slip opinion, noting the harmony with the principle that a defendant who testifies cannot refuse cross-examination.  The theoretical question was discussed but not resolved in a 1984 D.C. Circuit opinion cited on that page for another point.  That opinion was written by Circuit Judge Scalia and joined by Circuit Judge Ginsburg.

Today the rule is firmly established.  Theory will have to wait for another day.


Regarding theory: The Court's use of the phrase "core truth-seeking function of the trial," on page seven, seems to me to be the most intuitive reason for the Court's rule (i.e., It Just Ain't Fair)

"Waiver" involves a voluntary relinquishment of a known right, and "choosing-to-be-a-witness" theory might, arguably, require advising the defendant of the consequences of his decision?

The Court has relied upon the "truth-seeking" rationale in other contexts to justify its rules. But it still not clear (to me) what provision of the Constitution gives birth to this rule? Is it simply a "penumbra" of the Sixth Amendment's jury trial guarantee, or Fifth and Fourteenth Amendment due process/fair trial principles -- albeit rights accorded the defendant, and not the prosecution?

I guess, in the end, theoretical underpinnings really don't matter?

Certainly theoretical underpinnings matter less than a clear holding, which we do have in this opinion. I think a solid theory matters, though, in terms of making a precedent more durable against future attack. Theory helps fit the pieces together and makes it less likely that a precedent will be abandoned in the future when it is found to be inconsistent with other pieces of the puzzle. Walton v. Arizona, overruled in Ring v. Arizona, is perhaps an example.

Other than theory, does it matter whether it's waiver or being a witness?

Conceivably, at some point, a court might come up with some sort of Miranda-like warning requirement based on a waiver theory. For the time being, at least, no, it does not matter.

And a waiver has to be voluntary, knowing and intelligent.

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