Chapter 11 Mental Defenses and Mental Health Issues
| Library | How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.) |
Mental defenses and mental health issues seem to arise more often in murder trials than in any other type of criminal case. There are several reasons for this. First, and probably the most prominent reason, is that defense counsel are well aware of the very high stakes in a murder trial. Accordingly, one may expect no stone to be left unturned when it comes to possible defenses and mitigators, and that no possible defense will be overlooked.
Also, it's not just the defense that places a priority on murder cases. Quite appropriately, so do the prosecution and the police agencies. This can result in exhausting all options in developing evidence linking the defendant to the murder. If the evidence has been fully developed and there's simply no doubt that the defendant committed the murder, what's the only defense left? A mental defense!—"I did it but I must have been crazy at the time."
Further, if the defense is contesting the evidence of guilt, mental issues could be raised to mitigate the degree of culpability. Whether the plea is "guilty" or "not guilty," mental issues may well be raised in the sentencing phase. Thus a defendant's mental status can be used by the defense in several ways before, during, and after trial:
1. That he was incapable of making certain decisions before trial, such as knowingly consenting to a search, waiving counsel, or giving a statement.
2. That he is legally incompetent to stand trial.
3. As a defense to the crime charged.
4. As a partial defense to the crime charged, to reduce the degree of culpability.
5. As mitigation of the punishment to be imposed.
6. To influence the placement of the prisoner after imposition of punishment.
7. To prevent the defendant from being executed.
Because a mental health issue can affect so many stages of the proceedings, it is not surprising that such issues arise frequently in murder cases. In fact, if the murder case involves the death penalty, it is a virtual certainty that mental health will become an issue at some point in the trial process.
In this chapter we first explore the two primary types of mental health issues that are presented in criminal cases. Second, we investigate the mental health professionals and the way they are used in criminal proceedings, and we uncover the methods of how such professionals make reports and reach conclusions, both through examinations and tests. Third, we explore how these mental health issues play out in the trial process. Fourth, we discuss how conditions of extreme emotional disturbance can mitigate a verdict, and finally, we cover the execution of prisoners who have mental conditions.
There are generally two primary mental issues in criminal cases: competency to stand trial, a "here and now" issue; and mental health at the time of the commission of the crime, a "there and then" issue.
Competency to stand trial is a due process right guaranteed by the Constitution of the United States. Once the issue of competency is raised, the trial may not proceed until the issue is resolved. If the prosecution does not prevail on the issue, there is no trial.
The test for competency to stand trial under the federal constitution is set out in Dusky v. United States.1 The case is very short and deserves to be read. It holds that the "test [of competency] must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." Dusky is important for the standard it establishes, but the particular facts are of no special legal significance since it was decided on a confession of error and the Court simply quoted the Solicitor General's proposed standard. Nevertheless, if one wishes to understand the underlying facts, such as what Dusky was accused of doing, one really needs to read the lower court's opinion.2
There is not a one-to-one correlation between a diagnosis of any particular mental disorder and incompetency to stand trial. In fact, because competency to stand trial is a functional inquiry, a psychological or psychiatric diagnosis of a defendant is simply the threshold. Assuming a defendant has a mental disorder, the real issue becomes whether the mental disorder interferes with a defendant's ability to function in a legally significant way. To determine this, one should question whether the defendant's mental disorder results in either:
• The inability to have a rational and factual understanding of the proceedings or the punishment specified for the offense; or
• An inability to consult with counsel and participate in the proceedings with a reasonable degree of rational understanding.
In many cases, the key question is whether the defendant is unable, versus unwilling, to consult with counsel.
An issue of competency to stand trial can be raised at any time before or during the proceedings. Trial of an incompetent defendant would violate his right to due process. Any time there is a bona fide doubt about the competency of the defendant, the issue must be addressed.3 This is true even if the issue is raised during trial.4 If there is any doubt as to competence, the trial judge must sua sponte raise the issue.5
Most jurisdictions have statutes that provide procedures for competency inquiries.6 The statutes usually provide for a temporary commitment of the incompetent defendant for treatment to restore competency.7 The defendant cannot be held indefinitely, but only for a reasonable amount of time in order to restore competency.8 A "reasonable" amount of time is often defined by statute. Additionally, there are limits on the government's diagnostic and treatment options, particularly in the use of involuntary medications.9
In the federal system, determinations of competency to stand trial are governed by 18 U.S.C. §§ 4241 and 4247. The court, upon motion by either the prosecution or the defense, or sua sponte, may order either a psychiatric or a psychological examination of the defendant. The initial examination period is limited to 30 days and, for detained prisoners (most homicide defendants in the federal system are detained without bond), is usually conducted at a United States Bureau of Prisons (BOP) facility by BOP staff doctors. The selection of the facility that will conduct the examination is usually left to the discretion of the BOP.
Experience has shown that there are problems with this selection procedure, however. First, many BOP facilities have only psychologists on staff, not psychiatrists. It is only the BOP medical centers—such as Butner, North Carolina; Springfield, Missouri; and Rochester, New York—that have full psychiatric staffs on hand. Second, the examining psychologists at the smaller facilities might lean toward an initial opinion of incompetence, knowing that where a defendant is initially found to be incompetent, he will generally then be referred to one of the BOP medical centers for a four-month (or longer) period of testing, examination, and observation under 18 U.S.C. § 4241(d).
After the report is filed, the court will hold a hearing to determine whether the defendant is incompetent to stand trial. Section 4241(d) specifies that if there is an initial finding of incompetence to stand trial, the court may order a follow-on examination period (nearly always conducted at one of the BOP medical centers) to determine whether the defendant is likely to be restored to competency for trial. While this follow-on period is statutorily referred to as one for "restoration," it is not unusual for the more complete and more experienced staff at a BOP medical center to question the initial finding of incompetence. The doctors at a BOP medical center will, after all, have four times as long to observe the accused, and access to psychiatric testing and examination tools and techniques. A federal prosecutor faced with an order directing a competence examination of a defendant can ensure a complete medical center workup by one of two methods. First, where there is a history of brain or head trauma, or addiction to drugs or chemicals, the prosecutor may be able to persuade the judge to order both a psychological and a psychiatric examination to confirm or rule out any organic brain conditions affecting competency. Such an order would have the effect of forcing BOP to route the prisoner to a medical center for the initial examination period. Second, following any initial report finding the defendant to be incompetent, the prosecutor should request the four-month, follow-on examination provided for in Section 4241(d) at a medical center to see if the defendant may be "restored" to competency.
If an issue of competency to stand trial is litigated and the government prevails, the finding of competence may be raised on appeal after a conviction. If the appellate court concludes that the competency finding was wrong, the question arises whether the defendant can be simply reevaluated to determine if he was competent when the original trial was held. Under current U.S. Supreme Court case law, it appears that retrospective examinations of competency to stand trial are insufficient as a matter of law. The only relief available, if there is doubt whether the defendant was competent, is a new trial, preceded by a new competency examination prior to the new trial.10
There are other types of competency, such as competency to waive counsel, to give a statement, or to plead guilty. The U.S. Supreme Court has ruled that generally the standard for these competencies is the same as competency to stand trial. In other words, there is a single test and that is the Dusky test.11 However, in Indiana v. Edwards,12 the Court held that the "single test" for competency does not necessarily include competency to represent oneself. In that...
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