If nothing else, the interaction between the criminal courtroom and the mental health profession has produced some memorable nomenclature. "The abuse excuse,"(1) "battered woman syndrome,"(2) "child sexual abuse accommodation syndrome,"(3) "false memory syndrome,"(4) "television intoxication,"(5) "urban survival syndrome,"(6) "XYY chromosome abnormality"(7)--these are just a few of the colorful appellations used to describe claims that mental health professionals have bolstered with their testimony over the years.(8) From reading the popular press, one could easily come to the conclusion that such testimony is spurious "psychobabble" that will eventually swallow up our justice system.(9) Even a more tempered observer is likely to wonder whether this type of opinion evidence is worthy of consideration in courts of law. That is the primary question this Article seeks to address.(10)
This Article begins, in Part I, with a brief review of the past four decades(11) of psychiatric and psychological testimony in criminal trials (henceforth referred to simply as "psychiatric testimony"). Although this review cannot be called comprehensive,(12) it does make clear that, contrary to what the popular literature would have us believe, psychiatric innovation is neither at an all time high nor the prevalent form of opinion testimony by mental health professionals. At the same time, such "nontraditional" expert opinion from clinicians, on those rare occasions when it does occur, has changed over the past few decades in both content and objective.
Part II canvasses historical developments in the law governing the admissibility of psychiatric testimony. With the Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceuticals,(13) this law has undergone a metamorphosis, at least on the surface. What is also clear, however, is that evidentiary changes have not, to date, affected the admissibility of most psychiatric testimony. Traditional psychiatric testimony continues to be admitted regardless of its reliability. Further, while novel psychiatric testimony is usually subjected to Daubert-type or other screening tests, the continuing ambiguity of these tests means that nontraditional evidence is still admitted, excluded, or limited in its scope for reasons that are not always immediately apparent. A better method of parsing out truly "junk" testimony is needed.
Part III offers ways of improving the evidentiary analysis. A good framework for such analysis already exists--under the Federal Rules of Evidence, the admissibility of any expert testimony hinges on its materiality, probative value, helpfulness, and understandability.(14) Most courts, however, perhaps not attuned to the subtly different versions of behavioral "science," could benefit from an elaboration of this framework as it applies to psychiatric testimony.
The most important contention in Part III concerns the assessment of probative value. The thesis here is that a distinction should be made between psychiatric evidence presented to prove past mental state and psychiatric evidence proffered to prove acts. Given the difficulty, in theory and in practice, of proving past mental state,(15) the reliability assessment that is part of gauging probative value should be less demanding for psychiatric evidence on this issue. At the same time, psychiatric testimony that focuses on whether an act occurred--an objective and scientifically verifiable fact--should have to meet a more stringent test. In short, assessment of probative value should take into account the extent to which accuracy is possible.
Part III also makes suggestions aimed at improving analysis of the other three components of the admissibility framework: materiality, helpfulness, and countervailing factors. First, courts should pay much closer attention to the substantive scope of the law governing mental state defenses, a move that should curtail some of the more outlandish claims. At the same time, the law should define the helpfulness inquiry in broad terms, focusing on the extent to which psychiatric evidence offers counterintuitive explanations. Finally, courts must consider whether the evidence will be subject to adversarial testing, given the importance of ensuring the evidence is understood for its actual worth.
Part IV concludes the Article with a discussion of an interesting implication of the foregoing arguments: the ultimate impact of the proposed framework is to allow criminal defendants more leeway than the government in presenting psychiatric evidence. Part IV briefly presents two normative justifications for this outcome, the first derived from the constitutional right to present a defense and the second based on utilitarian concerns about what would happen if that right were seriously abridged. Taken together, the arguments made in this Article suggest that suspect psychiatric science has a role to play in the criminal courtroom, but normally only when it supports claims concerning the past mental state of a defendant.
AN OVERVIEW OF PSYCHIATRIC TESTIMONY
Any attempt to assess the admissibility of psychiatric evidence must begin with some understanding of its nature and scope. It also should be informed by some knowledge of the wide range of legal issues such evidence might purport to address. The following discussion examines these two topics from an historical perspective.
Types of Psychiatric Testimony
Psychiatric testimony comes in all shapes and sizes. Particularly conspicuous these days is so-called "syndrome testimony." For instance, the battered woman syndrome (BWS) describes the state of "learned helplessness" allegedly visited on women who suffer through cyclical battering from their spouse or significant other.(16) It has been used to support a defense of insanity, provocation, or self-defense.(17) The child sexual abuse accommodation syndrome (CSAAS)(18) and the rape trauma syndrome (RTS)(19) purport to identify psychological symptoms experienced by people who have been subjected to sexual abuse, and are relied upon by prosecutors to bolster testimony by victims whose injuries are otherwise hard to discern.(20) The "Vietnam veteran syndrome," like the three syndromes just discussed, is an application of the post-traumatic stress disorder diagnosis, this time to those who experienced the trauma of war.(21) It is usually introduced in insanity cases to support the argument that the defendant experienced a "flashback" to his war days at the time of the crime.(22)
Other types of syndrome testimony are less common, but no less familiar to those who peruse the media. "Urban survival syndrome," which posits that black ghetto youth are also in a "war zone"--an urban one that makes them particularly fearful of other black youths--recently received considerable publicity even though it has been advanced in only one case to date.(23) Also rare, but particularly controversial, are prosecutions for decades-old child abuse(24) bolstered by psychiatric evidence that people can repress memories and then "discover" them years later;(25) these claims may be rebutted by what has been called the "false memory syndrome."(26)
With such a wide array of new and sometimes bizarre-sounding psychiatric claims finding their way into criminal trials, it is no wonder that many commentators charge that modern-day psychiatric testimony often appears to be made-to-order junk science unfit for a court proceeding.(27) Part III of this Article addresses the legal ramifications of these challenges. For now, a few observations about the nature of psychiatric testimony will help to put them in perspective.
First, and most importantly, the bulk of criminal trials in which mental health professionals testify do not involve any of these dramatic claims. Rather, the typical expert psychiatric opinion is rather humdrum, usually concerning whether the defendant was evidencing symptoms of schizophrenia, manic-depressive psychosis, antisocial personality, schizoid personality, or some other traditional diagnosis.(28) The battles of the experts, if they occur at all, are over whether the defendant fits into diagnostic categories that have been well-established for decades.(29) Rare is the forensic professional who has ever offered syndrome or other "novel" opinion testimony.(30)
A related observation is that, contrary to the innuendo of the anti-junk science literature and the press, psychiatric innovation in criminal cases is not at an all-time high. Twenty years ago, the psycho-legal landscape was no less dotted with gaudy claims. In the 1970s, defendants based exculpatory defenses on "television intoxication,"(31) cultural upbringing,(32) "brainwashing,"(33) "rotten social background,"(34) and the possession of an extra Y chromosome.(35) Going back even further, a number of criminal defendants in the 1960s relied on claims of multiple personality disorder,(36) psychic disintegration,"(37) and other manifestations of the unconscious.(38)
At the same time, the nature of nontraditional testimony does seem to have changed at the margins over the past few decades in at least three ways. First, such testimony is more likely to be explicitly nomothetic, as opposed to idiopathic, in nature. Instead of individualized descriptions based on an intimate interview with the subject of the testimony, which was the usual fare twenty-five years ago, the newer brand of nontraditional evidence tends to rely on off-the-rack data or impressions about a group of people, presented by an expert who may never have seen the defendant or witness to whom it is applied,(39) John Monahan and Larry Walker have called this type of testimony "social framework evidence,"(40) because it provides only background information that must then be tied into the case at hand by other submissions. For instance, framework testimony in a child abuse case might describe the typical psychological characteristics of a victim of...