Rehabilitating mental disorder evidence after Clark v. Arizona: of burdens, presumptions, and the right to raise reasonable doubt.

• Author: Klein, Dora W.

INTRODUCTION

A criminal trial is many things: (1) a quest for truth, (2) a moral drama, (3) a means of averting escalating cycles of private vengeance. (4) At its procedural core, though, a criminal trial is the defendant's constitutionally prescribed opportunity (5) to "test the prosecution's case"--that is, to evaluate and to challenge the prosecution's evidence against the defendant. (6) At trial, the defendant is presumed innocent, and this presumption is overcome only if the prosecution proves every element of the charged offense beyond a reasonable doubt. (7)

The right not to be found guilty of a crime absent proof beyond a reasonable doubt is a powerful right. (8) It can be undermined, however, by rules that at first seem to have little to do with reasonable doubt or with burdens of proof. For example, a rule that limits the admissibility of a certain kind of defense evidence might appear only to implicate questions about a state's authority to enact rules governing the presentation of evidence at criminal trials--an authority that the states generally possess. (9) But rules that prohibit criminal defendants from presenting evidence might effectively, even if inadvertently, lessen the prosecution's burden and allow for guilty verdicts on the basis of proof less than beyond a reasonable doubt. (10)

In the recent case of Clark v. Arizona, (11) the Supreme Court considered whether states may enact rules that categorically prohibit criminal defendants from offering mental disorder evidence for the purpose of raising reasonable doubt regarding the mens rea element of a charged offense. (12) Arizona law allows criminal defendants to present mental disorder evidence only for the purpose of proving insanity; it prohibits other uses of such evidence by criminal defendants, (13) A defendant can be found "guilty except insane" (Arizona's version of an insanity verdict (14)) if he establishes, by clear and convincing proof, that at the time he committed an offense, he did not know that his actions were wrong. (15) Mental disorder evidence is inadmissible for the purpose of disproving mens rea unless a defendant is pleading insanity, and mental disorder evidence that is admissible but insufficient to meet the burden of proving insanity-yet is sufficient to raise reasonable doubt about mens rea--simply has no effect. (16)

That Arizona prohibits defendants from using mental disorder evidence to raise reasonable doubt about mens rea means that the prosecution's burden of proof is effectively lessened. While the jury must still decide whether the prosecution's evidence proves the elements of the charged offense beyond a reasonable doubt, the jury will make this decision on the basis of the prosecution's evidence as presented by the prosecution and not on the basis of the prosecution's evidence as challenged by the defense's evidence. (17) The Supreme Court in Clark acknowledged that Arizona's rule potentially denies criminal defendants the right to test the prosecution's case. (18) But the Court seemed determined not to conclude that Arizona's rule is unconstitutional, first characterizing the effect of the rule as the "channeling" of evidence rather than the excluding of evidence, (19) and then finding that this "channeling" did not violate the defendant's right to raise a reasonable doubt because Arizona has "good enough" reasons for limiting the presentation of mental disorder evidence. (20)

Most states do not have special rules regarding criminal defendants' presentation of mental disorder evidence. (21) In these states, defendants may offer mental disorder evidence for either or both of two purposes: to prove insanity and to raise reasonable doubt about mens rea. About a dozen states, however, have rules like Arizona's--rules that prohibit criminal defendants from offering mental disorder evidence to raise reasonable doubt about mens rea. (22) The purpose of this Article is to review the scope of problems that such rules cause. Part I of this Article presents an overview of Clark v. Arizona, including a discussion of the evidence that the defendant sought to present to raise reasonable doubt and of the trial court's decision to exclude that evidence. Part II reviews the principles that govern a criminal defendant's fight to present evidence. As a general rule, in our system of justice more evidence is preferred to less. This preference is reflected in many federal and state rules of evidence and in the constitutional limitations on the power to enact rules of evidence that effectively deny criminal defendants a fair trial. Part III focuses on mental disorder evidence, identifying two generally helpful and trustworthy categories of evidence: evidence that presents factual information about a mental illness and evidence that describes a defendant's pre-offense history of a mental illness. Finally, Part IV examines a defendant's fight to raise reasonable doubt in relation to states' rights to adopt a presumption of sanity and to define (or redefine) elements of criminal offenses. The Article concludes that because rules like Arizona's prohibit, for insufficient reasons, criminal defendants from presenting evidence that is helpful and trustworthy, such rules threaten the fight to present a meaningful defense.

1. CLARK V. ARIZONA

   Eric Clark was charged with first-degree murder for shooting and killing police officer Jeffrey Moritz. (23) Clark conceded that he killed a police officer but argued that he was not guilty of first-degree murder, which requires that the killing of the officer have been intentional or knowing, because at the time he shot Moritz, he believed Moritz was an alien. (24) Witnesses testifying for both the defense and the prosecution agreed that Clark suffered from schizophrenia. (25) Clark's parents and friends reported that in the months preceding the shooting, Clark talked a great deal about people becoming aliens. (26) They also reported that Clark's behavior had become increasingly bizarre--he had strung wire across his bedroom to catch intruders, for example, and he kept a bird in his car to detect airborne poisons. (27)

   At his bench trial, Clark sought to introduce evidence of mental disorder for the purpose of supporting two claims: the claim that because Clark thought Moritz was an alien, he did not know that shooting him was wrong; (28) and the claim that because he thought Moritz was an alien, he did not intentionally or knowingly shoot a police officer. (29) The trial judge allowed the evidence in support of the affirmative defense of insanity but not in support of the second defense, (30) which Arizona regrettably (31) calls the "defense of diminished capacity." (32) In ruling that Clark could not present mental disorder evidence in support of his claim that he did not intentionally or knowingly kill a police officer, the trial judge determined that Arizona law prohibits criminal defendants from presenting mental disorder evidence for the purpose of disproving mens rea. (33) After finding that Clark had not proven insanity by clear and convincing evidence, the trial judge ruled that Clark was guilty of first-degree murder for intentionally or knowingly killing a police officer. (34)

   Clark is an unusual case because Clark's "diminished capacity defense" overlapped with his insanity defense. (35) If Clark's insanity defense had succeeded, it would have been because the judge, as fact-finder, concluded that Clark did not know that what he was doing was wrong--that is, that Clark believed that he was shooting an alien and not a police officer. It is possible to think that because Clark's insanity defense did not succeed, his "diminished capacity defense" could not have succeeded either. Clark was able to present lay and expert testimony about his mental illness in support of an insanity defense, so whatever evidence Clark was unable to present in support of his "diminished capacity defense" did not alter the outcome of his trial. (36) Even if the judge had considered the mental disorder evidence in support of Clark's "diminished capacity defense," the result could not have been any different, because for the "diminished capacity defense" to have succeeded, the judge would have had to conclude that Clark did not know that he was shooting a police officer--the very conclusion the judge rejected in deciding that Clark was not insane.

   The problem with this analysis is that it overlooks the two defenses' different burdens of proof. In order to be found insane, Clark needed to present clear and convincing evidence that at the time he shot Officer Moritz, he believed the officer was an alien. (37) In order to be found not guilty because the prosecution did not prove the mens rea element of "intentionally or knowingly" beyond a reasonable doubt, Clark needed only to present evidence that was sufficient to raise a reasonable doubt. (38) The trial court's guilty verdict says that Clark did not present clear and convincing evidence, but the verdict does not say anything at all about whether Clark's evidence would have created reasonable doubt had he been allowed to present it for that purpose.

   Arizona's law allowing criminal defendants to present mental disorder evidence only for the purpose of proving insanity is contrary to the most basic principles of our system of justice. It prohibits criminal defendants from presenting a whole category of important evidence, while imposing no similar prohibition on the prosecution. And it lessens the prosecution's burden of proof by limiting the defendant's ability to challenge the prosecution's evidence, thereby denying the defendant the right to be found guilty of a crime only upon proof beyond a reasonable doubt.

2. THE RIGHT TO RAISE REASONABLE DOUBT

   1. In re Winship: The Reasonable Doubt Rule

      Although the precise origins are unclear, the roots of the rule that criminal convictions require proof beyond a reasonable doubt extend back at least...