Is the shrink's role shrinking? The ambiguity of Federal Rule of Criminal Procedure 12.2 concerning government psychiatric testimony in negativing cases.

• Author: Cochran, R. Gregory

INTRODUCTION

Federal Rule of Criminal Procedure 12.2 requires a defendant to notify the government and the court if she intends either to rely on a full-fledged insanity defense(1) or simply to use expert testimony about her mental condition(2) as it relates to the issue of guilt.(3) Legal scholars refer to this use of expert testimony as a "negativing"(4) defense because its purpose is to use mental abnormality evidence to negate or negative the mens rea element of the crime charged.(5) Rule 12.2 also authorizes the court to compel a defendant asserting insanity to be examined by a government psychiatrist or psychologist.(6) The rule is ambiguous, however, regarding whether the court may similarly compel an examination of a negativing defendant.(7) The courts have interpreted the wording of Rule 12.2 inconsistently regarding this issue,(8) Courts that have read the rule to not require a negativing defendant to undergo a government psychiatric examination,(9) however, have often found the "inherent authority" to order at least some form of examination of a negativing defendant,(10) The result is that the government, in most cases, is allowed to examine the negativing defendant, although perhaps not as extensively as it would be allowed in the insanity context.

Compelling a criminal defendant who offers either an insanity or a negativing defense to undergo a psychiatric examination by the government raises significant constitutional and practical concerns.(11) For example, Rule 12.2 provides that the information gained by the government during such an examination may only be used "on an issue respecting mental condition on which the defendant has introduced testimony."(12) Real concerns arise, however, about how the government nonetheless might be able to use this information improperly and bolster its case. Furthermore, since the rule is unclear as to whether such an examination is required in the negativing context, naturally it is also unclear about the specific type of examination that might be allowed: a lengthy custodial inpatient examination, a brief outpatient interview, or something in between.(13)

In order to frame more clearly the practical and constitutional implications of mandatory government psychiatric examinations in the context of a negativing defendant, Part I of this Comment presents a hypothetical defendant with psychiatric problems who faces a federal first-degree murder charge and the death penalty.

Part II then examines the statutory interpretation of Rule 12.2(c) by several United States courts of appeals that have analyzed this issue. Part II also explores how these courts have treated the inherent authority issue and concludes, through the examination of a recent federal trial court case, that courts do have the inherent authority to order a government psychiatric examination of a negativing defendant. This determination supports the overall conclusion of this Comment that Rule 12.2 should be changed to allow explicitly a government psychiatrist to examine a negativing defendant.

Part III then reviews the constitutional issues that arise in authorizing the government to examine the negativing defendant--whether that authority is by virtue of Rule 12.2(c) or by virtue of the court's inherent authority to do so. This Part asserts that if the government uses a psychiatrist's testimony, it must be limited--as the rule currently provides--to a rebuttal of the defense psychiatrist's testimony. This Part concludes, though, that Rule 12.2 should go further in prohibiting the government from using evidence derived from the psychiatric examination to strengthen its case. The Rule should preclude the government psychiatrist from asking the defendant specific questions about prior criminal history if the defense examiner initially did not ask these questions. Part III also suggests that, although videotaping is preferable, at a minimum, the government should make a transcript of the examination available to the defense.

Part IV briefly examines some of the practical implications of the conflicting interpretations of Rule 12.2(c), including issues impacting the discovery process. This Part concludes that these considerations also support a revision of the rule that explicitly would allow the government to perform a psychiatric examination of negativing defendants with appropriate constitutional safeguards.

Finally, taking these conclusions into account, Part V offers a revision of Rule 12.2 that attempts to maximize the defendant's constitutional protections as well as the State's interest in prosecuting its case.

1. AN ILLUSTRATION OF THE IMPLICATIONS OF RULE 12.2'S AMBIGUITY

   A. A Hypothetical(14)

   John Barleycorn tells a very sad story. Raised in an alcoholic family and physically and sexually abused regularly by both of his parents, John, now twenty-eight years old, is a full-fledged alcoholic himself. Although he managed to get through college, marry, and have two children, lately John has been unable to hold down a job for more than a few weeks at a time. He has been hospitalized four times in the past year for alcoholism-related medical conditions, and his wife and children have recently left him because of his drinking. John has been through two inpatient and three outpatient alcoholism rehabilitation programs and has attended meetings of Alcoholics Anonymous on occasion but feels that his case is a "lost cause." He just cannot seem to stop drinking.

   One night six months ago, just after his family left him, John went on a drinking binge to end all drinking binges. As is usual for John, he went into a blackout and has no memory whatsoever of the evening's events after about his third drink at the local pub. He "came to" Saturday morning in the county jail, finding that he had been arrested for, among other things, first-degree murder. The police informed him that he drove his car into a crowded, upscale outdoor cafe, killing three people, including the Japanese ambassador to the United States. While speeding toward the cafe, witnesses heard John yelling out the car window, "Die and go to hell all you yuppies!". The government prosecutors intend to seek the death penalty. John will be tried in federal court because of the involvement of the foreign dignitary.(15)

   In addition to the rehabilitation programs, John has sought the help of a psychiatrist, Dr. Bill Wilson, several times in the past few years. Dr. Wilson believes that John suffers not only from alcoholism, but also from post-traumatic stress disorder as a result of his abusive childhood, as well as major depression and generalized anxiety disorder.

   Although quite sure that the evidence will not support an outright insanity defense,(16) John's attorney, Maria Fuentes, does believe that evidence of John's mental abnormalities will be helpful to his case. She believes, and Dr. Wilson confirms, that John's mental condition combined with his intoxication precluded him from being able to form the required mens rea for first-degree murder that night.(17) Unlike the insanity defense--which is difficult to prove and rarely successful(18)--a negativing defense such as diminished capacity, in jurisdictions where it is allowed, is more likely to help a defendant who has slim chances of acquittal to obtain a conviction on a less serious charge, such as second-degree murder or manslaughter.(19) Because the federal courts allow admission of negativing evidence, Maria has given notice to the court and to the government pursuant to Federal Rule of Criminal Procedure 12.2(b) of her intent to introduce psychiatric testimony as evidence of John's mental abnormality in an attempt to negative his mens rea at the time of the killing.(20) In response, the government's prosecutor has moved the trial court to allow the State to perform its own psychiatric examination of John pursuant to Rule 12.2(c).(21)

   B. Unresolved Issues Raised by the Hypothetical

   When reviewing Rule 12.2(c) of the Federal Rules of Criminal Procedure,(22) Maria Fuentes notices that it allows the court, "[i]n an appropriate case," to order a government psychiatric examination, but that it does not, on its face, distinguish between the insanity defense and the negativing defenses.(23) She sees that the rule authorizes the court to "order the defendant to submit to an examination pursuant to 18 U.S.C. [[sections]] 4241 or [[sections]] 4242."(24) Maria then learns that 18 U.S.C. [subsections] 4241 and 4242 are statutes that pertain to competency to stand trial and the insanity defense, respectively, and that they make no reference to negativing defenses.(25)

   We should pause to ask why a defense attorney handling a negativing case--aside from fearing that the government psychiatrist might testify adversely to her client--should be concerned that a pretrial psychiatric examination of her client may increase the likelihood of either a guilty verdict or the death penalty.(26) One concern is that during the pretrial psychiatric examination of a defendant, the government psychiatrist may learn information from the defendant about his prior conduct that was previously inaccessible to the prosecution.(27) Furthermore, the government may use this information to increase the likelihood of a higher-grade conviction or the death penalty, even if the psychiatrist does not testify.(28) In this hypothetical, Maria Fuentes fears that the government's psychiatrist may, on the basis of his or her examination, ultimately testify adversely to John Barleycorn. She believes, however, that given its ambiguity, Rule 12.2 should permit the court to compel such an examination only when the defendant is relying on the insanity defense.

   Rule 12.2 raises some unresolved issues.(29) For example, as Maria Fuentes discovered, 18 U.S.C. [sections] 4242(a) requires "the court to order that the defendant undergo a psychiatric or psychological examination once the defendant has filed a Rule 12.2 notice of intent...