Disordered Mental State: Some Practical Advice
Notice of disordered mental state evidence must be filed whenever expert testimony will be used. However, notice need not be filed if expert testimony will not be used. ORS 161.309(2) and (3). Notice need not be specific and can be as simple as the following:
“Pursuant to ORS 161.300 and 161.309(2), defendant hereby serves notice on the state and the court that she intends to introduce expert testimony and other evidence that defendant suffers from a mental disease or defect. Such evidence will be relevant to the issue of whether defendant did or did not have the intent which is an element of the crime.”
Use of Experts
An expert is not a prerequisite to presenting disordered mental state evidence. Sometimes, it may even be more advantageous to simply present mental health history through friends, family, and caseworkers. However, defense counsel shouldn’t be afraid to use an expert simply because the expert is unable to conclusively state that the defendant lacked the capacity to form intent at the time of the crime. Since the state is required to prove what was in the defendant’s mind at the time of the alleged crime, testimony from an expert that it would be near impossible to determine exactly what was in the defendant’s mind at the time makes it even harder for the state to meet its burden of proof.
If the defense gives notice of intent to call an expert in support of a claim of mental disease or defect as required by ORS 161.309, then the state has the right to request an independent mental examination of the defendant under ORS 161.315. In order to exercise the right, the state must first “file notice with the court of its intention to have the defendant examined.” Once notice has been filed, the court “in its discretion” may order the defendant committed for up to 30 days.
The judge is not required to take the defendant into custody for a state evaluation. State v. Corbin, 15 Or App 536 (1973).
The defendant may object to the examiner chosen by the state. If the court believes there has been “good cause shown,” it may direct the state to choose another examiner. ORS 161.315. Even if an expert’s bias constitutes “good cause” under ORS. 161.315, where the defendant provides the court with no evidence to support his claim, the court may deny a defendant’s motion in objection to the state’s chosen expert. State v. Fulmer, 229 Or. App 386, 393 (2009)
Note that the state’s right to evaluation is only triggered by the defense’s intent to call an expert.
Understanding and Following Clark v. Arizona
In Clark v. Arizona, the United States Supreme Court addressed the issue of mental state evidence. This was the first time that the court addressed evidence of mental illness in the context of either the insanity defense or mens rea in over two decades. 548 US 735 (2006). The U.S. Supreme Court ruled that a state is allowed to channel mental health evidence into an insanity defense, but not all mental health evidence. According to the Court there are three types of evidence relevant to mens rea.
1) Observation Evidence
Observation evidence is “testimony from those who observed what the defendant did and heard what he said; this category would also include testimony that an expert might give about Clark’s tendency to think in a certain way and his behavioral characteristics. This evidence may support a professional diagnosis of mental disease and in any event is the kind of evidence that can be relevant to show what in fact was on Clark’s mind when he fired the gun. Observation evidence in the record covers Clark’s behavior at home and with friends, his expressions of belief around the time of the killing that “aliens” were inhabiting the bodies of local people (including government agents), his driving around the neighborhood before the police arrived, and so on. Contrary to the dissent’s characterization…observation evidence can be presented by either lay or expert witnesses.” Clark at 757-58
2) Mental-Disease Evidence
Mental disease evidence is “opinion testimony that Clark suffered from a mental disease with features described by the witness. As was true here, this evidence characteristically but not always comes from professional psychologists or psychiatrists who testify as expert witnesses and base their opinions in part on examination of a defendant, usually conducted after the events in question. The thrust of this evidence was that, based on factual reports, professional observations, and tests, Clark was psychotic at the time in question, with a condition that fell within the category of schizophrenia.” Id. at 758
3) Capacity Evidence
Capacity Evidence is evidence “about a defendant’s capacity for cognition and moral judgment (and ultimately also his capacity to form mens rea ). This, too, is opinion evidence. Here, as it usually does, this testimony came from the same experts and concentrated on those specific details of the mental condition that make the difference between sanity and insanity under the Arizona definition.” Id.
Defense attorneys in Oregon should strive to focus their disordered mental state cases on observation evidence. Drifting into general predictions from diagnosis opens the door for cross-examination on the impotency of psychiatric diagnosis. The particular diagnostic label is almost never necessary, or even helpful, to an argument related to mens rea, especially when compared to powerful evidence that establishes what it’s like to see the world through the defendant’s eyes.
References: Alexander Bassos, Mental Health and Criminal Defense (OCDLA 2010).