Select Page

Law and Psychiatry
University of Florida School of Law
Johnston, E. Lea

Law and Psychiatry

Fall 2012

Professor Johnston

· Responsibility/Volitional Control/Admissibility

§ U.S. v. Lewellyn (1983, pg. 450): At the time of this case the federal courts used the ALI test for volitional control, which is “lacking a substantial capacity to conform one’s conduct to the requirements of law.” Court wanted the ∆ to demonstrate a general acceptance in the fields of psychiatry and psychology of the principle that some pathological gamblers lack volitional control (Frye test).

§ Frye Standard: A court must decide what is being accepted, what community would have to have accepted (the whole mental health profession? A certain subgroup?), and what general acceptance really means.

§ Daubert Standard: 1) testimony is based on sufficient facts or data; 2) testimony is the product of reliable principles and methods; 3) the witness has applied the principles and methods reliably to the facts of the case.

§ FL Standard: General acceptance = clear majority of the members of the relevant scientific community. Also, FL uses the Frye standard (general acceptance) for the admissibility of expert psychiatric testimony of novel scientific evidence. (Hadden v. State).

· Propensity

§ Psychiatric testimony CAN be admitted to make a prediction of defendant’s propensity for future dangerousness. (Barefoot v. Estelle). The Court argued that future dangerousness had been used as a criterion for imposing the death penalty, so if lay jurors can give an opinion on it, of course expert psychiatrists should be able to.

Ø Dissent argues that psychiatrists are only right 1/3 of the time on future dangerousness, and that the jury will trust their opinion a lot more than they should when they don’t have that info. Even the APA disagreed with the notion that they could make accurate predictions of dangerousness. COUNTERPOINT: Newer studies show greater rates of correct prediction, and most ∆s found dangerous are put into situations where they can’t be violent, so using that as an indicator of a bad prediction isn’t fair.

· Implementing Expertise

§ Indigent ∆s are constitutionally via Due Process Clause entitled to the assistance of a psychiatric expert to conduct an examination and assist in evaluation, preparation, and presentation of the defense, when they have made a preliminary showing of insanity being a “significant factor at trial” or for rebuttal of the state’s case of dangerousness in capital sentencing. (Ake 1985, pg. 500).

§ See FL R. Crim. Procedure 3.216, 3.211

§ Competency Evaluations, pg. 511

Ø When a court orders a ∆ to undergo a competency evaluation, he can be compelled to answer questions for the sole purpose of deciding his competency, but those statements cannot then be used against him at a trial or sentencing hearing. Estelle v. Smith 1981, pg. 511. If he is adequately warned that his statements can be used against him, and consents to the evaluation under that understanding, they can.

Ø ∆s have a 6th amendment right to assistance of counsel before submitting to a pretrial psychiatric interview, but are not entitled to a lawyer during the interview itself. Estelle.

§ Sanity Evaluations, pg. 521

Ø Once a ∆ has given formal notice of asserting an insanity defense, the state may compel an evaluation of the defendant, with no right to remain silent. Pope v. U.S. pg. 521. The Court said the ∆ waived the right to remain silent by asserting the defense, and allowing the ∆ to remain silent would unfairly tip the “state-individual balance” in the ∆’s favor. As with competency, compelled sanity evaluations can only be used to speak to the ∆’s sanity, not any other issue.

Ø Sanctions for refusing to cooperate (pg. 524): (1) prohibiting ∆ from presenting insanity evidence; (2) allow ∆ to make the claim, but prohibit use of expert testimony to support it; (3) allow ∆ to present clinical testimony, but only that which is based on evidence that was also revealed to the state’s expert (when there was partial disclosure); (4) allowed the ∆ to present unrestricted clinical testimony, but allow the prosecution to comment to the fact finder on the ∆’s refusal to cooperate.

§ Evidentiary Issues

Ø Experts may use any information in forming their opinion that experts in their field can reasonably rely on, regardless of the admissibility in court of such evidence; e.g. experts can base their opinion on hearsay.

Ø Ultimate Issue: Expert witnesses cannot testify to the mental state or condition of a ∆ in a criminal case, as to whether or not the defendant had the mental state or condition constituting an element of the crime or a defense of the crime. Fed. R. Crim. Pro. 704. Also see U.S. v. Edwards, pg. 534. Experts can come pretty close to testifying to a UI. An Ultimate Conclusion is one that directly addresses the dispositive legal issue, e.g. whether a person is competent or sane or committable.

Ø See Fed. R. Evid 703, 704 and Fl

r and convincing evidence.

§ Consequences of Insanity Acquittal: Most states confine insanity acquittees for as long as they remain mentally ill or dangerous.

§ Usage of the defense: Insanity defense is really only used in about 1% of cases and is only successful about 1% of the time.


Ø The Heads Case: ∆ made a showing of insanity due to PTSD, and was acquitted on retrial.

Ø What mental diseases or defects qualify is unclear, but it seems if it appears in the DSM it probably will (absent personality disorders) if it sufficiently trustworthy. The federal statute limits it to “severe” disorders, which means usually only psychotic disorders qualify in federal courts.

Ø There does not seem to be any appreciable difference between tests that use “know” and tests that use “appreciate.” Need lack of rationality.

Ø States are divided evenly on whether the defendant must not know his offense his morally wrong or legally wrong. For morally wrong, if a defendant’s delusion would justify his act legally (delusion that victim was trying to kill him, e.g.), then he would qualify for insanity acquittal.

Ø Deific Decree: Recognizes an insanity defense when the ∆ has a delusion of God telling him to do whatever offense he committed. Not recognized by all states. Cardozo: “if … there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, … it cannot be said of the offender that he knows the act to be wrong even though he knows that it is illegal.”


Ø This is the “irresistible impulse” prong. Relies on the idea that the ∆’s actions are due to impulses and factors outside his control. This test is criticized for this very reason, because it could be said all criminals are affected by factors outside their control, both internal and external.

Ø To show volitional impairment, however, one must show more than causation from some factor; one must show a compulsion caused by some mental disorder.