Authors' Note

In this article, we will attempt to provide a general framework for developing and presenting mental health evidence in criminal cases. It is intended to complement "The Elements of a Competent and Reliable Mental Health Examination,¹which described a process for acquiring an accurate assessment of a client's mental condition and set mental health issues within the constitutional framework. We suggest you read that article carefully. It provides suggestions for obtaining a favorable mental health evaluation in the first instance. Obviously, without a favorable evaluation, there will be little mental health evidence to present. The suggestions in both articles are widely applicable to criminal defense and, in our view, are specifically relevant to death penalty cases where the development and presentation of mental health evidence are frequently the difference between life and death.

Introduction

Mentally disordered clients can be challenging, their crimes bizarre, their lives tragic and their illnesses difficult to convey. To address mental health issues competently and effectively, defense counsel must understand the wide range of mental health issues relevant to criminal cases, recognize and identify the multitude of symptoms that may be exhibited by our clients, and be familiar with how mental health experts arrive at diagnoses and determine how the client's mental illness influenced his behavior at the time of the offense. Without this knowledge, it is impossible to advocate effectively for a mentally ill client or to overcome jurors' cynicism about mental health issues. We believe juror skepticism often reflects inadequate development and ineffective presentation rather than a biased refusal to appreciate the tragic consequences of mental illness.

For our purposes, the term "mental health issues" encompasses the diagnosis and treatment of mental illnesses and mental retardation. The information in this article will be useful in all of those areas but it predominantly offers guidance in litigating cases involving mental illness. (Substance abuse and addiction are recognized as a forms of mental illness but they are complex subjects that are beyond the scope of this article. However, since a great deal of substance abuse has its origins in clients' efforts to self medicate and quell the disturbing symptoms of mental illness, it behooves counsel to recognize and understand the mental illnesses that underlie addition.)

Obviously, all of the steps discussed in this article must be adjusted to the particular client and the facts of the case. However, even though every case is unique, we believe there are four principles that must be applied to the development and presentation of mental health evidence in all cases, especially those involving the death penalty. Conveniently, they all start with the letter C.

There are no shortcuts to developing and presenting mental health evidence effectively in a criminal case. You must build a theory of defense based upon evidence that is credible, comprehensive, consistent and comprehensible. These principles must not be compromised at any stage of litigation. We encourage you to constantly evaluate your evidence and your advocacy in light of these "4 Cs".

1. Is your evidence CREDIBLE? Have you supported your theory with a thorough life history investigation, life history documents, lay witnesses and expert witnesses?

2. Is your evidence COMPREHENSIVE? Have you applied your evidence of mental health issues at every stage of litigation, including your relationship and meetings with your client, every motion, court appearance and meeting with the government?

Learn About Mental Health Issues. Once you have a working knowledge of several fundamental precepts of mental health issues and mentally ill clients, you will be able to develop and present credible evidence to the jury. You can convince jurors to walk a mile in the defendant's shoes if you have learned everything you can about your client's mental illness and its role in a tragic crime. Armed with the insight and empathy that knowledge brings, you can convincingly convey mental illnesses as involuntary impairments that affect the simplest aspects of ordinary life. There is no shortcut to being a persuasive advocate for a mentally ill criminal defendant.

To adequately represent a mentally ill client, every member of the defense team must become a student of mental health issues. Initially, this includes acquiring a general understanding as well as specific knowledge of the defendant's past and present mental illness(es) before determining how to litigate the case and mastering a new vocabulary that will allow you to present complicated medical and psychological issues in a comprehensible manner to the judge and to each individual on the jury. Excellent starting places are the web sites for National Institute of Mental Health and National Alliance for the Mentally Ill², where you will find plain language descriptions of mental illnesses as well as links to journals, studies and other helpful web sites. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)³, published by The American Psychiatric Association, and Comprehensive Textbook of Psychiatry⁴ by Kaplan and Saddock are essential references for understanding mental health issues. Most cases will require additional particularized research. Web sites for every major mental disorder will give you a basic introduction to the nature and impact of your clients' impairments.

Identify Mental Health Issues

Accurate identification and meticulous documentation of your client's mental health issues are necessary steps to building credible evidence.

Look for Indications of Mental Illness. Determining whether your client suffers from a mental disorder and, if so, the severity of the illness, is a complex process. A frequent and unfortunate assumption is that a difficult client is rude, suspicious, unhelpful or manipulative by choice. A client with a history of disagreeable, irrational or foolish behavior may be mentally ill or mentally retarded rather than simply bad company. Your client's behavior is a vital clue to his mental status. When objectively assessed, such behavior may, in fact, be found to be symptomatic of a mental disorder or deficits.⁵

Keep in mind that symptoms of mental illnesses wax and wane so that even severely psychotic patients can intermittently appear normal. Conversely, overt signs that a defendant is psychotic - people who are out of touch with reality - can be overlooked even by a trained professional performing a cursory mental status examination. How your client appears when you first meet him may have no bearing on his behavior at the time of an alleged offense. While the rules and regulations of jail are an aggravation to you, the institutional structure and regularity may actually be therapeutic for a mentally ill defendant, especially if his mental illness is exacerbated by alcohol or if he is regularly receiving appropriate medication for his mental illness.

All these variables mean that the defense team must meet with the client over time and under different conditions to get an accurate picture of his behavior and capabilities. It is most likely that your client and his family will reveal symptoms of mental illness to you only after you have built a trusting relationship them. Keep in mind that the client and his family may not have been previously exposed to mental health experts or the process of a mental health evaluation. Reassure them that the mental health experts are there to assist the defense. In addition to family members, any person who has had an ongoing relationship with the individual, can be a source of invaluable information about the characteristics and progression of your client's behavior and his state of mind at the time of the offense.

Look for Evidence of Mental Health Issues. A thorough inquiry into all the circumstances of your client's life is always the necessary first step in identifying mental health issues. The product of this inquiry, a social history, is an organized, written presentation that puts into context every event, person, institution and environment -- often going back several generations -- that has had an impact on the defendant. The social history presents a family's genetic history and vulnerabilities to mental illness as well as a description of family patterns of behavior. It is usually prepared by a specially trained investigator who is experienced in gathering documents and conducting interviews that form the basis of the psycho-social history.

Gather All Documents Related to Your Client and His Mental Condition. In all criminal cases, any document potentially bearing social history information about the client may be significant. That is why you need to get them all. It's like panning for gold -- you gather all available material, then meticulously sift through it for the valuable parts. Important clues about your client may be found in records regarding birth and death, school, marriage, social services, military service, employment, and medical treatment, among others. This is especially true when the client or his family is known or suspected to suffer from mental illness. In our experience, it is common to find evidence of mental illness dating back several generations. The investigative net necessarily widens when interviews or documents reveal that earlier generations or members of the larger family have exhibited signs of mental disorder. Continue to expand the investigation exhaustively so long as you find family members who have documented mental health issues. Such records shed invaluable light on your client's mental health history and demonstrate that the mental condition was a significant factor in your client's life long before the offense that brought him into the criminal justice system.

Talk to Everyone Who Has Known the Client Over Time. Interviews are the other major tool, in addition to documents, used to compile an accurate social history. Keep in mind that most people consider mental handicaps shameful and may be reluctant to reveal any signs of mental trouble. Like the client, they may think they are being helpful by minimizing, normalizing or rationalizing signs of mental illness in the defendant and his family. In some instances, they may not be candid because they want to cover up their own misdeeds, e.g., acts of physical or sexual abuse. These factors help us to understand and explain why many severely mentally handicapped defendants remain completely unidentified as such in the criminal justice system. Recognize that the tendency of a client's family and friends to minimize, normalize or deny mental illness is a barrier to achieving a reliable social history. The necessity of overcoming this hurdle is the main reason you must carefully select a social history investigator who has the ability to probe these matters with sensitivity and respectful perseverance. It also makes it critical to interview people such as neighbors, ministers and teachers who are outside the client's intimate circle of family and friends, so you get a picture of the client's life that is both broad and richly detailed.

Take Another Look at Labels Attached to Your Client. "He's not crazy, he's just mean!" How often have you heard that assessment? Too often you've probably heard it from defense lawyers. A kinder but equally ineffective lawyer may conclude, "I talked to him, and he seems pretty bright to me" or "He's a drug addict, but I don't think he has any major mental illnesses." Learn to be skeptical of pejorative terms such as "sociopath," "cold," "manipulative" or "street smart" that normalize abnormal behavior. In our experience, our clients are good at hiding their mental illness. In fact, they often have years of experience "passing" as normal. Further, because of the stigma attached to mental illness, many mentally ill people find it less dangerous to be considered "bad" rather than "mad." Combinations of mental illnesses are common: mental health professionals refer to a "dual diagnosis" or "multiple diagnosis" to indicate a person who simultaneously suffers from more than one mental disorder.

Poor people with limited access to mental health treatment often use alcohol or drugs as a means of self-medication to treat disturbing symptoms of mental disease. However, it is important to remember that intoxication often occurs because of, and in conjunction with, other mental illnesses. We have represented such people. This type of defendant is likely to be inaccurately labeled as a drug addict with a disagreeable and mistrustful personality, rather than a paranoid schizophrenic who has tried to control intolerable auditory hallucinations with drugs and alcohol. Never assume that substance abuse rules out additional mental illness or mental retardation. They often co-exist.

Recently, as government programs have increasingly failed to provide needed residential care and treatment, we see the criminalization of the mentally ill. De-institutionalization and severe restrictions on community based programs have resulted in is a growing number of mentally ill criminal defendants, many of whom are charged with violent crimes. Even though properly treated mentally ill persons are no more violent than the general population, untreated or improperly medicated illnesses can contribute to tragic and avoidable offenses.⁶ Consequently, the mental illnesses of many criminal defendants are often overlooked, making it imperative that you consider whether mental health issues are present in every defendant you represent. In many cases, they will be. Many mental illnesses have a gradual onset, making it even more important to acquire an accurate social history. Sometimes early warning signs can be identified as far back as elementary school. New research into paranoid schizophrenia, long thought to first appear in early adulthood, has identified subtle symptoms that were, in fact, present in children and adolescents.⁷ Tragically, a number of these kids were labeled "behavior disordered" and considered to be a problem rather than to have a problem of mental illness.

Sexualized or aggressive behavior in your client's childhood history should always raise your suspicions. Clients who have suffered sexual abuse may have been described as "inappropriately knowledgeable about sex" or as "sexually forward." Children who were physically abused may have been called bullies themselves. Don't accept pejorative labels without looking deeper.

Secure Expert Assistance. Upon completion of a thorough social history, secure the services of a neuropsychologist to administer neuropsychological testing. This will help you understand how your client's brain is actually working (or failing to work). It will also help you determine whether the client has suffered injury to his brain and, if so, to assess the extent and effect of the damage.

Often it is difficult, if not impossible, for mental health experts to determine the cause of a mental handicap, even when there is damage to the brain. In the same way, it is difficult for an expert to pinpoint the cause of brain injury. However, it is widely accepted that damage to the brain can be the result of prenatal trauma, disease, exposure to neurotoxins, or head injury,⁸ among other factors. Always search diligently for causal factors of brain damage. Remember that in the absence of severe head injury or an illness known to damage the central nervous system, an accumulation of small insults to the brain can result in serious neurological impairment and account for organic brain damage.⁹ Medical diseases, such as diabetes or pancreatitis, can also have psychiatric consequences.

Consider Additional Expert Assistance. Next, consider whether you need to ask for expert assistance from a psychiatrist. The answer will very often be yes. Both neuropsychologists and psychiatrists are qualified to diagnose and treat mental disorders. However, the two professions do not otherwise overlap since only medical doctors, such as psychiatrists, are qualified to assess medical factors and prescribe medication. Conversely, only psychologists are qualified to administer psychological tests. If you suspect mental retardation, further psychological testing will be needed to ascertain the client's deficits in intellectual and social domains.

At this point, you may also able to determine if additional mental health experts, such as a neurologist (a medical doctor who can help to pinpoint the causes and the effects of brain damage), a psycho-pharmacologist (a psychologist, pharmacologist or medical doctor who specializes in the effects of chemical substances, and combinations of chemical substances, on human behavior), a developmental psychologist (a psychologist who specializes in the various stages of development humans go through from infancy to adulthood), or a clinical social worker (a licensed mental health professional who understands human development and social relationships), are needed to assist you in achieving a thorough and reliable mental health evaluation of your client. You will also be in a better position to demonstrate why you need funds to complete the evaluation.

If the mental health evaluation confirms that your client is brain damaged or mentally retarded, the severity and characteristics of the condition will influence your strategy regarding how and where to present mental health evidence. However, in ALL mental health cases, it is critical that you utilize each and every motion, court appearance and meeting with the government to emphasize your client's condition.

Mental illness can affect all aspects of a person's feelings and behavior to the extent that almost all actions and decisions made by a mentally ill client are called into question. This means that every stage of a criminal case is loaded with mental state considerations. For instance, was the waiver of your client's rights knowing and intelligent? Was the confession voluntary and reliable? Was the defendant coerced to make a statement? Did the defendant have the specific intent to commit the offense? Was there an irresistible impulse? Are prior convictions -- especially guilty pleas -- valid or are there grounds to challenge admissibility? We could go on with examples, but you get the picture: Whenever any issue is affected by what might have been going on in your client's mind, mental health evidence is potentially relevant. Unless you present your client's mental illness as a major cause for the offense, it may appear to be nothing more than an excuse dragged out by the defendant to avoid punishment for the crime. Even worse, a poor presentation could result in your client's mental illness being perceived as a fabricated justification for a heinous offense.

Determine When and How to Raise Mental Health Issues

Make your theory comprehensive by applying it to each stage of the criminal proceedings. In order to provide an adequate defense and a cohesive presentation of mental health issues, every step in the proceedings against your client must be analyzed in light of the mental health issues in your case. Whether you enter a special plea of incompetency, put forward a mental retardation defense or plead Not Guilty by Reason of Insanity (NGRI) on behalf of the client will depend upon the severity of the mental condition and the time of onset. However, in all cases, your analysis of how mental health factors influenced your client should be wide ranging. Even if you believe as a rule of thumb that mental health issues are strategically unwise, your client will only benefit from your in-depth investigation and consideration of specific facts relating to his mental health.

Waiver of Rights and Consent. A voluntary waiver of rights must be made by a person who gives it knowingly and intelligently. Can a person who has auditory hallucinations be expected to comprehend Miranda warnings, much less understand the consequences of waiving a right? Is a person whose brain is damaged in the frontal lobe region and who is unable to monitor his impulses able to intelligently consent to having his room searched? Ask your experts to review the warnings given to the defendant and comment upon how his mental condition could impact his understanding of the warnings. Also determine how the symptoms of his mental illness would affect his judgment in an interrogation setting. In this context mental retardation is of particular significance, given the propensity of mentally retarded persons to agree with authority figures.¹⁰

Be sure to review any police notes and look for signs of mental or physical distress in the client before, during and after the waiver. If the interrogation or confession was taped, your experts should review it. Investigate whether the authorities knew about your client's mental condition - and whether they exploited it during their interaction with him- through the community grapevine, by personal interaction with him on the street, or from prior arrests and. Also determine whether your client was under the influence of drugs or alcohol -- or mentally debilitated due to withdrawal from drugs or alcohol -- at the time he waived his rights. Find out if medication was prescribed for your client and if he was taking it.

Competency. Competency, which is related to the client's fitness to stand trial, is usually determined prior to the trial on the merits. If you believe the client is unable to comprehend the nature of the proceedings against him or unable to assist you in his defense, competency is the first big issue to consider. Remember, competency has to do with the mental state of the defendant at the time of trial. It is an inchoate matter, in that a defendant who has been found incompetent may later become competent and stand trial. The reverse is also true: a client who has been found competent may later become incompetent, perhaps even during the trial. Many skilled attorneys fail to appreciate the difference between competency to stand trial (here and now) and criminal responsibility for the alleged offense (then and there).

Competency involves more than a superficial knowledge of the role of the courtroom actors. It requires that a defendant be able to understand and keep pace with courtroom proceedings, process and retain relevant information from witnesses, and be motivated to act in his own defense.

This article is too brief to provide a comprehensive discussion of competency but in our experience, attorneys avoid competency proceedings too often, even though the prospect of a competency trial can be a catalyst for a favorable outcome. The best example of this is the federal prosecution of Theodore Kaczynski, where vigorous, intelligent litigation of the defendant's competency to stand trial provided a framework where government mental health professionals agreed that Mr. Kaczynski was severely mentally ill. The competency litigation ultimately led to a plea. However, acknowledgment of mental illness in a high profile defendant by state doctors would never have happened if the defense had not set the stage with credible, comprehensive evidence of the defendant's long standing mental illness.

The constitutional standard of incompetence to stand trial is formidable and, as a rule, is very strictly applied by mental health professionals in state forensic hospitals. In some instances, it may be advisable to open a dialogue with the state doctors. You may want to provide evidence of prior mental disorders you have discovered in the social history investigation, especially if hospitalization or psychological testing was required. This is a difficult decision and should always be made after a full consideration of potential consequences, both positive and negative. If you do decide to communicate with state mental health experts, leave your aggressive courtroom tactics at the office and present your evidence in a collegial, supportive manner.

Failure to aggressively litigate questions of the defendant's competency results in far too many mentally ill and mentally retarded defendants facing trial when they are clearly unable to assist their attorneys. This is especially true of paranoid schizophrenics who may well understand the nature and sequence of a trial but, as a result of their illness, believe that their defense lawyers are determined to harm them and therefore withhold or distort evidence. This is an example of how an individual may appear competent on the surface when manifestations of his illness are, in fact, gravely undermining his defense.

In a situation where your client is unable to assist meaningfully in his defense, it is sometimes helpful to have your mental health experts observe your efforts to interact with your client so they have direct knowledge of the defendant's limitations in being able to assist in his defense as required by Dusky v. United States, 362 U.S. 402 (1960) and Drope v. Missouri, 420 U.S. 162 (1975).

Because mentally retarded persons are characteristically passive and suggestible, they often agree with authority figures and responding affirmatively when asked questions. It is easy to misinterpret passive compliance for cooperation and thereby overlook the fact that a mentally retarded defendant may have no understanding of the proceedings against him or that it is his role to assist his lawyers. It is especially critical to acquire the assistance of experts in identifying characteristics of mental deficits when you have -- or think you may have -- a mentally retarded client or a client with a compromised intellect.

Criminal Responsibility. While there are variables among jurisdictions, mental disorders that rise to the level of a defense are narrowly defined so that there are far too many instances when a profoundly mentally ill defendant may not meet the requisite criteria. However, most jurisdictions have some form of a diminished capacity verdict as an alternative to NGRI as well as lesser included offenses.

Since mental health evidence supporting a plea of NGRI or diminished capacity go to the state of mind of the defendant at the time of the crime, it is often advisable to give jurors the widest range of possible verdicts that reflect mental health issues. Also give them multiple opportunities to apply your client's mental health issues to their deliberations. This is especially true in a death penalty case because jurors are considering punishment from the outset of the trial process.¹¹ These types of more favorable verdicts often turn on the defendant's mental state (e.g., absence of malice or no specific intent) so it does not necessarily follow that mental health issues that do not rise to the level of a defense should be reserved for sentencing considerations.

Not Guilty by Reason of Insanity. Insanity means either the defendant was too mentally disabled to form the requisite intent to commit a crime or the illness is manifested by a delusion so frightening that, if it were true, would justify the crime. A verdict of Not Guilty by Reason of Insanity exonerates the defendant from responsibility for the crime and results in mandatory confinement to a mental hospital. Because the definition of insanity is so narrow and the defendant has the burden of proof, attorneys often fail to plead NGRI, saying the success rate is virtually nil. Yet, how many of these same attorneys would decline to put up a credible alibi defense in a difficult factual case? In our experience, it is far more likely that mentally ill defendants forgo mental health defenses because their own attorneys, unfamiliar with the field and inexperienced in litigating these complex issues, inaccurately assess the severity and impact of the client's mental condition and fail to understand the link between the mental disability and the offense. This is not to say that NGRI should always be pursued. Certainly, there are many cases in which it may not be the most effective way to present mental illness. However, the possibility of litigating NGRI should not be disregarded out of hand simply due to the currently reigning theory that juries won't buy an insanity defense.

Guilty But Mentally Ill. While evidence of a defendant's mental illness may not result in a verdict of NGRI, in some jurisdictions the jury may compromise at a verdict of Guilty But Mentally Ill (GBMI). In a death penalty case, a verdict of GBMI would certainly indicate openness to mental health themes in sentencing. Doubtless, the defense is in a stronger position in the punishment phase of a capital trial if the jury has heard evidence that the defendant acted under the influence of mental illness rather than malice. Take care, though. Entering a plea of Guilty But Mentally Ill in a death penalty case should be approached with caution because it may render errors harmless, including issues of waiver and consent.

Mental Health Issues Must Be Integrated into All Phases and Pleadings in the Case

We have seen countless cases where the defense proclaims innocence in the media, in the courtroom and before the jury and then switches to a mental health theory of mitigation during the sentencing phase. Such inconsistency undermines your credibility and diminishes the weight jurors will give to your mental health evidence.

Mental health evidence that comes as a surprise to jurors will be interpreted as a last ditch effort by the defendant to avoid the consequences of the crime. Therefore, every characterization you make of the case, whether in court, in negotiations with the state, in conversations with jail personnel, in public or to the media, should be consistent and shed light on the mental health aspects of your case. Above all, no facet of the presentation should allow a juror to think the defense considers mental health factors to be a justification for the offense.

Front Loading. To avoid sharp distinctions among the phases of litigation, present mental health evidence as early as possible. This method is sometimes called front loading. It allows you to influence the tone of the proceedings and acquaint the community, the court and the state with your theory of the case. Front loading is the cornerstone of a consistent presentation of your case.

When mentally ill defendants are indigent, acquiring necessary resources to provide an adequate defense requires energy and ingenuity. Take every opportunity to educate the court regarding the mental health issues in your case through well-crafted ex parte motions and arguments for funds for expert assistance. If the judge denies the funds, request evidentiary hearings on each expert and call witnesses to support your requests. Use all your skill and creativity to avoid the mis-characterization of your client as an evil individual rather than a severely mentally handicapped human being who deserves compassion.

An excellent example of front loading occurred in Susan Smith's trial when her history of sexual abuse, suicidality and depression was presented in the guilt/innocence phase to rebut the state's allegation of motive -- that she had killed her children to improve her chances of marrying a wealthy bachelor. This approach clearly influenced the jury to unanimously reject the death penalty for Susan Smith.

Likewise, front loading evidence regarding mental retardation or brain damage also is usually helpful. This was illustrated by the comments of a man who had served on a capital jury in which a verdict of Guilty but Mentally Retarded was rejected in the guilt/innocence phase but presentation again in sentencing proved critical. In explaining why the jury reached a life verdict, the juror said, "We weren't sure he was mentally retarded, but we weren't sure he wasn't either." As for his own vote for life, he said, "I've heard all my life that mentally retarded people are God's angels and I was scared to take a chance I might be killing one."

Voir Dire. It is crucial that you explore attitudes toward mental disabilities during voir dire. Use the voir dire process to educate prospective jurors about the particular mental disabilities suffered by your client. Then, when impaneled jurors hear evidence from expert and lay witnesses, they already will have been exposed to the concepts and evidence you present and are far more likely to understand the significance of that evidence.

In a capital case, prospective jurors who are not willing to give meaningful consideration to your mental health mitigation evidence, even after the client has been convicted of a death- eligible murder, are not qualified to sit on the jury.¹² Attempt to prevent the court or the state from rehabilitating prospective jurors who will automatically reject mental health evidence during deliberation in either phase.

Opening Statement. An opening statement is your chance to display the 4 Cs. Never overstate the longevity, severity or effects of your client's mental condition or exaggerate the findings of mental health experts. Clearly and systematically lay out your theory of how the mental disability affected all aspects of the case -- events leading up to the crime itself (including motive and intent to commit the crime), the investigation, arrest, interrogation of your client and even how your client appears in the courtroom. In cases of innocence, point out how mental health factors contributed to the accusations against your client. Remember that jurors in death penalty cases almost always think about punishment as they consider guilt/innocence issues so it's necessary to consistently provide a framework for jurors to consider the offense and punishment in the context of your client's mental condition.

Capital Sentencing Issues: Rebutting Aggravation. Whatever statutory aggravating circumstances the state puts forward, the state's goal is to keep the jurors' attention on the defendant's criminal behavior and to portray him as the vile, depraved, inhuman monster who committed that heinous crime. Mental health evidence is a way for you to assert your client's humanity through his frailties. When possible, recast motive and intent in each aggravating circumstance. In a recent capital trial, the defense acknowledged intent to commit armed robbery of an elderly man, an act described by the state as predatory. Even so, in the sentencing phase, the defense effectively demonstrated through testimony from mental health experts that the victim's unexpected aggressive response to the defendant's demand for money resulted in panic in the defendant. Family witnesses testified about repeated beatings of the client and his siblings by their father that were so severe they had felt their own lives were threatened. In this instance, the expert and lay witnesses, in combination with the defendant accepting responsibility for armed robbery, provided a credible explanation other than malice for a tragic death. As a result, the jury rejected the death penalty as fitting punishment.

Capital Sentencing Issues: Prior Convictions. When left unrebutted or unexplained, a defendant's prior offenses serve as evidence that he is incorrigible and dangerous. Look for evidence that the same mental health factors that influenced the current charges were also at work in earlier offenses, and for correlations between periods of treatment and reduced criminal activity. Review the social history with a fine tooth comb for signs that the mental condition was present at the time of the earlier offenses. Then, have your mental health experts review records of the prior offenses for signs that mental disorders also influenced these offenses. In a case of mental retardation, look for evidence that your client has been repeatedly duped into committing crimes by smarter accomplices who manage to get away and let him take the blame.

Rebuttal of prior offenses must be consistent with your theory of the present case and treated with the same care as the current charges. It is absolutely necessary to have a comprehensive social history in order to identify recurring influences on your client's behavior. When you use mental health evidence to rebut prior offenses, the presentation must be credible, comprehensible and consistent in every way with your theory of defense in the current case. Otherwise, you not only fail to present an alternative perspective regarding prior convictions, you undermine the credibility of the current case as well.

Capital Sentencing Issues: Mitigation. Research on the factors that influence capital jurors in the sentencing phase repeatedly has found that mental health issues are extremely significant. When jurors are convinced that a defendant was acting under an extreme mental condition or emotional disturbance or has significant mental limitations, they are more inclined to grant mercy.¹³

During the sentencing phase, the stringent technical definition of NGRI is a thing of the past. Take advantage of the somewhat relaxed rules of evidence in sentencing, and put the jurors in the shoes of the defendant. Don't let your experts give dry, psychobabble testimony or rely on vague, overused phrases like "dysfunctional." Use the expert witnesses to compassionately portray to the jurors the turmoil inside your client's head.

Most people have no idea what it is like to experience auditory hallucinations and mistakenly believe they can be turned on or off like a radio. This was dramatically disproved in a workshop we recently attended where the participants, all lawyers, were given headphones with tapes simulating auditory hallucinations. While listening to the tapes, selected participants were asked to answer ordinary questions and perform simple tasks like drawing a map from home to a nearby restaurant. Invariably, these routine activities proved difficult under the influence of intrusive auditory commands. Consider using demonstrative evidence to illustrate your client's mental disorder, or refer to familiar characters in books, movies and television. Make the mental illness real to the jury so they can comprehend its devastating and disastrous effect on your client.

When mitigation evidence is developed and presented within a unified theory of the case, jurors not only are prepared to accept it, they actually will view the case differently. The 4 Cs are especially important in maintaining continuity between the phases of a capital trial. It is impossible to maintain credibility if you deny all allegations in the first phase, and then look to mental health issues to explain the crime and sway the jury toward a life sentence during the punishment phase. Anticipate potential contradictions -- they must be resolved and incorporated into the unified theory of your case.

Closing Argument. In closing argument, weave all the strands of evidence together to form a compelling, comprehensible narrative that is a reasonable alternative to the prosecutor's proclamation that the client is evil to the core. You can only accomplish this if the mental health issues have been presented throughout the proceedings with time-consuming thoroughness, scrupulous integrity and righteous advocacy that place the tragic facts of the offense in the context of the severe and involuntary mental disorder of the defendant.

When your witnesses testify, all of the 4Cs must be interlocked. Jurors must understand your evidence before they can accept your theory. They also must believe it. If they question the credibility of your evidence, they will likely stop listening and start resisting your theory. Without doubt, for your evidence to be understood (comprehensible) by jurors, it must have a reliable foundation (credible), it must not come as a surprise (comprehensive) and it must not be used as an excuse only after all else has failed (consistent).

Presenting Comprehensible Mental Health Evidence

Emphasize Lay Witnesses. Jurors tend to be skeptical of expert witnesses. As a general rule, they do not believe defense expert witnesses unless pre-existing information supports the expert's opinion.¹⁴ Therefore, you must support expert findings through lay witnesses whose testimony traces the client's mental disability over time. In this way, the diagnosis of mental disorder is corroborated by reports of symptoms that existed before the offense and before the expert witnesses ever evaluated the client and reached a conclusion that he is mentally handicapped. Your strongest rebuttal to the state's claim that your client fabricated a mental handicap as an excuse for committing the offense is credible testimony by lay witnesses, especially if their testimony is backed up by contemporaneous documents. Jurors tend to identify with lay witnesses, whose testimony will resonate with the life experiences of the jurors. Remember, lay witnesses, expert witnesses and social history documents must be interlocked if you are to achieve a comprehensible presentation of mental health issues.

Explain Your Client's Mental Illness with a Teaching Witness. As a prelude to testimony by the expert witness(es) who evaluated your client, it is sometimes helpful to have a teaching witness describe to the jury the symptoms and behavior associated with a particular mental condition. This witness does not evaluate or testify about your client but does educate the jury and the court about your client's mental disorder by defining it, describing the symptoms and course of the illness, and explaining the pervasive force the disorder has on an individual's life.

Use Expert Witnesses to Show How Mental Illness Affected Your Client. The mixture of experts who evaluate and testify for the defense depends entirely upon the specifics of your case. You will need a neuro-psychologist to perform and testify about neuro-psychological testing and conclusions. You may need testimony regarding a psychiatric evaluation, particularly if your client has a history of hospitalization and medication for mental illness or, as is all too often the case, the client previously has been incorrectly diagnosed and improperly medicated. Obviously, if more than one expert testifies, all should be fully informed of each other's findings.

Mental health evaluations by psychiatrists and psychologists, especially in a forensic setting, tend to be tailored to answer narrow referral questions about the client's mental condition, such as whether the defendant is competent, insane or mentally retarded. As a result, expert testimony will be dry and technical unless you take steps to ensure the experts speak to the jurors in a conversational tone, rather than at them with academic arrogance. Make sure your expert witnesses are well versed in the details of your client's life and family history as well as his mental illness. That way, both expert and lay witness testimony will be consistent, comprehensible, credible and comprehensive.

Consider Additional Expert Witnesses. To paint a picture of your client's life with a broader brush, consider presenting testimony by a social worker with a master's degree (a person commonly called an M.S.W.) or doctorate who is qualified to assess the accumulated risk factors that contributed to his frailties.¹⁵ After conducting a psycho-social assessment, a social worker can talk about the hazards an individual client faced at home and in the wider community. This perspective is particularly useful to a jury when a defendant's childhood was spent in a deprived environment where neither his family nor his environs had the resources to meet his basic needs such as food, shelter and stable, nurturing relationships over time. Such an analysis will anticipate and diminish an attack on your mental health evidence as nothing more than an "abuse excuse." A social worker will discuss how numerous psycho-social risk factors contributed to the client's conduct, exacerbated the ravages of mental problems and prevented meaningful intervention during his childhood when he was in dire need of treatment for his mental disabilities.

In death penalty cases, where the defendant's future dangerousness is always a consideration of the jury, whether statutory or not, an expert in prison adaptability can be very helpful in explaining that the structure of incarceration can control mentally handicapped inmates and, in fact, often leads to improvement of mental illness. This expert can also point out that inmates face the overwhelming mechanisms of behavior control available to corrections officers and can assure the jurors that in prison, taking prescribed medication is not voluntary and non-compliance with any prison regulation is not an option.

Be Sure Expert Witness Testimony Is Comprehensible. Jurors tend to be skeptical of expert witnesses in general and particularly skeptical of defense expert witnesses. Keep in mind that mental health experts are accustomed to talking to each other in the technical terms of their field. They have to be reminded that a diagnosis is professional shorthand for a cluster of symptoms that may be incomprehensible jargon to the average juror. To make sure jurors do not reject the testimony of your experts simply because they didn't understand it, help your mental health experts state their findings in plain, comprehensible language and common sense terms used by the average person.

Prepare Witnesses to Testify. Prepare the direct examination questions of every witness -- lay or expert -- with great care. Mental health cases can easily disintegrate into a series of disconnected, contradictory witnesses who testify in a disjointed manner in language that makes no sense to the jury. Every witness presenting mental health evidence must be thoroughly prepared by the defense team for direct examination and cross examination. Make sure your witnesses know your theory of the case and how their testimony supports it.

Demonstrate Compassion for Your Mentally Disabled Client

Making an effective presentation of mental health issues involves understanding and anticipating the effects of trial on your client. A person with a mental disorder does not perceive events or process ideas normally. The inability to process ideas and to communicate in a normal fashion is the very nature of mental disorder. When a mentally impaired person is enmeshed in the criminal justice system, his misperception of events around him and his communication disorders will only be exacerbated. This is especially true of the many mentally ill capital defendants who have paranoid tendencies and believe that you are part of a system that exists to cause them harm. However difficult it may be, remember that within the straightjacket of mental illness, this is logical.

You should expect that the defendant's symptoms and limitations will become increasingly apparent as trial approaches. This tendency, in combination with your own rising anxiety, can be explosive unless you prepare yourself and the client. In other words, if you think the client's accusations that you are doing nothing to protect his rights were irritating during pre-trial conferences at the jail, just wait until he hurls them at you in front of the jury and TV cameras.

By taking precautionary steps, you can limit the risk of your client acting out. For example, make sure that the client is receiving proper medication and that it is administered as directed. It is not unusual for the law enforcement officers who transfer your client from jail to court to forget to bring his medications, which are usually stored in a dispensary. If necessary, request the court to order that medication be provided and administered during the days when you are in court.

Continuously monitor your client's state of mind and take steps to reduce the stress he must endure. For example, in the case of a mentally retarded defendant who would characteristically become increasingly confused and frustrated during any proceeding, a motion to take a small portion of every hour to confer with the defendant and explain the proceedings to him is very helpful. Similarly, a mentally ill client may be able to withstand a six to eight hour day in court but beyond that, becomes unmanageable. A motion to end the proceedings every day at a certain hour might provide the relief and structure you client requires to control his impulsive behavior.

Returning to jail pandemonium at the end of the day is difficult for any client, but it can be especially agitating for a mentally handicapped one. It may be that assignment to an individual cell, where the client can retreat and calm himself, would be preferable. If he needs solitude, ask the jail custodians to make this arrangement in light of your client's mental state. Consult the client in all these decisions and respect his reasonable requests even though you may not be able to attain ideal trial circumstances. Keep track of his schedule and make sure he is allowed adequate time to sleep, eat, bathe and rest. Jails, especially those in large metropolitan areas, sometimes transport defendants hours before court is scheduled and make them wait hours after court before returning to the jail.

In short, do everything you can to reduce the stress your client experiences during trial. Every protective step you take helps avoid an outburst in open court. Such events are inevitably covered by the press and will be interpreted as signs of dangerousness rather than symptoms of mental illness. They almost always lead to increased courtroom security and overtly reinforce the picture of your client as unmanageable and threatening.

Anticipating and responding to the needs of a mentally impaired defendant is more than a behavior modification technique. It is a means of demonstrating to the client and everyone who has custody or control over him that you take his mental disorder seriously and intend to treat him with dignity and humanity. If you don't do it, how can you possibly expect that a jury will? Remember, you serve as a role model for the court, courtroom personnel, prosecution and jury, and, through your interaction with the client, teach others that your client deserves mercy.

Even though the fields of law and mental health share some mutual values and goals, the criminal justice system is not user-friendly for mentally impaired criminal defendants. Archaic definitions, burden-shifting, and cultural bias against mentally ill persons are only a few of the formidable challenges an attorney faces when defending a client with a mental disability. For mental health issues to be considered with fairness and mercy, evidence must be developed and presented in a consistent, comprehensive, credible and comprehensible manner. To shortchange any of these principles is to squander your client's compelling mental health issues. Worst of all, you are more likely to arouse anger and vengeance against the defendant rather than to foster the compassion and mercy you seek on his behalf.

1. John Blume, Mental Health Issues in Criminal Cases: The Elements of a Competent and Reliable Mental Health Examination, The Advocate, August 1995.
2. The web site for the National Alliance for the Mentally Ill is www.nami.org. The web site for National Institute of Mental Health is www.nimh.nih.gov.
3. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders (4^th ed. 1994).
4. Benjamin J. Sadock & Virginia A. Sadock, eds. Comprehensive Textbook of Psychiatry (7^th ed. 2000).
5. For an excellent article on this topic, See Deana Dorman Logan, Learning to Observe Signs of Mental Impairment, CACJ FORUM, v. 19, n.5-6 (1992).
6. H. J. Steadman, E. P. Mulvey, J. Monahan, et al. Violence by People Discharged from Acute Inpatient Facilities and by Others in the Same Neighborhoods. Archives of General Psychiatry 55:393-401, 1998.
7. See Michael Davidson, Abraham Reichenberg, et al. Behavioral and Intellectual Markers of Schizophrenia in Apparently Healthy Male Adolescents. American Journal of Psychiatry 156:9, September 1999.
8. If your client suffered head injury, or if you suspect head injury, consult the web site for Head Injury Hotline at www.headinjury.com.
9. For more information on head injuries, see the Head Injury Hotline web site at www.headinjury.com.
10. See Ronald Conley, Ruth Luckasson and George Bouthilet. The Criminal Justice System and Mental Retardation (1992).
11. William J. Bowers, Marla Sandys and Benjamin Steiner, Foreclosing Impartiality in Capital Sentencing: Jurors' Predispositions, Attitudes and Premature Decision-Making, 83 Cornell L. Rev. 1476 1998).
12. See Morgan v. Illinois, 504 U.S. 719 (1992).
13. See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think? 98 Colum. L. Rev.1538 (1998).
14. See Scott Sundby, The Jury as Critic: An Empirical Look at How Capital Juries perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109 (1997).
15. See Arlene Bowers Andrews. Social Work Expert Testimony Regarding Mitigation in Capital Sentencing Proceedings. Social Work 36:5, September 1991.

 
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Kentucky Dept. of Public Advocacy
http://www.dpa.state.ky.us