It's an all-too-familiar scenario in capital litigation. The prosecution moves for a psychiatric evaluation to assess a defendant's capacity to stand trial and criminal responsibility. The state evaluators review incident reports of the offense as well as the defendant's adult and juvenile criminal record--if any--interview the defendant and perhaps a family member or two, and possibly administer an IQ test and a personality assessment, probably the MMPI, and a few "projective" tests. Their diagnosis: antisocial personality disorder ["APD"]. This can be the kiss of death, because to many people, and most judges, this means that the defendant is little more than a remorseless sociopath.¹ Or as the "ubiquitous Dr. Grigson"² would state, the defendant has "a severe antisocial personality disorder and is extremely dangerous and will commit future acts of violence."³ The state's expert will also explain that those with APD are deceptive, manipulative, and violent and show no remorse for their actions. The prosecution will remind the jury of this expert medical evidence in closing argument, telling the jury that the defendant is simply too dangerous and evil to spare and that the defendant's attempts to present mitigating evidence are nothing more than the contrived attempt of a manipulator to con them. Or as one prosecutor argued:

The APD diagnosis is not only harmful, but it is frequently wrong. Sometimes the error rests on a misunderstanding of the disorder. At times, it is erroneously diagnosed because of an over-reliance on personality tests, a failure to consider the defendant's culture and background, or an inaccurate or incomplete factual basis. Too often, mental health professionals conclude that a defendant has APD for no other reason than he has been accused of a heinous crime and may have previously committed bad acts, and the experts make no effort to understand the context in which the actions took place. In short, it is often "the lazy mental health professional's diagnosis."⁸

Many experienced capital litigators, especially in Texas, are no stranger to this sort of drive-by evaluation. For example, in Chamberlain v. State,⁹ the defendant was convicted of sexually assaulting and murdering a neighbor. Evidence of his guilt was not uncovered until six years after the crime. At the penalty phase, the defense argued that he had a non-violent past. The state, however, introduced evidence of an attack against a fellow soldier, an attack on a woman at a shopping mall, and the burglary of a pornography shop. The state then called a psychiatrist to testify that "the facts of the offense reveal a sexually sadistic, antisocial personality disorder."¹⁰ There is very little in the court's opinion that suggests that the defendant actually met the criteria for APD.

Likewise, in White v. Johnson,¹¹ the prosecution's psychiatrist testified that the defendant had APD. This conclusion was based on the circumstances surrounding the offense, the defendant's alleged lack of remorse shortly after his arrest, and testimony that he had beaten a former spouse.¹² Although the facts of the offenses for which he was convicted were gruesome, the state's expert could point to little else that supported the criteria for APD. Both White and Chamberlain illustrate two common deficiencies with drive-by type diagnoses of APD: there is nothing about the defendant's conduct prior to age fifteen, and little or no evidence of repeated and pervasive antisocial conduct.

By understanding the criteria for identifying personality disorders in general and APD in particular, and by conducting a thorough and reliable social history, defense attorneys can often avoid and always be prepared to legitimately challenge an APD diagnosis. We will first identify the criteria for APD. We will also focus on critical features of APD that are often overlooked but which are necessary predicates to an accurate diagnosis. We will then suggest ways to attack a state expert's conclusion that the defendant client has APD and recommend several courses of action that will help ensure that defense experts do not make the same mistakes that the state experts made.

WHAT IS ANTI-SOCIAL PERSONALITY DISORDER?

Diagnostic Criteria for Antisocial Personality Disorder

According to the Diagnostic and Statistical Manual, Fourth Edition ["DSM-IV"], "[t]he essential feature of Antisocial Personality is a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood."¹³ DSM-IV provides a number of criteria that must be met before an evaluator should conclude that a patient has APD:¹⁴

A. There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:

C. There is evidence of Conduct Disorder with onset before age 15 years.

D. The occurrence of antisocial behavior is not exclusively during the course of Schizophrenia or a Manic Episode.
 

At first blush, these criteria seem fairly broad and damning to many capital defendants. However, they contain very important limitations and exclusions that are often ignored or overlooked. First, APD requires that a defendant be at least eighteen years of age. Second, there must be evidence of a Conduct Disorder before age fifteen. Failure to meet these criteria eliminates APD as a diagnosis. Similarly, a mental health professional should first consider the possibility of organic impairments or other serious mental illnesses or disorders before finding a defendant to have APD. Finally, one of the most important limitations of APD that is frequently not considered is that an accurate diagnosis requires evidence of traits that "are pervasive (that is, present in a wide range of situations), distressing or impairing, of early onset, and enduring."¹⁵ That is to say, there must be numerous examples of antisocial acts in a wide variety of contexts over a period of time before APD may qualify as an appropriate diagnosis. We shall discuss these exclusions and limitations in more detail.

Age-Related Exclusions and Limitations on an APD Diagnosis

A. The Defendant Must be at Least Eighteen Years of Age.
The diagnosis should not be made if the defendant is under age eighteen. Generally speaking, "the definition of a personality disorder requires an early onset and long-term stability."¹⁶ Prior to age eighteen, personalities are often not well-developed, and problematic traits observed during adolescence may disappear during early adulthood.¹⁷ At most, juvenile defendants can be said to have a Conduct Disorder.¹⁸ And even then, there are a number of limitations on that diagnosis for juveniles, including evidence of a pattern of misconduct and not merely isolated bad acts, a need to understand the context in which the actions took place, and a consideration as to whether the actions stemmed from a more serious underlying mental illness or disorder.

B. Evidence of Conduct Disorder Before Age Fifteen

Experts frequently gloss over this criterion for APD, often concluding that a defendant has APD with little or no information concerning the defendant's life prior to age fifteen. Under the DSM-IV criteria, a defendant absolutely cannot be classified as having APD unless he has a history of symptoms of Conduct Disorder before that age. Conduct Disorder "involves a repetitive and persistent pattern of behavior in which the basic rights of others or major age-appropriate societal norms or rules are violated."¹⁹ DSM-IV requires the presence of three (or more) of the following criteria in the past 12 months, with at least one criterion present in the past 6 months:²⁰

Aggression to people and animals:

Defense counsel must pay particularly close attention to these criteria. Many children commit isolated occurrences of antisocial behavior without repeatedly violating the law or social norms, especially in reaction to a serious disruption in their family or school life.²² The fact that a defendant was in a fight, bullied someone on a couple occasions, or cut school a few times should not count against him, except perhaps as a diagnosis of Oppositional Defiant Disorder or Disruptive Behavior Disorder.²³ If an occasional antisocial act prior to age fifteen is the only basis for determining that the defendant had a Conduct Disorder, then the expert was wrong to diagnose APD, yet this happens all the time.

It is also essential to be familiar with the context in which any bad acts or rules violations took place. The DSM-IV acknowledges that APD is more often found in those of low socioeconomic status and in urban settings, and thus there are concerns that the diagnosis has been applied "in settings in which seemingly antisocial behavior may be part of a protective survival strategy."²⁴ As a result, it cautions experts to consider "the social and economic context in which the behaviors occur."²⁵

For example, children may run away from home if they are being physically or sexually abused. A young adolescent may steal or sells drugs to obtain money to meet basic needs. Similarly, a client who grows up in a violent area may join a gang and participate in gang-related unlawful activities because it is his way of coping with the harsh circumstances of his surroundings. The mentally retarded or those with severe learning disabilities sometimes skip school to avoid the pervasive sense of always being a failure.²⁶ Though these are unlawful or undesirable activities, they reflect not so much an enduring and inflexible personality trait of the client but his method of coping with difficult circumstances. They should not factor into a diagnosis of Conduct Disorder.

Counsel must also consider whether the antisocial act was the product of a more severe mental illness or disorder. For example, psychotic disorders, especially with paranoid symptoms or hallucinations, may explain aggression, destruction of property, or running away.²⁷ "In general, extremely violent behavior, especially if unpredictable and unjustified, should raise the suspicion of an underlying psychotic disorder or of specific brain pathologies, such as seizure disorders, tumors, subacute encephalitis, tuberous sclerosis, and dissociative illnesses."²⁸ Similarly, children with attention deficit/hyperactivity disorder may at times be disruptive. Finally, children and adolescents may react aggressively and exhibit hypervigilance in response even to trivial events because they have posttraumatic stress disorder as a result of physical and sexual abuse.²⁹ The defendant's antisocial acts committed prior to turning fifteen that are attributable to another mental disease or disorder should not lead to a diagnosis of Conduct Disorder.

Many clients have committed bad acts prior to age fifteen; of these, however, a large number did not engage in significant or repeated antisocial conduct. Regardless, then, of what they may have done after turning fifteen, these defendants do not fit the criteria for APD. And even for those who may at first glance meet the Conduct Disorder criteria, thorough and reliable investigation of the defendant's early life will uncover mental illnesses, disorders, or severe trauma that frequently explain the misconduct. If defense counsel can explain childhood and early adolescent misconduct and avoid a finding of a Conduct Disorder, the defendant should not be diagnosed with APD.

Other Limitations on an APD Diagnosis

Besides the age-related exclusions, the other specific criteria for APD contains a number of other significant limitations.

A. There Must be a Pattern of Antisocial Acts

Too often, clinicians, judges, and lawyers view the APD criteria as nothing more than a checklist of antisocial acts. If a client has committed several prior bad acts, then he is antisocial. It is simply wrong, however, to equate several antisocial acts with APD. Category A of the APD criteria lists a number of types of antisocial acts, including unlawful behaviors, lying, impulsivity, irritability or aggressiveness, reckless disregard for the safety of self or others, irresponsibility, and lack of remorse. What is often overlooked is that the criteria explicitly require evidence of "repeatedly performing acts that are grounds for arrest," or "repeated lying," or "repeated physical fights or assaults." Thus, even if the state's experts or the defense's own experts uncover evidence that the defendant committed prior criminal acts or lied to someone or got into a fight, without reliable evidence that he repeatedly engaged in the antisocial acts, he would not meet the criteria for APD. This is obviously a critical area to be aware of because most people, and not just capital defendants, have engaged in antisocial acts in their lifetimes, but no one would jump to the conclusion that they have APD.

B. The Context and Motivation for the Antisocial Acts.

A repeated pattern of a variety of antisocial acts may be necessary for an APD diagnosis, but it is hardly sufficient. It answers only what the client did but does not explain why. As discussed in the context of Conduct Disorder, experts and defense counsel must consider the circumstances under which the bad acts took place. APD is supposed to characterize those who are deceitful or manipulative and who act for personal gain or pleasure without regard for the feelings of others.³⁰ Those with APD are said to "lack empathy and tend to be callous, cynical, and contemptuous of the feelings, rights, and sufferings of others. They may have an inflated and arrogant self-appraisal . . . and may be excessively opinionated, self-assured, or cocky."³¹

These concerns should lead a clinician and defense counsel to investigate the defendant's past in greater detail to learn what was driving his conduct at the time. Did the defendant commit thefts or burglaries for the thrill of it or to obtain money to run away from an abusive home? Or was he pressured by older siblings or a parent to participate in a robbery? Did the defendant get into fights out of a sense of loyalty or obligation to a gang that everyone felt pressured to join? Or is there any evidence that he initiated fights for no reason. Even though the defendant may have performed bad acts, he may not have done so for purely personal reasons or for reasons that do not make sense under the circumstances in which they took place. Understanding why certain acts took place may uncover more sympathetic mitigating evidence and also rule out APD.

Another way to approach this is to recall that under the APD criteria, antisocial acts must be pervasive, that is, present in a wide range of situations. If the defendant acts out only when he is with other gang members but does not otherwise get into fights or break the law when with other people or with his family, the motivation behind the defendant's actions may have little to do with his personality traits but is a response to his environment. Thus, "[a]ntisocial personality disorder must be distinguished from criminal behavior undertaken for gain that is not accompanied by the personality features characteristic of this disorder."³²

C. Differential Diagnoses

Many defendants suffering from schizophrenia, other serious mental illnesses, or substance dependence have engaged in unlawful or antisocial acts. Likewise, several of the criteria for other personality disorders, such as borderline personality disorder, schizotypal personality disorder, narcissistic personality disorder, are similar to the criteria for APD. If an expert and defense counsel do little more than count the number of antisocial acts that the defendant committed, they may not realize that the defendant is suffering from something much more serious and more mitigating in the eyes of the jury. In addition, as a general rule, experts may generally not diagnose APD if there is evidence of other disorders affecting conduct.

APD should not be diagnosed if antisocial acts result from organic causes, occur exclusively during an episode of an Axis I or clinical disorder, or are not typical of the individual's long-term functioning.³³ In fact, one of the criteria for APD is that the occurrence of antisocial behavior is not exclusively during the course of schizophrenia or a manic episode.³⁴ This also highlights the need to investigate whether the defendant may have brain damage and ensure that he has undergone a reliable battery of neuropsychological tests. An evaluator should also consider when the defendant's antisocial actions began. If antisocial acts did not begin until the defendant was exposed to severe trauma or extreme stress, it is possible that he is suffering from posttraumatic stress disorder and thus the undesirable acts would not reflect his inherent personality traits.

Distinguishing APD from other personality disorders is difficult, especially since many personality disorders have similar criteria. For instance, those with a narcissistic personality disorder also tend to be tough-minded, superficial, glib, and exploitative. They, however, do not tend to be impulsive. Those with borderline personality disorder are often manipulative. They, however, aim to gain nurturance, whereas those with APD tend to be manipulative for profit or power and are more emotionally stable. Individuals with Paranoid Personality Disorder or paranoid schizophrenia, by contrast, are sometimes motivated by revenge.³⁵ Some of these more subtle differences between APD and other personality disorders demonstrates the need for a careful investigation not only into what the defendant may have done but also why he did it.

An APD diagnosis is also problematic if the defendant has a substance-related disorder. DSM-IV cautions against basing a diagnosis of any personality order solely "on behaviors that are the consequence of substance intoxication or withdrawal or that are associated with activities in the service of sustaining a dependency."³⁶ In fact, APD should not be diagnosed at all for an adult with a substance-related disorder unless signs of APD were already apparent in childhood and continued into adulthood.³⁷ Many clients suffer from chronic and long-standing alcohol and other drug related disorders. They may have to steal or sell drugs to satisfy their own needs. They may not get into fights unless they are drunk. Alcohol, especially in conjunction with some types of brain damage, may impair a defendant's ability to think through the consequences of his actions and cause him to be more impulsive. If all or most of the defendant's antisocial conduct is linked somehow to dependence on alcohol or other drugs, several of the APD criteria may not be applicable.

AVOIDING A DEFENSE DIAGNOSIS OF APD

An APD diagnosis by a defense expert almost always results from a lack of diligent and thorough investigation into the client's social history. Even good lawyers occasionally take steps that lead to APD. Although expert assistance is almost always needed in a capital case, it is often not wise to send in a psychiatrist at the outset of the investigation. At that time, the defense psychiatrist will know only what the state evaluators usually know: the defendant committed a horrible crime and perhaps has a prior criminal history. Knowing only a list of antisocial acts in the defendant's past, even well-meaning experts may begin to think of APD in the absence of additional information, including details that explain or mitigate some of the prior bad acts. Once an expert begins to entertain the possibility that the defendant has APD, the expert may later be resistant to changing his or her initial impression.

Counsel should also avoid having the defendant undergo personality tests, such as the MMPI, or projective tests. These tests are not designed for client's with the history of most capital defendants. Many defendants will score high on antisocial traits and appear to be manipulative and deceitful when they are in fact being candid. In particular, defendants who are tested under stressful conditions, e.g., shortly after being incarcerated, tend to endorse a large number of extreme symptoms. Thus, they erroneously come across as malingering and manipulative.³⁸ In addition, defendants from different cultural backgrounds may have elevated scores on various scales. Similarly, defendants with low intelligence, reading problems, or other impairments may not understand all of the questions or may respond inconsistently to different items, which again may make them appear to be malingering and therefore deceitful.³⁹There is a real danger that experts will use the tests as a window into the mind of the defendant and conclude that he has the personality traits of a sociopath. In turn, the jury will likely be swayed by seemingly "objective" evidence of the defendant's antisocial personality.

If counsel should not send in experts immediately or administer various personality tests, what should be done? The simple answer is that counsel should follow the five step process recognized as providing the requisite standard of care to assure that the client receives a competent and reliable evaluation.⁴⁰ The first step is to obtain an accurate medical and social history. Second, counsel must obtain other historical data not only from the client but from independent sources. Thus, defense counsel will require funds for a mitigation investigator to collect school, employment, military, medical, psychological, and all other records pertaining to the client and his family. An investigator will interview the client, close family members, friends, acquaintances, teachers, employers, and anyone else who was close to the client and his family.⁴¹ Third, the defendant should undergo a physical examination, including a neurological evaluation. Fourth, depending on the client's history and results of the physical examination, counsel should decide which additional diagnostic studies are required. Often, this will involve neuropsychological testing, especially if the client has a history of head injuries, trauma, learning disabilities, or other problems or diseases affecting the brain. In addition, the defendant may require an MRI, CT scan, EEG, or other neuroimaging procedures. Finally, counsel should be aware that the standard mental status exam cannot be relied upon in isolation for assessing the presence of organic impairment. The standard mental status examination may not detect more subtle signs of organic impairment. To accurately assess the presence of these types of problems, the examiner must consider all of the data collected. Once defense counsel has assembled this information, counsel can show the expert whether there is any evidence of a Conduct Disorder before age 15. Counsel will be able to apprise the psychiatrist whether the defendant was subjected to overwhelming trauma or can point to hospital records documenting brain injury or exposure to neurotoxins. The expert will also have access to well-documented information concerning the client's alcohol and drug history. Counsel may be able to establish that the defendant has experienced hallucinations or delusions. Counsel will be able to document the environmental factors that shaped the defendant's life choices. For example, the expert may learn that the defendant used alcohol to blunt the trauma of being sexually abused, and that he began skipping school at a young age to drink. In sum, counsel will uncover facts such as organicity or psychosis that will exclude APD or that will put the defendant's actions in a more sympathetic light.

In prior psychiatric or psychological evaluations, some defendants may have already been diagnosed as having APD or a Conduct Disorder. That, however, should never be taken as the last word on the defendant's mental condition. Those prior evaluations usually suffer the same infirmities as court-ordered evaluations in capital cases: insufficient facts, inadequate investigation, or inattention to the specific criteria. A defendant may even have been labeled as having a Conduct Disorder, as opposed to a mental illness, when he was a juvenile to save the state the expense of having to offer mental health care.⁴² Moreover, juvenile and other facilities may also have been the setting for trauma that cause serious mental disorders.

The take home message is that there are no short cuts. Nothing less than a comprehensive social history can provide the data needed to make a reliable and more favorable diagnosis and avoid a diagnosis of APD. It is also the only way to have a meaningful chance to rebut an APD diagnosis by the state's experts. The credibility of the state's expert will be undermined only if the defense can present reliable and independently corroborated evidence either excluding APD or ruling out several of the criteria supporting the state expert's conclusions. Without evidence that specifically rules out various criteria or knocks out APD altogether, the jury will be left with the picture that the defendant is, by nature, violent, manipulative, and remorseless.

ATTACKING THE STATE'S FINDING OF APD:

Clearly, APD is the state's preferred diagnosis. It enables the prosecution to present expert evidence that the defendant has had a "pervasive pattern of disregard for, and violation of, the rights of others that beg[an] in childhood or early adolescence and continue[d] into adulthood."⁴³ In other words, the defendant was, is, and will continue to be mean, violent, and remorseless. Can defense counsel do anything to prevent or dilute this type of testimony?

In some states, state experts may be limited to evaluating a defendant's capacity to stand trial and criminal responsibility.⁴⁴ Defense counsel should oppose prosecution motions to have the defendant evaluated if the prosecution cannot show a basis to question the defendant's competency or unless counsel believes that there may be a question of competency. Counsel should also move to prohibit the introduction of state expert testimony that exceeds the scope of the initial commitment order.

State evaluations that exceed the limited scope of the trial court's order for competency and criminal responsibility evaluations may also raise Sixth Amendment concerns. The defense is entitled to notice about the specific purpose of an evaluation so that counsel can advise the defendant accordingly. Counsel cannot perform this function if the prosecution misuses the court-ordered evaluation to gain additional information beyond the express scope of the evaluation to use at the penalty phase, for example evidence of future dangerousness or evidence that the defendant meets several of the criteria for APD.⁴⁵ Therefore, if the defendant has been sent to the state hospital for the limited purpose of determining his capacity to stand trial, defense counsel should challenge on Sixth Amendment grounds the state's attempt to present information garnered during that evaluation at the penalty phase.

In most jurisdictions, courts will allow state expert testimony at least in rebuttal to defense mental health experts. Counsel must then research possible suppression motions and prepare for rigorous cross-examination. Counsel must obtain the client's complete state hospital file, including documents that had been provided by the prosecution. Often a release from the client will suffice. If not, the defense must move for the production of all such material. In most jurisdictions, experts must disclose the underlying facts or data upon which their conclusions rest.⁴⁶ Moreover, the prosecution is also constitutionally obligated to disclose anything in the records that is favorable to the defendant or that would provide the basis for undermining any of the criteria for the APD diagnosis.

In many cases, the records will reflect that the state's experts have little or no basis for concluding that the defendant has APD. For instance, state hospital records may contain no information at all about the defendant's life prior to age fifteen, or they may show that the defendant's antisocial acts did not begin until after age fifteen. Thus, there would be nothing on which to base a finding of Conduct Disorder, and hence the defendant cannot have APD. Likewise, the records will show that the state experts did not have evidence of repeated acts of misconduct. They may have known about one or two arrests for relatively minor crimes or fights, but nothing more.

When it is fairly clear that the criteria for APD do not fit, which will be true in the majority of cases, defense counsel should move to exclude the state's expert testimony under Daubert v. Merrell Dow Pharmaceuticals⁴⁷ or analogous state law precedent. Counsel can show that the state expert's opinion has no factual support and runs counter to accepted standards and practices in the mental health field.⁴⁸ Even if counsel cannot shield the defendant from a court-ordered evaluation and cannot suppress state expert testimony on APD, counsel can at least cross-examine the state's expert about the lack of factual support. Finally, counsel may be able to cross-examine the state's experts about additional information, such as organic brain damage or schizophrenia, that may rule out APD or at least undercut various criteria.

At the penalty phase, jurors are already likely to be leaning to sentence the defendant, a person whom they have just convicted of a heinous crime, to death.⁴⁹ State expert testimony that the defendant has APD will confirm what the jurors have come to believe about the defendant. To improve the client's chance of receiving a life sentence, defense counsel must either preclude evidence concerning APD or present a compelling case in mitigation that not only helps jurors understand the defendant's history but that also assures them that the defendant is not a future danger, is not remorseless, and is worth saving.
 
 

1. See, e.g., Graham v. Collins, 506 U.S. 461, 500 (1993) (Thomas, J., concurring) (equating antisocial personality disorder with being a "sociopath").
2. Satterwhite v. Texas, 486 U.S. 249, 268 (1988) (Blackmun, J., concurring in part and concurring in the judgment).
3. Id. at 253.
4. Record on Appeal, State of South Carolina v. Franklin at 3182-83.
5. See, e.g., Satcher v. Pruett, 126 F.3d 561, 572 (4^th Cir. 1997).
6. Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1559-60 (1998) (jurors more likely to vote for death if they think that the defendant is a future danger and shows no remorse).
7. Satcher, 126 F.3d at 572-73.
8. John Blume, Mental Health Issues in Criminal Cases: The Elements of a Competent and Reliable Mental Health Examination, The Advocate 4, 10 (August 1995).
9. 998 S.W.2d 230 (Tex. Crim. App. 1993).
10. Id. at 233.
11. 153 F.3d 197 (5^th Cir. 1998).
12. Id. at 205-06.
13. American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 645 (4^th ed. 1994) [hereinafter DSM-IV] at 645.
14. Id. at 649-50.
15. John G. Gunderson and Katharine A. Phillips, Personality Disorders, in 2 Comprehensive Textbook of Psychiatry 1425, 1432 (Harold I. Kaplan & Benjamin J. Sadock eds., 6^th ed. 1995).
16. Id. at 1425.
17. Id. at 1433.
18. DSM-IV at 648.
19. Id. at 85, 646.
20. Id. at 90-91.
21. Id. at 91.
22. Benedetto Vitiello and Peter S. Jensen, Disruptive Behavior Disorders, in 2 Comprehensive Textbook on Psychiatry 2311 (Harold I. Kaplan & Benjamin J. Sadock eds., 6^th ed. 1995); Caroly S. Pataki, Child or Adolescent Antisocial Behavior, in 2 Comprehensive Textbook on Pschiatry 2477, 2478 (Harold I. Kaplan & Benjamin J. Sadock eds., 6^th ed. 1995).
23. DSM-IV at 91-94.
24. Id. at 647.
25. Id. at 647; see also id. at 631 ("Judgments about personality functioning must take into account the individual's ethnic, cultural, and social background."
26. Id. at 86.
27. Vitiello and Jensen, supra note 22, at 2315.
28. Id.; see also Pataki, supra note 22, at 2481.
29. Pataki, supra note 22, at 2481.
30. DSM-IV at 645-46.
31. Id. at 647. DSM-IV and other sources are rich with negative descriptions of the characteristics of those with APD. They are "frequently deceitful and manipulative in order to gain personal profit or pleasure (e.g., to obtain money, sex, or power)." Id. at 646; see also Id. at 647 (those with APD lack empathy and have an inflated self-appraisal and superficial charm). Those with APD are often found to "egocentrically value others for what they can provide, and they believe that, to survive, they need to extort whatever they can." Gunderson and Phillips, supra note 15, at 1431.
32. DSM-IV at 649.
33. Id. at 632.
34. Id.
35. Id.
36. Id.
37. When both the substance use and antisocial behavior began in childhood, both a substance-related disorder and APD may be diagnosed, even if some antisocial acts were related to the substance-related disorder, e.g., selling drugs or thefts to obtain money to buy drugs. DSM-IV at 648-49.
38. Kenneth S. Pope, James N. Butcher, and Joyce Seelen, The MMPI, MMPI-2 & MMPI-A In Court: A Practical Guide for Expert Witnesses and Attorneys 104 (1993).
39. Id. at 103.
40. See Blume, supra note 8, at 5-7.
41. See, e.g., Russell Stetler, Mental Disabilities and Mitigation, The Champion 49 (April 1999); Russell Stetler, Mitigation Evidence in Death Penalty Cases, The Champion 35 (January/February 1999); Lee Norton, Capital Cases: Mitigation Investigations, The Champion 43 (May 1992).
42. Carl Ginsburg and Helen Demeranville, Sticks and Stones: The Jailing of Mentally Ill Kids, The Nation 17, 18 (December 20, 1999).
43. Id. at 645.
44. See, e.g., S.C. Code ' 44-23-410.
45. Powell v. Texas, 492 U.S. 680 (1989) (per curiam); Satterwhite v. Texas, 486 U.S. 249 (1988); Estelle v. Smith, 451 U.S. 454, 465 (1981) (trial judge ordered a "psychiatric evaluation for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to [the defendant].").
46. See, e.g., Fed. R. Evid. 705.
47. 509 U.S. 579 (1993); see also Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999).
48. See generally Hilary Sheard, What to do about Daubert?, The Champion ___ (forthcoming) (addressing Daubert and suggesting methods of using it to attack a variety of state expert evidence, including findings of APD and future dangerousness).
49. See, e.g., Theodore Eisenberg and Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 12, 14 (1993) (there is a "presumption of death" . . . . A defendant on trial for his life at the punishment phase has one foot in the grave. The defendant needs affirmative action by jurors to pluck him from the crypt, action that is likely to annoy other jurors, at least initially."; Theodore Eisenberg, Stephen P. Garvey, and Martin T. Wells, Jury Responsibility in Capital Sentencing: An Empirical Study, 44 Buff. L. Rev.
 
 

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