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Criminal insanity and mens rea: a discussion of Alabama insanity law and the role of psychiatrists in determining criminal insanity.

In Clark v. Arizona, (1) the United States Supreme Court restricted a defendant's use of mental illness evidence to the insanity defense, (2) rejecting Clark's argument that mental illness evidence should be allowed for the purpose of negating mens rea, without raising an insanity defense. (3) The issues raised within the Clark case bring to mind many interesting questions about the insanity defense and the evidence used to support a claim of insanity. Can a defendant be undoubtedly mentally ill as in the Clark case, yet still have the capacity to form intent or the mens rea to commit a crime under the law? Should evidence of mental illness be used by a trier of fact to negate or rebut mens rea? Moreover, what is the role of the expert, the psychiatrist or psychologist, in determining whether a defendant has the capacity to form intent or is insane? This Note looks at the law as it currently rests in Alabama and provides an overview of how these questions are answered within this State. It begins with an overview of the affirmative defense of insanity within Alabama. Next, it will discuss whether, under Alabama law, a defendant can be insane and yet still possess the mens rea to commit a crime. The Note further discusses whether evidence of mental illness is considered by the State to rebut intent. Finally, this Note talks about the role psychiatrists play in determining mental illness and the ability to know right from wrong, primarily in their own words.

I. CLARK V. ARIZONA

Just before 5 a.m. the morning of June 21, 2000, 911 calls came in from a neighborhood in Flagstaff, Arizona. (4) The callers complained about loud music coming from a pickup truck that kept circling around the block. (5) Officer Jeff Moritz of the Flagstaff Police Department arrived at the scene. (6) When Officer Moritz located the truck, he turned on the emergency lights and siren of his patrol car and the driver of the truck pulled over. (7) Less than a minute later, (8) Officer Moritz was shot in the heart. (9) Clark was arrested later that day with gunpowder residue on his hands and the gun used to kill Officer Moritz stuffed in a knit cap. (10) Clark was charged with first degree murder for intentionally or knowingly killing a law enforcement officer in the line of duty. (11) His defense had two parts: first, he asserted an affirmative defense of insanity (12) and second, he wanted to rebut the prosecution's evidence of mens rea that he acted with the intent or knowledge that he was killing a police officer (13) by using evidence of his paranoid schizophrenia and the delusions that accompanied. (14)

The trial court judge issued a special verdict finding Clark guilty of first degree murder. (15) The judge specifically found that Clark caused the death of Officer Moritz and that Clark had not shown that he was insane at the time of the shooting. (16) The judge found that, although Clark suffered from documented paranoid schizophrenia, "the mental illness 'did not distort his perception of reality so severely that he did not know his actions were wrong." (17) Clark was sentenced to life imprisonment and he subsequently appealed. (18) The Arizona Court of Appeals affirmed Clark's conviction, ruling that the lower court's finding of sanity was supported by the evidence and that the trial court was not required to use the evidence of Clark's mental illness to directly negate mens rea. (19) Clark then appealed to the United States Supreme Court. (20)

Under Arizona law, a state court is restricted from considering evidence of mental illness to negate mens rea. (21) Evidence of mental illness is used solely to determine whether a defendant was insane at the time of the killing. (22) The Court found that the State of Arizona was justified in restricting evidence of mental illness to the insanity defense since the evidence can be misleading to the fact-finder. (23) According to the Court, restricting such evidence allows the trier of fact to focus on insanity, which if found, will lead to treatment. (24) If the evidence of mental illness is used to refute mens rea, a defendant can be acquitted or convicted of a lesser included charge and will receive no treatment for their illness. (25)

II. CRIMINAL INSANITY IN ALABAMA

The Supreme Court in the Clark case stated that "the insanity rule ... is substantially open to state choice." (26) The legitimacy of such a choice is better understood when a person considers the relationship between the legal ideas required for the insanity defense and the medical concepts that influence the expert testimony of psychologists and psychiatrists. (27) This is particularly important since medical definitions are subject to "flux and disagreement." (28) The M'Naghten rule, the prevalent standard for determining criminal insanity in American jurisdictions, states that:
   [I]t must be clearly proved that at the time of committing the
   offense, [the defendant] was laboring under such defect of reason,
   from disease of the mind, as not to know the nature and quality of
   the act he was doing, or if he did, not to know that what he was
   doing was wrong. (29)


The M'Naghten rule was followed in Alabama until 1887. (30) Then there was the case of Parsons v. State. (31) In this case, the defendants were charged with the murder of Bennett Parsons. (32) The defendants pled insanity. (33) The jury found both defendants guilty of murder in the second degree. (34) The Alabama Supreme Court reversed the conviction and adopted a new test for determining criminal insanity. (35)

In creating this new test, the court found that the current law on insanity had fallen behind the progress made by medical science in the thought and discovery on insanity. (36) Under the M'Naghten rule, the courts charged the jury as if no such mental disease could exist to destroy a person's power of self-control, and that the only way a defendant could be found guilty was if he retained a mental consciousness of right and wrong. (37) However, modern science had shown that such diseases existed where a person could lack self-control and the ability to know right and wrong. (38) As a result of this new medical knowledge, the Alabama Supreme Court adopted the irresistible impulse test which states:
   [A] defendant is ... not legally responsible, if, by reason of the
   duress of mental disease, he has so far lost the power to choose
   between the right and wrong, and to avoid doing the act in
   question, as that his free agency was at the time destroyed, and if
   at the same time, the alleged crime was so connected with such
   mental disease, as to have been the product of it solely. (39)


In other words, a defendant has the burden of proving that,
   to the reasonable satisfaction of the jury that he was so afflicted
   by disease of the brain when the offense was committed as to render
   him so insane that he did not know right from wrong with respect to
   the particular offense charged, or by reason of such mental disease
   he could not resist doing the wrong; and the crime must have been
   the product solely of such diseased mind. (40)


Alabama's criminal insanity defense law was further modified in 1977. (41) The Alabama Code definition of insanity followed the American Law Institute (ALI) test for criminal insanity. (42) In the Alabama Code, "it is an affirmative defense ... that, at the time of the commission of the [crime], the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts." (43) The burden is on the defendant to prove this by clear and convincing evidence. (44)

This assertion of the insanity defense represents a change from the insanity defenses formerly available in criminal trials. (45) A defendant was not responsible for his criminal conduct if "at the time of such conduct as a result of mental disease or defect he lack[ed] substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law" prior to Alabama Code [section] 13A-3-1. (46) Now, the insanity defense is more restrictive and deals only with a defendant's cognitive abilities. (47) The defendant must now show two things: (1) that he suffered from a serious mental disease or defect at the time of the shooting, and (2) that this disease or defect prevented him from appreciating the nature and quality or wrongfulness of his acts. (48)

In most cases involving an insanity defense, some form of psychiatric testimony is presented on the defendant's behalf to show that he/she suffered from a mental disease or defect. (49) However, simply having some mental disease or defect is not enough. (50) A defendant must also show that this disease prevented him/her from knowing that what he/she was doing was wrong. (51) In Ex parte Turner, the defendant was charged with the murder of his neighbor. (52) The defendant entered a plea of not guilty by reason of insanity. (53) At trial, members of Turner's family as well as members of the psychiatric community testified about his history of mental illness and hallucinations. (54) The jury found the defendant guilty of murder. (55) The Alabama Supreme Court reversed the conviction, finding that the evidence of the defendant's insanity was so strong and overwhelming that the jury had to find him insane at the time the crime was committed. (56)

Alabama and Arizona have very similar insanity defense statutes. Both require a defendant to prove that he suffers from a severe mental disease or defect and that disease or defect prevented him from knowing that what he was doing was wrong. (57) This establishes a basic understanding necessary to delve into the question of whether Alabama courts would limit a defendant's presentation of evidence of mental disease to the insanity defense.

III. IN ALABAMA, CAN A DEFENDANT HAVE A SEVERE MENTAL DISEASE OR DEFECT YET STILL HAVE THE MENS REA TO COMMIT MURDER?

For most crimes, the law requires that along with a voluntary or conscious act, there must also be mens rea or intent. (58) Many crimes require a specific intent. (59) Some within the legal profession view the insanity defense not as a special defense, but as a different way of saying that an essential element of the crime is missing. (60) They view the insanity defense as a way of negating the criminal element necessary in most crimes, that of intent or mens rea. (61)

When a defendant asserts the affirmative defense of insanity they are examined by a psychiatrist. (62) The first step for any psychiatrist is to diagnose the defendant with some form of mental disease. (63) Once that step is completed, the psychiatrist must determine how severe the defendant's functional impairment actually is (or the severity of his mental disease). (64) The psychiatrist must then make inferences as to whether the defendant has the capacity for judgment. (65)

The term judgment is used to designate a process or ability to form an opinion or evaluate a situation by discerning and comparing. (66) When this term is applied to the law, the question becomes whether the defendant had the ability to first, understand what he was doing, and Second, evaluate the situation in terms of whether it was right or wrong. (67) When viewing the elements of a crime and the application of the insanity defense in this way, it is possible to imagine a situation where a defendant can have a severe mental disease or defect yet still have the ability to discern whether or not his conduct is right or wrong, legal or illegal. It is possible for a psychiatrist to find that a defendant suffers from a severe mental disease (e.g., schizophrenia), yet still not view him as legally insane. (68) Take for example the cases of Patricia Bullard and Leroy Ware.

In Bullard v. State, (69) the defendant's psychologist admitted that individuals suffering from paranoid schizophrenia may be able to distinguish right from wrong. (70) Moreover, the psychologist testified that fleeing from the scene of a crime (which the defendant did) would suggest that the perpetrator knew he/she had done something wrong. (71) The jury found Bullard guilty of the assault. (72) The Alabama Court of Criminal Appeals affirmed the conviction finding that the burden of proving insanity "is not overcome by expert testimony of the defendant's insanity alone." (73) The court found that the defendant did not "clearly and conclusively" establish her insanity at the time of the shooting to the jury's satisfaction. (74) Leroy Ware was tried for intentionally causing serious physical injury to the eight-year-old son of his live-in girlfriend with his fists and a belt. (75) At trial, Leroy pied not guilty by reason of severe mental disease or defect. (76) The jury found Leroy guilty. (77) The Alabama Supreme Court affirmed the conviction. (78) The court found that Leroy had clearly established at trial that he had a mental disease at the time of the assault; (79) however, the court "[could not] say that there was overwhelming, uncontradicted and clear and strong evidence that this disease rendered the [defendant] unable to appreciate the nature and quality or wrongfulness of his acts." (80) The court found that the evidence presented by Leroy showed that he had a "control" problem rather than a "cognitive" problem. (81) In other words, the court found that Leroy had shown that his schizophrenia affected his ability to control his actions but not his ability to know whether or not his actions were wrong or illegal. (82)

Under Alabama law "neither abnormality nor subnormality [i.e. retardation] precludes liability for a crime where there exists sufficient mental capacity to entertain the requisite criminal intent." (83) In psychiatry, the idea that relates mental illness to legal insanity is viewed as a "threshold." (84) Persons with certain mental disorders that are not serious enough would not be considered insane. (85) For example, in the Alabama insanity defense statute, abnormalities manifested only by repeated criminal or otherwise antisocial conduct are not included within the definition of "severe mental disease or defect." (86)

Under Alabama law, a defendant can have a mental disease or defect, yet still have the ability to form mens rea or intent. (87) However, Clark raised another tricky issue about the presentation of evidence of mental disease. (88) Particularly, can a defendant use evidence of mental illness to rebut the criminal intent necessary to commit a crime? The next section attempts to answer that question for the State of Alabama.

IV. IS EVIDENCE OF MENTAL ILLNESS CONSIDERED TO REBUT THE CRIMINAL INTENT TO COMMIT n CRIME IN ALABAMA?

In Alabama, a defendant has the burden of proving his/her insanity by clear and convincing evidence to the trier of fact. (89) In determining what evidence a defendant can submit concerning insanity, courts subscribe to the wide latitude rule:
   The courts have adhered to the wide latitude rule relating to the
   admissibility of the conduct and condition of a criminally accused
   offered in support of his plea of insanity. This wide latitude has
   encompassed many forms of conduct and conditions which the trial
   courts have held are relevant to show his mental incapacity at the
   time in issue. (90)


Under Alabama law the results of mental examinations are admissible to show a defendant's mental condition at the time of the offense. (91) Of course, the testimony of psychiatric experts is allowed, as well as that of lay persons who know or observed the defendant before and after the alleged crime. (92)

Many within the legal community know that any claim that a defendant makes to assert his innocence (e.g., alibi, justification, insanity) can be rebutted by the prosecution. But, what about a defendant's ability to rebut prosecution evidence; specifically, can evidence of his mental illness be used to rebut the prosecution's claim that he possessed the intent necessary to commit the crime? As stated in the previous section, it is settled law in Alabama that a defendant can suffer from a severe mental disease or defect and still appreciate the quality or wrongfulness of his actions. However, in Clark, Eric Clark sought to use evidence of his schizophrenia and delusions to rebut the prosecution's argument that he had the specific intent to shoot a police officer. (93) Clark wanted to use the evidence of his delusions about aliens to show that he did not believe or know that he was killing a police officer when he shot Officer Moritz. (94) Therefore, he lacked the specific intent or mens rea to be found guilty of first-degree murder. (95) Would a defense like that work in Alabama?

The American Psychiatric Association, along with the American Psychological Association and the American Academy of Psychiatry and the Law argued that Clark's argument should work. (96) In their amicus curiae brief, they argued that "expert evidence about mental disorders ... can bear directly on mens rea questions." (97) According to them, the delusions of schizophrenia "can affect an individual's beliefs and, hence, the individual's understanding of what he is doing and, hence, his knowledge, intent, or purposes." (98) They contend that, if a court does not allow the consideration of expert testimony on "delusions and all serious cognitive impairments[,]" then the trier of fact will miss "relevant, reliable, nonprejudicial evidence and reach false factual findings." (99)

The Westcott case sheds some light on the issue. (100) In Westcott, the defendant was charged with impersonating a U.S. Secret Service Agent. (101) The defendant filed notice of his intent to assert an insanity defense, but later withdrew that defense. (102) Instead, the defendant "sought to use expert psychiatric testimony only to demonstrate

that he lacked the necessary mens rea for the specific intent crime with which he was charged." (103) The Government filed a motion in limine to prohibit the use of the testimony. (104) The district court ruled that since the expert's testimony constituted evidence of insanity, if the defendant introduced the testimony, the court would issue a jury instruction on the insanity defense. (105) The defendant issued a conditional guilty plea and reserved this issue for appeal. (106)

The Eleventh Circuit Court of Appeals found that "psychiatric evidence which negates mens rea [also] negates an element of the offense." (107) Only evidence that a defendant lacked the required mens rea is admissible to negate it, not evidence that the defendant lacks the capacity to form mens rea. (108) The defendant's psychiatrist testified at the motion in limine hearing that the defendant truly "believed himself to be a Secret Service agent and truly believed the representations that he made." (109) Since the expert's testimony supported the idea that the defendant lacked the required mens rea, his testimony was admissible. (110) The Eleventh Circuit upheld the district court's ruling requiring the psychiatric testimony to be accompanied by an insanity defense jury instruction. (111)

When one reads the wide latitude rule of the Knight case, it would appear that a defendant would have the ability to present psychiatric testimony specifically to rebut mens rea. Moreover, the Lawson case specifically allows such evidence for that purpose. However, one must look at Alabama's law in its entirety. In Knight, the court restricted the use of the wide latitude rule to cases where the defendant instituted a plea of insanity. (112) However, in Westcott, there was no evidence that the district court would prevent the jury from considering the defendant's mental illness evidence to determine whether the Government had proven its case (i.e., whether the defendant intended to impersonate a Secret Service agent). (113) Yet, the Westcott court required that the evidence be accompanied by a jury instruction on the insanity defense. (114) Moreover, the Alabama Rules of Criminal Procedure state that mental examination evidence is only admissible at trial if the defendant has asserted and not withdrawn an insanity plea. (115) Therefore, it would appear that a defendant can not use evidence of mental illness to only negate mens rea. Although, there is no specific rejection of the idea, a court will most likely rule that such explicit evidence must be accompanied by a jury instruction on or a consideration of insanity (in the case of a bench trial) for the evidence to be admissible. Just as stated in the Clark case, limiting mental illness evidence to the insanity defense makes the issues easier to understand for the fact-finder. (116)

V. WHAT IS THE ROLE OF PSYCHIATRIC EXPERT TESTIMONY IN PROVING INSANITY AND THE ABILITY OF A DEFENDANT TO KNOW RIGHT FROM WRONG IN ALABAMA?

A. The Frye Standard and Expert Psychiatric Testimony

In Alabama, the courts follow the standard expressed in Frye v. United States (117) when determining whether or not to allow expert testimony. According to Frye, a court will accept expert scientific testimony if it is "sufficiently established [that the scientific principle or evidence has] gained general acceptance in the particular field in which it belongs." (118) One of the determinative factors is "whether the test [or evidence] relates to [the] mental state [of the defendant] as opposed to [his] physical condition." (119) Although the Frye standard appears to be more permissive than say the Daubert test, (120) expert psychological testimony has been excluded under the Frye test. (121) For instance, certain variables can lead to the inadmissibility of expert psychiatric testimony:
   [T]he extent to which the testimony is group or statistically based
   as opposed to being focused on the specific defendant; the extent
   to which it departs from the medical model of mental disability
   which focuses on organic causes and instead endorses the idea of
   external causes of mental illness; the extent to which the
   testimony goes beyond well-accepted criminal law views; and the
   extent to which the evidence merely provides common knowledge and
   crosses into the fact finder's function. (122)


Christopher Slobogin sets out five developmental stages of expert evidence law. (123) According to him, expert witnesses are viewed in a different light by the fact-finder depending on the evidence standard used in a particular jurisdiction. (124) Under the Frye standard, according to Slobogin, psychiatric experts are viewed as representatives. (125) Slobogin compares jurors in Frye jurisdictions to preteens who check with authority figures before they accept something as the truth. (126) Under Frye, there must be a showing of "a sizeable number of other professionals in the field [that] endorse the same sort of technique or theory that the expert witness does." (127) Frye, according to Slobogin, does not require any proof of validity; (128) the testimony "must only be representative of common wisdom." (129)

According to some within the legal and psychiatric communities, evidence law should be highly flexible in dealing with expert psychiatric testimony. (130) Evidence law should "take into account not only the goal of obtaining expert information that is as valid as possible, but also the norms incorporated in the substantive criminal law, the inevitable deficiencies of behavioral science in determining past mental states, and the interests of criminal defendants and society in fair [trial proceedings]." (131) Evidence law should not prohibit a defendant's effort to reconstruct his state of mind at the time of the crime with which he is charged. According to many in the legal and psychiatric communities, if there is no scientific way of gauging the accuracy of any particular opinion "the most sensible approach is to hear from those who have specialized knowledge about the issue in question...." (132) In the views of many proponents in support of leeway for the presentation of mental disorder testimony on behalf of defendants, "[a] criminal justice system that routinely prevented criminal defendants from offering plausible stories based on theories that are accepted by [psychiatric] professionals could well fall into disrepute." (133)

B. Mental Disease Evidence

As stated earlier, certain mental disorders are viewed by psychiatrists, as well as the legal community, as not reaching the level of severity required for the insanity defense while others are considered severe enough to reach the level necessary for such a defense. (134) To further prove this point, the Diagnostic and Statistical Manual of Mental Disorders (DSMIV) (135) carries a caveat as to its application in the legal setting; it states that the conditions listed in it do not impliedly meet the legal criteria for mental disease. (136) The disorders and conditions listed may not be relevant to legal judgments concerning individual responsibility, disability, determination and competency. (137) Moreover, a diagnosis under the DSM-IV provides no implications as to the cause of some mental disorders or the degree of control a person would have while laboring under some of these conditions. (138) For psychiatrists to testify to these issues, additional information is needed; for example how functional impairments affect a defendant's particular abilities. (139)

According to the American Bar Association (ABA), the severe mental disease or defect necessary for an insanity defense "must be attributable to a substantial process of functional or organic impairment," not just "to defects of character or strong passion." (140) If these "lesser" mental defects were allowed, a "normal defendant who became abnormally impassioned could be said to have a mental disease." (141) However, according to the ABA, the functional or organic impairment does not need to be chronic or enduring. (142) The ABA, for example, considers an acute psychotic break to be a mental disease even in the absence of an underlying psychotic disorder. (143)

The American Psychiatric Association (APA) states that the only mental illnesses that can be considered serious (or severe) must reach the level of psychosis, not just personality disorders or antisocial personalities. (144) In practice, psychiatrists have found that there is an overlap between defective understanding and the ability to control one's behavior. (145) The diagnostic methods and instruments used by psychiatrists and psychologists to determine whether a person suffers from a mental illness may not be as reliable as the experts would like but they play an instrumental role in the clinician's practice. (146) According to the APA, expert evidence "is only the best that human study, based on clinical experience and scientific research, has to offer on mental-state issues." (147) This is essentially all that Frye or Alabama evidence law asks for--only generally accepted, and not infallible, evidence. (148)

C. Psychiatric Community Views on the Insanity Defense Statute

According to Robert Schopp, insanity defense statutes are usually composed of three clauses. (149) In the Alabama defense statute, the first clause is the exculpatory clause. (150) The exculpatory clause states that a defendant cannot be held responsible for his conduct. (151) The next clause is the disability clause which "identifies the abnormal condition that underlies the excusing clause that provides the justification for the exculpatory clause." (152) In other words, it tells you what disorder a defendant must have to possibly be excused from punishment. (153) The disability clause also limits the exculpatory ability of the excusing clause by limiting the defendants that fall within the statute. (154) The third and final clause is the excusing clause that identifies the functional impairment that makes the defendant not responsible and makes finding guilt inappropriate.155 The excusing clause provides courts with "a selection criteria that the court can use to identify defendants who appropriately fall within the scope of the [insanity] defense." (156) It provides the primary justification within the insanity defense. (157)

The defense must provide evidence that, when the defendant committed the crime with which he/she is charged, his/her conduct was guided by a severely impaired thinking process. (158) Therefore, to prove what the defendant was thinking at the time of the crime, the defense must illicit testimony about the defendant's acts or words at the time of the offense. (159) An expert may also testify about his/her evaluations of the defendant's cognitive impairment before or after the crime was committed. (160)

D. Psychiatric Testimony at Trial

The first duty of a psychiatrist in court is to present medical information and opinion evidence about the defendant's mental state and motivation, while also explaining, in detail, the psychiatrist's conclusions. (161) However, psychiatrists may also be asked to reach beyond their field of expertise. (162) The expert must not only deal with medical concepts and issues, he/she must also state an opinion about the "probable relationship" between those medical concepts and legal or moral ideals like free will. (163)

When giving testimony at trial, the goal of psychiatrists is to address and inform the jury as to the defendant's judgment in the psychological sense. (164) As a result, conclusions about legal judgment and insanity can flow naturally from the fact-finder. (165) Psychiatrists believe that the most helpful evidence they can provide is not conclusions about sanity or complex information about a defendant's diagnosis, but descriptions of a defendant's behaviors and responses that can add to the testimony that a jury has already heard, helping to paint a larger picture. (166)

The main goal of a jury or a judge when a defendant asserts an insanity defense is to determine whether the defendant's disordered psychological processes directly affected the decision to perform the act constituting the offense. (167) Therefore, an expert must testify as to the presence or lack of the kind of dysfunction that practicing psychiatrists ordinarily evaluate in practice. (168) A psychiatrist must be able to relate the defendant's actions back from the time of their examination of the defendant to the time of the offense. (169) The psychiatrist must rely not only on their examination of the defendant, but also on statements of witnesses and police reports documenting the activities of the defendant from before and after the crime. (170)

When psychiatric experts are called to testify at trial, they are forced to speak in legal language, thereby adapting the terminology of their field to the parameters of the law. (171) According to the APA, a psychiatrist must be allowed to testify fully about a defendant's psychiatric diagnosis, mental state and motivation at the time of the act, in clinical and commonsense terms. (172) The APA believes that this will allow the fact-finder to reach the ultimate conclusion of whether a defendant is legally insane without undue influence. (173)

Psychiatrists, when called as expert witnesses, generally give three types of evidence that provide insight into a defendant's ability to form the mens rea to commit a crime. (174) The first type is observation evidence. (175) This includes testimony about what the defendant did and what he said. (176) Observation evidence also includes expert testimony about how the defendant thinks or his behavioral characteristics usually gained from the psychiatrist's personal examination. (177) This evidence is relevant in that it can give insight into what the defendant was thinking at the time of the crime. (178) The second type of mens rea evidence is mental disease evidence. (179) This evidence almost always comes from professional psychologists or psychiatrists whose expert opinion is based on their examination of the defendant. (180) The final type of evidence is capacity evidence. (181) This testimony also comes from expert witnesses and gives information about the defendant's capacity for "cognition and moral judgment" and concentrates on the details of the defendant's mental condition that make the difference between sanity and insanity. (182)

VI. CONCLUSION

Based on Alabama's insanity law, a defendant can be mentally ill yet still have the ability to form the mens rea or intent to commit a crime. Alabama courts do not expressly prohibit the consideration of mental illness evidence to negate mens rea. However, scholars agree that mental illness evidence should not be allowed without an insanity plea because it can confuse the issues for the fact-finder. Those who would allow mental illness evidence without an insanity plea, caution courts to be sure that the evidence is keyed into a specific issue like negating specific intent. In Alabama state courts, mental illness evidence in the form of mental examinations, expert and lay witness testimony, is only admissible with an insanity plea. Is this fair?

The issue should be considered in terms of fairness to not only the defendant but the state or prosecution and the jury as well. If a defendant does not specifically assert a plea of insanity, the prosecution may not be aware that the defendant is intending to introduce mental illness testimony to rebut intent. If the defendant can spring this type of evidence on the prosecution at trial, the state will have to ask for a continuance to find an expert(s) and/or lay witness(es) to rebut the defendant's mental illness testimony. This will lead to longer trials. The Alabama Rules of Criminal Procedure allows the prosecution to view the results of mental examinations that the defendant plans to use at trial; however, the prosecution has to request it, meaning that they have to be aware of the existence of the evidence. This perhaps is the reason why the courts only allow such evidence at trial when accompanied by an affirmative defense of insanity. Moreover, mental illness evidence can be confusing to a jury. The jury can be mystified about how and to what they should apply the mental illness evidence that they receive. If an expert can testify as to whether a defendant knew what he/she was doing and to whether or not he/she knew it was wrong, that can lead to testimony that is too difficult for the trier of fact to understand. It would require a jury to make leaps and inferences that many mental health professionals find difficult.

As for the part that psychologists and psychiatrists play in the insanity defense, the Frye standard deems generally accepted tests and evidence admissible at trial to prove legal insanity. The DSM-IV warns that it does not lend itself to legal conclusions on capacity and competency. Although the methods for diagnosing mental illness are not perfect, they need not be under Alabama's evidence law. According to psychiatrists, their role as experts is to help paint a more detailed picture of the defendant's mind set at the time of the crime with the help of the three types of evidence--observation, mental disease, and capacity. They feel they should be given the largest amount of leeway possible to give the fact-finder the most amount of evidence to make the best conclusion possible.

Will a balance between the preferences of defendants, prosecutors and the psychological community concerning mental illness evidence and mens rea ever be reached? That is a difficult question to answer. Clark v. Arizona is a relatively new Supreme Court decision. It will take time for courts around the country to begin to truly explore the issues raised before any changes will be made to the system.

(1.) Clark v. Arizona, 126 S. Ct. 2709 (2006).

(2.) Id. at 2737.

(3.) Id. at 2716.

(4.) John Gibeaut, A Matter Over Mind, 92 A.B.A.J. 32, 33 (2006).

(5.) Id. at 33.

(6.) Id.

(7.) Clark v. Arizona, 126 S. Ct. 2709, 2716 (2006).

(8.) Id.

(9.) Gibeaut, supra note 4, at 33.

(10.) Clark, 126 S. Ct. at 2716.

(11.) Id.

(12.) In Arizona, a defendant can be found guilty except insane if he "was afflicted with a mental disease of such severity that [he] did not know the criminal act was wrong." Id. at 2717 (citing ARIZ. REV. STAT. ANN. [section] 13-502(A) (2001)).

(13.) Id.

(14.) Clark, 126 S. Ct. at 2717. A psychiatrist for the defense as well as lay witnesses testified that Clark suffered from paranoid schizophrenia with delusions that Flagstaff was populated with aliens, some of whom were impersonating government agents. Id. The psychiatrist further testified that Clark was incapable of luring the officer or understanding right from wrong and that he was insane at the time of the killing. Id. at 2717-18. A psychiatrist for the State of Arizona testified that Clark had paranoid schizophrenia; however he argued that this did not keep him from appreciating the wrongfulness of his conduct. Id. at 2718. The state psychiatrist looked to Clark's behavior the night of the shooting: circling the neighborhood blaring music, fleeing the scene after the shooting, and hiding the gun as evidence that Clark knew right from wrong. Id. at 2718.

(15.) Id. at 2717-18.

(16.) Id. at 2718.

(17.) Id.

(18.) Id.

(19.) Id.

(20.) Id.

(21.) Id.

(22.) Id.

(23.) Clark, 126 S. Ct. at 2736. But see United States v. Lawson, 459 F. Supp. 2d 1192, 1197 (M.D. Ala. 2006) ("The Court's holding ... does not affect the general admissibility of such evidence under [the Insanity Defense Reform Act]; it simply approves the State of Arizona's rule excluding it in its state criminal proceedings.").

(24.) Id. at 2736. "If the defendant were permitted to introduce evidence of general mental-health maladies in an attempt to negate the mens rea element of a specific intent crime, this would be little more than a backdoor entrance for a form of insanity defense excluded by Insanity Defense Reform Act." Lawson, 459 F. Supp. 2d at 1197. "'Because psychiatric evidence (1) will only rarely negate specific intent, (2) presents an inherent danger that it will distract the jury from focusing on the actual presence or absence of mens rea, and (3) may easily slide into wider usage that opens up the jury to theories of defense more akin to justification ... district courts must examine such psychiatric evidence carefully to ascertain whether it would, if believed, support a legally acceptable theory of lack of mens rea.'" Id. at 1197-98 (quoting United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990)). The Insanity Defense Reform Act, 18 U.S.C. [section] 17 (2007) is similar to Ala. Code [section] 13A-3-1. Knight v. State, 907 So. 2d 470, 480 (Ala. Crim. App. 2004).

(25.) Clark, 126 S. Ct. at 2736.

(26.) Id. at 2722.

(27.) Id.

(28.) Id.

(29.) Parsons v. State, 2 So. 854, 857 (Ala. 1887).

(30.) Id. at 864-65. Now, along with seventeen other states and the federal government, Alabama follows a version of M'Naghten that contains both cognitive incapacity and moral incapacity components. Clark, 126 S. Ct. at 2720.

(31.) Parsons, 2 So. at 866.

(32.) Parsons, 2 So. at 850.

(33.) Id. at 856. The daughter of the victim, wanted to show that she had always been "an idiot" and the mother claimed that her assisting in the killing of her husband was the result of an insane delusion that the deceased had supernatural powers that made her sick and that he was going to use those powers to kill her. Id. at 854.

(34.) Id. at 855.

(35.) Id. at 855.

(36.) Id. at 857.

(37.) Id. at 860.

(38.) Id.

(39.) Id. at 855.

(40.) Streeter v. State, 177 So. 2d 826, 827-28 (Ala. 1965).

(41.) ALA. CODE [section] 13A-3-1 (2006).

(42.) ALA. CODE [section] 13A-3-1 (commentary).

(43.) Id.

(44.) Id. At one time, under a not guilty plea, a defendant was allowed to offer any sort of evidence at trial to negate mens rea. RALPH SLOVENKO, PSYCHIATRY AND CRIMINAL CULPABILITY 42-43 (1995). If the defense offered witnesses on insanity, the prosecutor would have to ask for a continuance in order to get testimony in rebuttal. Id. at 43. To prevent this kind of delay and inefficiency, the courts and legislatures developed the defense of not guilty by reason of insanity, to be entered before the defendant offers evidence of insanity at trial. Id. The prosecutor would then have the opportunity to examine and evaluate the accused. Id.; see also ALA. R. CRIM. P. 16.2 (which allows the prosecution to review the results of mental examinations that the defense plans to use at trial).

(45.) Ware v. State, 584 So. 2d 939, 942 (Ala. Crim. App. 1991).

(46.) Id.

(47.) Id.

(48.) Id.

(49.) See, e.g., Clark v. Arizona, 126 S. Ct. 2709 (2006); Streeter v. State, 177 So. 2d 826 (Ala. 1965); Knight v. State, 907 So. 2d 470 (Ala. Crim. App. 2004).

(50.) Brackin v. State, 417 So. 2d 602, 604 (Ala. Crim. App. 1982) (stating that "legal insanity does not embrace every kind of mental disease and disorder that renders a person not responsible for his acts" and specifically excludes emotional insanity, moral obliquity, and moral idiocy); see also

Johnston v. State, 497 So. 2d 844, 849 (Ala. Crim. App. 1986); ARIZ. REV. STAT. ANN. [section] 13-502(A) (2001), cited in Clark, 126 S. Ct. at 2717.
   Mental disease or defect does not include disorders that result
   from acute voluntary intoxication or withdrawal from alcohol or
   drugs, character defects, psychosexual disorders or impulse control
   disorders. Conditions that do not constitute legal insanity include
   but are not limited to momentary, temporary conditions arising from
   the pressure of the circumstances, moral decadence, depravity or
   passion growing out of anger, jealousy, revenge, hatred or other
   motives in a person who does not suffer from a mental disease or
   defect or an abnormality that is manifested only by criminal
   conduct.


Id.

(51.) ALA. CODE [section] 13A-3-1 (2006).

(52.) Exparte Turner, 455 So. 2d 910, 910 (Ala. 1984).

(53.) Id.

(54.) Id. at 912-13. The defense read into evidence the deposition of a staff psychiatrist at Bryce Hospital who diagnosed the defendant with paranoid schizophrenia stating that the defendant "had pretty fixed delusions that people [were] against him ... specifically a neighbor." Id. at 912. The psychiatrist had prescribed the defendant Haldol, an anti-psychotic medication. Id. The psychiatrist also testified that the defendant was suffering from a delusion at the time of the killing. Id. A psychiatric social worker testified about Turner's "bizarre" entries in a notebook and his delusions of being a CIA or FBI agent. Id. at 912-13.

(55.) Turner, 455 So. 2d at 910.

(56.) Id. at 913 (this evidence was uncontradicted by the State).

(57.) See ALA. CODE [section] 13A-3-1 (2006); ARIZ. REV. STAT. ANN. [section] 13-502(A) (2001).

(58.) SLOVENKO, supra note 44, at 42.

(59.) For assault in the first degree, a person must have the intent to cause serious physical injury, or the intent to disfigure someone seriously and permanently. ALA. CODE [section] 13A-6-20 (2006). To

commit murder, a person must have the intent to cause the death of another person. ALA. CODE [section] 13A-6-2 (2006).

(60.) SLOVENKO, supra note 44, at 42.

(61.) Id. at 43.

(62.) Id.

(63.) NORMAN J. FINKEL, INSANITY ON TRIAL 90 (1988).

(64.) Id.

(65.) Id.

(66.) SLOVENKO, supra note 44, at 91.

(67.) Id.

(68.) This is the role that every psychiatrist hired by the prosecution is called to fulfill.

(69.) Bullard v. State, 408 So. 2d 164 (Ala. Crim. App. 1981). Patricia Bullard was charged with assault in the first degree for shooting into the car of her friend and injuring him, his wife, and their grandson. Id. at 165. At trial, Bullard's sole defense was that she was not guilty by reason of insanity and offered testimony from family members about her behavior. Id. Bullard also produced expert testimony from a psychologist who testified that he diagnosed her as suffering from paranoid schizophrenia. Id. at 166.

(70.) Id.

(71.) Id.

(72.) Id.

(73.) Id. at 167.

(74.) Id. at 166-67.

(75.) Ware v. State, 584 So. 2d 939, 941 (Ala. Crim. App. 1991).

(76.) Id. at 943.

(77.) Id. at 942.

(78.) Id. at 947.

(79.) Id. at 942. Expert testimony was offered on Leroy's behalf by two psychiatrists. Id. One treated him from the early 1980s until October of 1988 and diagnosed him with chronic schizophrenia. Id. at 943. This expert described chronic schizophrenia as "one of the major mental illnesses which involves [among other things] difficulty separating what's real from what's not." Id. The psychiatrist testified that he had prescribed three medications to Leroy one of which was Stelazine. Id. Stelazine, according to the psychiatrist,
   makes a person better able to concentrate and control his own
   thoughts, to pace, to regulate how fast his thoughts go, to direct
   his thoughts and be able to think about what he wants to rather
   than have things just get on his mind and stick and not be able to
   get them off, or rather than just have his thoughts skip from one
   thing to another without his control. Id. The second psychiatrist
   testified that she had treated Leroy on and off since 1986 and
   diagnosed Leroy as a paranoid type schizophrenic. Id. at 944.


(80.) Ware, 584 So. 2d at 945.

(81.) Id. at 946 (court noted that "volitional" or control problems were omitted from Alabama's new insanity defense statute).

(82.) Id. at 945-46.

(83.) Lakey v. State, 61 So. 2d 117, 120 (Ala. 1952).

(84.) FINKEL, supra note 63, at 88.

(85.) Id.

(86.) ALA. CODE [section] 13A-13-1(b) (2006).

(87.) See Ware, 584 So. 2d at 943-44; Ex parte Turner, 455 So. 2d 910, 912 (Ala. 1984); Bullard v. State, 408 So. 2d 164, 166 (Ala. Crim. App. 1981).

(88.) Clark v. Arizona, 126 S. Ct. 2709, 2717 (2006).

(89.) ALA. CODE [section] 13A-3-1(c) (2006).

(90.) Knight v. State, 907 So. 2d 470, 475 (Ala. Critu. App. 2004). This same wide latitude rule is applied to the State in decisions relating to the admissibility of the conduct and condition of the accused offered by the State in opposition to the accused's plea of insanity. Id. "'Evidence of the prosecution tending to rebut a defense will not be excluded because it also tends to show the commission of another crime by the accused.'" Id. (citation omitted); see also Asbill v. State, 390 So. 2d 1168, 1171 (Ala. Crim. App. 1980) (discussing that Alabama law allows broad inquiry of expert witnesses as to the sanity of a defendant on a plea of not guilty by reason of insanity).

(91.) ALA. R. CRIM. P. 11.2 (stating that mental illness evidence can only be used if the defendant is asserting an affirmative insanity defense); see also ALA. R. CRIM. P. 16.2 (allows the State, upon request, to receive the results of any mental examinations the defense has performed on their behalf that he plans to use at trial).

(92.) See generally Ware v. State, 584 So. 2d 939 (Ala. Crim. App. 1991); Bullock v. State, 586 So. 2d 284 (Ala. Crim. App. 1991) (lay and expert witness testimony discussed).

(93.) Clark v. Arizona, 126 S. Ct. 2709, 2717 (2006).

(94.) Id.

(95.) Id.

(96.) Brief Amicus Curiae for the Am. Psychiatric Ass'n et al., Supporting Petitioner at 12, Clark v. Arizona, 126 S. Ct. 2709 (2006) (No. 05-5966), 2006 WL 247277.

(97.) Id.

(98.) Id. at 12-13.

(99.) Id. at 12-13.

(100.) United States v. Westcott, 83 F.3d 1354 (11th Cir. 1996). This case is an Eleventh Circuit case originating in the Middle District of Florida. Id. at 1355. Although it is not based on Alabama law, it is based on 18 U.S.C. [section] 17, the federal insanity defense statute, which is identical to Alabama's criminal insanity defense statute. Knight v. State, 907 So. 2d 470, 480 (Ala. Crim. App. 2004).

(101.) Westcott, 83 F.3d at 1356.

(102.) Id.

(103.) Id.

(104.) Id.

(105.) Id. at 1357.

(106.) Id.

(107.) Id. at 1358; see also SLOVENKO, supra note 44, at 42.

(108.) Westcott, 83 F.3d at 1358; see also United States v. Lawson, 459 F. Supp. 2d 1192, 1196-97 (M.D. Ala. 2006).
   Psychiatric evidence tending to negate specific intent must show
   not merely that the defendant was unable to reflect properly on, or
   control, her actions or motivations ... the psychiatric evidence
   must focus on the defendant's specific state of mind at the time of
   the offense and show that, because of the defendant's mental
   condition, [he or she] did not have the specific intent necessary
   to commit the crimes charged.


Id.

(109.) Westcott, 83 F.3d at 1358.

(110.) Id.

(111.) Id. at 1359.

(112.) Knight v. State, 907 So. 2d 470, 475 (Ala. Crim. App. 2004).

(113.) Westcott, 83 F.3d at 1358.

(114.) Id.

(115.) ALA. R. CRIM. P. 11.2.

(116.) Clark v. Arizona, 126 S. Ct. 2709, 2736 (2006).

(117.) Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

(118.) Ex parte Dolvin, 391 So. 2d 677, 679 (Ala. 1980) (citing Frye, 293 F. at 1014); see also Ex parte Perry, 586 So. 2d 242, 247 (Ala. 1991), superseded by statute, ALA. CODE [section] 36-18-30 (2006) (making DNA evidence admissible and accepted in Alabama courts).

(119.) Dolvin, 391 So. 2d at 679.

(120.) Christopher Slobogin, The Admissibility of Behavioral Science Information in Criminal Trials, From Primitivism to Daubert to Voice, 5 PSYCHOL. PUB. POL'Y & L. 100, 105 (1999). The Daubert test treats the judge as a "gate-keeper." Id. at 100 n.2. The judge's role is two-fold: first, the judge must screen expert testimony for its probative value and helpfulness; second, the judge must look at whether the basis of the testimony can be and has been tested scientifically. Id. at 105.

(121.) Id. at 106, 108 (discussing how criminal courts seem willing to allow testimony by any mental health professional with a high enough level of education and training).

(122.) Id. at 106-07.

(123.) Id. at 107.

(124.) Id. at 107-08.

(125.) Id. at 109.

(126.) Id.

(127.) Id.

(128.) "[I]nsanity is [after all] a matter of uncertainty." ROBERT F. SCHOPP, AUTOMATISM, INSANITY, AND THE PSYCHOLOGY OF CRIMINAL RESPONSIBILITY: A PHILOSOPHICAL INQUIRY 169 (1991).

(129.) Slobogin, supra note 120, at 109.

(130.) Id. at 101.

(131.) Id.

(132.) Id. at 112. Psychiatric testimony that mitigates a defendant's guilt should be heard even if its validity cannot be proven. See id. at 116.

(133.) Id. at 119.

(134.) FINKEL, supra note 63, at 88; see also Johnston v. State, 497 So. 2d 844, 849 (Ala. Crim. App. 1986); Brackin v. State, 417 So. 2d 602, 604 (Ala. Crim. App. 1982).

(135.) The DSM-IV is the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition is published by the American Psychiatric Association. SLOVENKO, supra note 44, at 55.

(136.) Id. at 58; see also SCHOPP supra note 128, at 169-76 (discussing how the DSM-IV does not lend itself to legal conclusions on capacity and competency).

(137.) SLOVENKO, supra note 44, at 58.

(138.) Slobogin, supra note 120, at 59.

(139.) Id. at 58-59. To ascertain information about cognition and control, psychiatrists should look to the history of the individual; experts often trace the defendant's history from childhood to the present. See SLOVENKO, supra note 44, at 44.

(140.) Id. at 62.

(141.) Id.

(142.) Id.

(143.) Id.

(144.) Id.

(145.) Insanity Def. Work Group, American Psychiatric Association Statement on the Insanity Defense, in 2 THE ROLE OF MENTAL ILLNESS IN CRIMINAL TRIALS, THE INSANITY DEFENSE: THE AMERICAN DEVELOPMENTS 117-24 (Jane C. Moriarty ed., 2001).

(146.) Id. at 122.

(147.) Brief Amicus Curiae for the Am. Psychiatric Ass'n et al., Supporting Petitioner, supra note 96, at 28.

(148.) Slobogin, supra note 120, at 109.

(149.) SCHOPP, supra note 128, at 169-76.

(150.) ALA. CODE [section] 13A-3-1(a) (2006) ("It is an affirmative defense to prosecution for any crime").

(151.) SCHOPP, supra note 128, at 169.

(152.) Id.; see, e.g., ALA. CODE [section] 13A-3-1(a) ("the defendant, as a result of severe mental disease or defect").

(153.) SCHOPP, supra note 128, at 169-70.

(154.) Id. at 170-71.

(155.) Id. at 169; see, e.g., ALA. CODE [section] 13A-3-1(a) ("was unable to appreciate the nature and quality or wrongfulness of his acts").

(156.) SCHOPP, supra note 128, at 169.

(157.) Id. at 170.

(158.) Id. at 200.

(159.) Id.

(160.) Id.

(161.) Id.

(162.) Id.

(163.) Id.

(164.) FINKEL, supra note 63, at 90.

(165.) Id.

(166.) Id. at 99.

(167.) SCHOPP, supra note 128, at 201.

(168.) Id.

(169.) SLOVENKO, supra note 44, at 242.

(170.) Id.; see also Brackin v. State, 417 So. 2d 602, 606 (Ala. Crim. App. 1982). Alabama does not allow an expert to use medical, psychological or hospital reports that are not admissible at trial. Id.

(171.) SLOVENKO, supra note 44, at 236.

(172.) Insanity Def. Work Group, supra note 145, at 122.

(173.) Id.

(174.) Clark v. Arizona, 126 S. Ct. 2709, 2724-25 (2006).

(175.) Id. at 2724.

(176.) Id.

(177.) Id.

(178.) Id.

(179.) Id. at 2725.

(180.) Id.

(181.) Id.

(182.) Id.

Kandice Pickett, I dedicate this Note to my mother, Jackie D. Pickett, for all of her support and encouragement, and my father, the late Eddie Ross Pickett, for giving me the courage and strength to make all my dreams come true.
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