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December 11, 2013

Unanimous win for Kansas on Fifth Amendment issue in Cheever

The Supreme Court this morning handed down its first criminal law opinion in a case that was fully briefed and argued this Term.  This unanimous ruling in Kansas v. Cheever starts and ends this way:

The Fifth Amendment to the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .”  The question here is whether the Fifth Amendment prohibits the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication.  We hold that it does not....

We hold that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.

The judgment of the Kansas Supreme Court is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

December 11, 2013 at 10:20 AM | Permalink


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of course this just means that now all Defense Lawyers will have to make sure the only thing their clients tell any govt agent including doctors is "Kiss Off"

Posted by: rodsmith | Dec 11, 2013 11:44:04 PM

What Rod ignores is that if, after having filed a notice of intent to rely on a defense of mental disease or defect, a defendant refuses to participate in a court-ordered mental exam, the proper response of a rational judge would be to strike the defense or instruct the jury that it can consider that refusal as evidence that the defendant does not have a valid defense of mental disease or defect.

Neither discovery rules nor the Constitution are intended to be a tool for defendants to play games with a fair trial process.

Posted by: tmm | Dec 12, 2013 11:48:27 AM

The Court does a good job of puffing up Buchanan to make it seem like it clearly established the issue. However, they also do a good job of explaining why the Psychological Expert distinction is fair one for the adversarial system. They don't really address why an affirmative defense vs. fighting the prosecution's case distinction wouldn't work except to simply suggest that it wasn't suggested in Court precedent, which is fair enough (I would argue it's also not foreclosed by Court precedent, but I suppose that's besides the point).

The emphasis on adversarial fairness obscures, to a degree, the fact that the Fifth Amendment is deliberately unfair when it comes to the adversarial system. But that doesn't mean this ruling dramatically weakens the Fifth Amendment. If the Court had ruled that any psychological defense (even without experts) waived the Fifth Amendment when it came to an examination, that would be very different. The statement for remand about proper scope (practically inviting the state court to rule that this expert did exceed the proper scope) was an important caveat. I am a bit surprised that the opinion was unanimous, but I wonder if Justice Sotomayor wanted to control it to make sure it wasn't broader than it could have been.

On a side note, I finally got around to reading the book Anatomy of a Murder a couple of months ago. In the book, the drunken legal genius co-counsel Parnell argued that the state couldn't force a defendant to be examined because it would violate his right to self-incrimination. Obviously, it's not a legal precedent, but it does suggest that the issue was considered and debated all the way back in 1958.

However, it also plainly indicates that the court rules in Michigan, at least, accepted that, if you put on expert testimony, the Prosecution had a right to examine and rebut that testimony. Interestingly, Michigan made the fact that the defendant was of sound mind an element of proof, requiring insanity to be rebutted beyond a reasonable doubt. That also fits snugly with this opinion since Voluntary Intoxication is not an affirmative defense at all, but simply an effort to challenge the prosecution's mens rea evidence. So, at a minimum, Michigan at the time didn't find the distinction that the defense in this case pushed for.

Posted by: Erik M | Dec 12, 2013 2:29:43 PM

Erik M --

"I am a bit surprised that the opinion was unanimous, but I wonder if Justice Sotomayor wanted to control it to make sure it wasn't broader than it could have been."

She never "controlled" it. Being in the majority, CJ Roberts could have assigned it to any of his colleagues.

Posted by: Bill Otis | Dec 12, 2013 3:47:25 PM

However, getting a unanimous opinion has virtue even if it would require assigning the opinion to someone who would craft a narrower opinion. If Justice Scalia or Justice Alito had written it, it might have provoked a concurrence or something else that could be avoided by having Justice Sotomayor take the case. I'm not saying that this necessarily happened in this case, but the right to assign the opinion and the decision for who to assign the opinion are two very different things. Look at the behind the scenes wrangling in Curtis Publishing v. Butts for a clear example of this.

Posted by: Erik M | Dec 12, 2013 4:20:35 PM

Once an opinion is assigned, retaining full control requires writing an opinion that does not open the way up to concurring opinions that can result in only part of it being the opinion of the court. As noted, Roberts might also have assigned it to her with the assurance she would write it a certain way. And/or even if it was remained fully an opinion of the court, a unanimous one can have more force.

Posted by: Joe | Dec 12, 2013 8:17:29 PM

I haven't ignored it tmn! I just think that under our real constitution it's illegal.

first last time I looked under that original document the burden of proof is on the state PERIOD!. there were no exceptions. So in a case like this where he says he's nuts. it's the state's job to prove he isn't!

plus that prohibition to not testify against yourself kicks in. If they are making him go to their doctor they can't then use any of that info against him. That would be a text book definition of testifying against yourself. But in this case it's even worse since it's just the doc's opinion. Hell opinions are like assholes everyone has one and most stink!

just like you will probably think about my opinion here! LOL

Posted by: rodsmith | Dec 14, 2013 11:17:26 AM

Joe and Erik --

This is a relatively small potatoes issue, as SCOTUS cases go. Having a unanimous opinion is unimportant (unlike, for example, Brown v. Board). A merely lopsided opinion will do just fine.

What that means is that Sotomayor did not control and would not have controlled the opinion or anything important about the case even if she wrote a concurrence. For precedential purposes, concurring opinions, where you have seven or eight Justices in the majority, are pretty much a waste of time.

Posted by: Bill Otis | Dec 14, 2013 11:52:15 AM

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