Reversal Based On Error Excluding Expert Psychology Testimony Concerning Diminished Capacity Defense

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Ninth Circuit holds that the exclusion of expert psychological testimony on diminished capacity resulted in reversible error; while there are limits to this testimony, the trial court failed to consider the context of the proffered testimony requiring the conviction to be vacated and the case remanded for a new trial, in United States v. Christian, _ F.3d _ (9th Cir. April 17, 2014) (No. 12-10202)

FRE 702 provides for expert testimony that may "help the trier of fact to understand the evidence or to determine a fact in issue." Psychological expert testimony may be relevant in some cases. However, in criminal cases, caution must be exercised to avoid expert testimony which provides "an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense," which are reserved "for the trier of fact alone" under FRE 704(b). A recent Ninth Circuit case considered these issues.

Trial Court Proceedings: Exclusion Of Defense Expert Psychologist

Defendant Christian was prosecuted for transmitting threatening email communications through interstate commerce. Specifically, after the he was unable to obtain assistance from law enforcement in retrieving his repossessed car, he emailed the Chief of the North Las Vegas Police Department, the following messages:

“I will have to kill to retrieve my stolen and items [sic] if you do not retrieve them”; “I have assembled 100 armed angry men from Nevada who are ready for civil war if you stop me from protecting my civil rights”; “Get my fucking car or watch a terrorist car thief DIE!!!”; and “This communication is protected by the 1st Amendment and my undying dedication of ridding the earth of terrorist, [sic] who take away Constitutional Rights like YOU and the thief who has my car.”

Christian, _ F.3d at _.

The defendant emailed similar threats to the chief deputy city attorney and the chief prosecutor. After his unsuccessful demands for copies of two of his case files, he sent another email threatening to “get a mob together and start a civil war” to kill a state court judge or Davidson himself unless Davidson “g[o]t the Writ of Habeas Corpus out of the way.” Christian, _ F.3d at _.

In separate state proceedings, an expert psychologist had examined the defendant and concluded he was competent to stand trial. In federal court, the defendant offered the expert testimony concerning his diminished capacity “which allows a defendant to argue that he was incapable of forming the specific intent required by the charged offense – in his case, the specific intent to threaten.” Christian, _ F.3d at _ (citing United States v. Twine, 853 F.2d 676, 678–80 (9th Cir. 1988) (explaining defense)). The trial court was disinclined to allow the expert testimony based on the competency examination but allowed defense counsel to consult with the psychologist. Defense counsel reported back that “the evaluations for competency and for diminished capacity were ‘pretty much one and the same.’” The trial court noted that this position “was incorrect because different legal standards govern competency, which requires a defendant to have ‘sufficient present ability to consult with his lawyer’ and ‘a factual understanding of the proceedings before him,’ and diminished capacity, which concerns ‘whether the defendant has the ability to attain the culpable state of mind which defines the crime.’” Christian, _ F.3d at _.

The jury convicted the defendant. On appeal, he challenged the exclusion of his expert testimony as part of his diminished capacity defense.

Ninth Circuit Reversal

The Ninth Circuit found that the exclusion of the expert was error requiring the conviction to be vacated and the case remanded for a new trial. In particular, the circuit found error in the trial court’s exclusion of the defense:

expert solely because he examined [defendant] Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert’s testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails. Although the record does not allow us to determine whether the expert’s testimony should have been admitted, the court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation he had conducted.

Christian, _ F.3d at _.

The focus of the trial court should not have been on the type of examination and opinions but on whether the proffered testimony would assist the jury. As the circuit explained:

the correct legal standard requires the court to determine the relevance of the psychological evaluation the expert conducted and the medical diagnoses he made, not his ultimate legal conclusion regarding the defendant’s mental state. The district court overlooked this distinction when it asserted that [defense expert] Dr. Colosimo was wrong to say he would have used the same methods to evaluate Christian for diminished capacity as he had for competency. Dr. Colosimo had not opined that the legal standards for diminished capacity and competency were the same, but that, as a doctor, he would have conducted the same evaluation and gathered the same psychological information. That Dr. Colosimo initially used the results of the evaluation to formulate an opinion about competency does not mean he could not have used the same results to formulate an opinion about diminished capacity./

Christian, _ F.3d at _.

Noting Limits On Expert Testimony

The circuit did not hold that the entirety of the expert testimony would be admissible. For example, the expert "could not have explicitly testified
that Christian lacked the capacity to form the specific intent to threaten." Christian, _ F.3d at _ (citing FRE 704(b) (“In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”); United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997) (en banc) (holding that Rule 704(b) prohibits an expert witness in a criminal case from “stat[ing] an opinion or draw[ing] an inference which would necessarily compel the conclusion” that the defendant lacked the requisite mental
state); United States v. Rahm, 993 F.2d 1405, 1411 n.3 (9th Cir. 1993) (noting “[i]t would make little sense to require a conclusive opinion in determining admissibility, and then absolutely to forbid expression of the opinion in testimony”)).

On this issue, the circuit dismissed

the government’s argument that the rule would have prohibited him from testifying at all. The government’s argument rests entirely on the description of Dr. Colosimo’s proposed testimony in Christian’s brief as being that Christian “did not have the ability or capacity to understand that his subject emails would be perceived as a real or actual threat of bodily harm.” Although the government is correct that Rule 704(b) would have prohibited Dr. Colosimo from offering that precise opinion, the rule “allows expert testimony on a defendant’s mental state so long as the expert does not draw the ultimate inference or conclusion for the jury.” United States v. Finley, 301 F.3d 1000, 1015 (9th Cir. 2002); see also Morales, 108 F.3d at 1033 (holding that an expert may “give an opinion on a predicate matter from which a jury might infer the defendant’s required mens rea”). Testimony regarding Dr. Colosimo’s diagnoses and the results of the psychological evaluation Dr. Colosimo gave Christian should not run afoul of this restriction. See Finley, 301 F.3d at 1015 (holding that expert testimony regarding the defendant’s “atypical belief system” did not
violate Rule 704(b)’s prohibition because “[t]he jury was free to conclude that [the defendant] knew the notes were fraudulent, despite the rigidity
of his belief system”).

Christian, _ F.3d at _, n.2.

Some portions of the proffered expert testimony were relevant, including the diagnosis of the defendant "with psychosis, including probable
delusions, and borderline personality disorder. Testimony regarding the behavior Christian exhibited that led Dr. Colosimo to make these diagnoses and the likely effects of these conditions may well have been helpful to the jury in deciding whether Christian could form the requisite intent to threaten." Christian, _ F.3d at _. The error in excluding the testimony affected the ability of the defendant to present his defense and therefore the exclusion was not harmless. Finally, the circuit held that “the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, see Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. 2014) (en banc), also applies to the erroneous
exclusion of expert testimony from a criminal trial.” Christian, _ F.3d at _ (citation modified). In applying this rule, the circuit vacated the conviction and remanded the case for a new trial.

Conclusion

The Christian case highlights some interesting limits to the admission of psychological expert testimony concerning a diminished capacity defense. The circuit did not hold that all of the proffered testimony was admissible. Instead its blanket exclusion, without considering the context of the testimony, constituted reversible error. In general, the jury should be permitted to hear about the diagnosis and defendant's behavior to determine if the diminished capacity defense applied. However, the expert could not testify specifically about whether the defendant "did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense," which is barred under FRE 704(b).

For more on the Estate of Barabin case, see Reversal Based On "Abdication" Of Gatekeeping Role On Expert Testimony.

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