Supreme Court Watch: Unanimous Supreme Court Decides Fifth Amendment Rebuttal Issue In Kansas v. Cheever

Yesterday, the Supreme Court held 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" without violating the defendant's Fifth Amendment rights, in Kansas v. Cheever, _ U.S. _, 134 S.Ct. 596(2013) (No. 12-609)

The Court addressed the issue "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." Justice Sonia Sotomayor authored the Court's opinion, which was as well as quite circumscribed in scope. The case touched on a number of issues, which will obviously have to wait to another case for resolution.

Case Background

Law enforcement officials went to arrest defendant Cheever on an outstanding warrant. Cheever had been cooking and smoking methamphetamine at a residence. When a sheriff entered the residence, Cheever shot and killed him. Originally, he was charged in state court with capital murder. However, after the Kansas Supreme Court separately held the state death penalty statute unconstitutional, the state case was dismissed. A federal capital case was filed under the Federal Death Penalty Act of 1994. The defendant noticed his intent “to introduce expert evidence relating to his intoxication by methamphetamine at the time of the events on January 19, 2005, which negated his ability to form specific intent, e.g., malice aforethought, premeditation and deliberation.” Cheever, 134 S.Ct. at 599. Under Fed. R. Crim. P. 12.2(b), the trial court ordered the defendant to submit to a psychiatric evaluation by a forensic psychiatrist “to assess how methamphetamine use had affected him when he shot [sheriff] Samuels.” During the trial, the case was unexpectedly dismissed without prejudice after the defense attorney was unable to proceed.

After the Supreme Court upheld the Kansas death penalty statute in Kansas v. Marsh, 548 U. S. 163, 167 (2006), a new case was filed against the defendant in state court. In the state trial, the defendant claimed a lack of premeditation based on his voluntary-intoxication at the time of the killing. He presented the expert testimony of a specialist in psychiatric pharmacy who testified that the defendant’s “long-term methamphetamine use had damaged his brain.” Cheever, 134 S.Ct. at 599 (footnote omitted). The state requested rebuttal testimony from the expert who evaluated the defendant in federal court.

The defendant sought to exclude the rebuttal expert testimony claiming that his evaluation was involuntary and would violate his Fifth Amendment right against self-incrimination. The state trial court admitted the expert testimony based in part on the fact that the defense expert had relied on the federal expert. The expert was permitted to testify to show “that [defendant] Cheever shot [sheriff] Samuels ‘because of his antisocial personality, not because his brain was impaired by methamphetamine.’” Cheever, 134 S.Ct. at 600. The jury convicted the defendant of the murder of the sheriff and attempted murder of other law enforcement officials. The jury then voted to impose a death sentence which was accepted by the state court. On appeal, the Kansas Supreme Court vacated the conviction and death sentence after concluding that the use of the expert testimony during rebuttal violated the defendant’s Fifth Amendment privilege. See State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012) (per curiam) (No. 99,988). The U.S. Supreme Court granted certiorari review. 568 U.S. _, 133 S.Ct. 1460, 185 L.Ed.2d 360 (Feb. 25, 2013) (No. 12-609).

Opinion Analysis: Permitting Rebuttal Evidence Under The Fifth Amendment

The unanimous Supreme Court ruling largely clarified and applied its prior precedent. The opinion explained that the Kansas Supreme Court "misconstrue[d] our precedents."

First, the Court “reaffirm[ed]” its decision in Buchanan v. Kentucky, 483 U.S. 402, 422 (1987), which permitted the government to introduce rebuttal evidence based on an examination of the defendant after the defendant “presents psychiatric evidence.” The Court rejected Cheever's assertion that Buchanan was distinguishable since the mental examination was jointly requested by the defendant and government. As the Court explained:

The rule of Buchanan, which we reaffirm today, is that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. Any other rule would undermine the adversarial process, allowing a defendant to provide the jury, through an expert operating as proxy, with a one-sided and potentially inaccurate view of his mental state at the time of the alleged crime.
Cheever, 134 S.Ct. at 601 (citation omitted).

Second, the opinion noted that the use of this evidence is offered to rebut evidence that the defendant elects to present. As the decision noted, the government “permissibly followed where the defense led.” The government does not introduce this evidence until after the defendant offers evidence on his or her mental state. As a matter of rebuttal evidence, the Court compared this to the "principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant 'has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.'” Cheever, 134 S.Ct. at 601 (citing Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)). The Court recognized that this principle vindicated "the function of courts of justice to ascertain the truth" and that this interest could appropriately prevail when balanced against "considerations determining the scope and limits of the privilege against self-incrimination.” Cheever, 134 S.Ct. at 601 (citing Brown v. United States, 356 U.S. 148, 156 (1958)). Applying these principles, the Court held:

When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him. See United States v. Byers, 740 F. 2d 1104, 1113 (CADC 1984) (en banc) (holding that the Government could present rebuttal expert testimony in part because it is perhaps “the most trustworthy means of attempting to meet” the burden of proof (internal quotation marks omitted)).
Cheever, 134 S.Ct. at 601 (citation omitted).

In vacating the judgment of the Kansas Supreme Court, the unanimous Court held "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." Cheever, 134 S.Ct. at 603.

Other Arguments Unpersuasive

The opinion also considered and rejected two arguments. In the first the Kansas Supreme Court concluded that the defendant had not "waived" his Fifth Amendment rights since the "voluntary intoxication" defense did not concern "mental disease or defect" under state law. The state court "misconstrue[d] our precedents" and took too narrow a view of the evidence:

In Buchanan [v. Kentucky, 483 U.S. 402 (1987)], we permitted rebuttal testimony where the defendant presented evidence of “the ‘mental status’ defense of extreme emotional disturbance.” And “mental status” is a broader term than “mental disease or defect,” at least to the extent that Kansas law excludes voluntary intoxication from that definition. Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate. Defendants need not assert a “mental disease or defect” in order to assert a defense based on “mental status.”
Cheever, 134 U.S. 602. Having presented evidence of a mental status defense, the Fifth Amendment did not stand in the way of the prosecution being able to make an effective rebuttal to the defendant's mental status evidence.

Second, the Court did not take up the defendant's claim that the rebuttal expert testimony exceeded Fifth Amendment limits. Rather than dispute the defense claim of voluntary intoxication, the court left this for the state to resolve. Whether the record discloses that the prosecution expert, "by describing the shooting from Cheever’s perspective" ended up "insinuating that he [Cheever] had a personality disorder" had not been addressed by the state appellate court in its effort to dispose of the matter on Fifth Amendment lack of waiver grounds. The prosecution expert's testimony that the defendant had an "alleged infatuation with criminals" could have exceeded the scope of the defendant's challenge to the effect of his "mental status." Cheever, 134 U.S. 603 (footnote omitted). The U.S. Supreme Court "decline[d] to address this issue" since the state court had not yet done so, including its application of any relevant state evidence rules. Cheever, 134 at 603 n.4.

Conclusion

The Cheever decision reconfirms and clarifies prior Fifth Amendment case law. The Court applies the "settled" rule of Buchanan which permits rebuttal testimony under the Fifth Amendment after the defendant “presents psychiatric evidence.” Whether this rebuttal evidence is permitted turns on the choices made by the defense. After the defendant decides to present expert testimony on his mental condition, the failure to permit the rebuttal evidence would undermine "the core truth-seeking function of the trial."

However, the Court noted and declined to consider the scope of permitted rebuttal evidence, which may be an issue to be considered in another case. Finally, the Court suggested that apart from the Fifth Amendment, either Congress or state legislative bodies could impose other limits on rebuttal evidence.

For more on Kansas v. Cheever, see Oral Argument Preview and Oral Argument Summary.

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Federal Rules of Evidence
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