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CRIMINAL PROCEDURE - NOTICE - PSYCHIATRIC EVIDENCE - DISCRETION - INSANITY DEFENSE - EXPERT TESTIMONY

A criminal defendant must indicate with specificity the type of psychiatric defense he or she intends to pursue, including which psychiatric experts will be testifying on his or her behalf, in order to comply with the notice provisions of N.Y. Crim. Proc. § 250.10. A judge has the discretion to refuse expert psychiatric testimony where a defendant did not provide adequate notice.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

The Court of Appeals considered two cases. In the case of People v. Pitts, Defendant was indicted for assault in the second degree, and in response the defense served the prosecution with the following notice: "Please take notice that pursuant to N.Y. Crim. Proc. § 250.10(2), the defendant intends to present psychiatric evidence on his behalf in the captioned matter." The prosecutor requested on three separate occasions that the defense identify the type of psychiatric evidence and defense on which they would rely. The defendant, however, refused to elaborate. The issue of psychiatric evidence arose during jury selection, and the trial court ruled that the defense would be permitted to present such evidence only in support of an insanity affirmative defense. The trial court ruled that the defense could not present evidence of diminished capacity, since they had not provided proper notice of their intent to assert that defense. The trial ended in a hung jury. At the scheduling conference for the retrial, the court reminded Defendant to identify the nature of the psychiatric defense to the prosecutor and the court, in order to avoid notice problems pursuant to N.Y. Crim. Proc. § 250.10. In response the defense wrote to the prosecution, stating that they intended to call Dr. Oscar Lopez, who would testify at trial regarding his diagnosis of Defendant. Prior to jury selection, the defense revealed for the first time that they intended to pursue insanity as an affirmative defense and to present further psychiatric evidence that Defendant could not form the assaultive intent required for conviction. The court permitted the insanity defense, but precluded the other defense based on the untimeliness of Defendant's notice. Defendant was convicted of assault in the second degree and the Appellate Division affirmed the conviction.

In People v. Almonor, Defendant was indicted for murder and related crimes. Defendant underwent testing, was found to be delusional and psychotic, and was therefore declared incompetent to stand trial. Two years later, when Defendant was found competent to stand trial, he served notice of his intent to present psychiatric evidence in support of an insanity affirmative defense. Defendant furnished the prosecution with the report of their expert, Dr. Brodsky, as well as test reports from the first competency hearing. When the trial court requested names of the experts both sides intended to call, the defense named only Dr. Brodsky. Defendant's attorney reiterated his intention to call only one expert, both during voir dire, and at the presentation of his opening statement. After Dr. Brodsky completed his testimony, however, Defendant stated for the first time his intention to call other expert witnesses not previously named. Although Defendant stated the witnesses would not express opinions as to Defendant's state of mind at the time of the crime, the court precluded these witnesses. Defendant was found guilty of manslaughter in the first degree and assault in the first degree. The Appellate Division affirmed the judgement.

ISSUE & DISPOSITION

Issue(s)

Whether, upon providing notice of the intent to pursue a psychiatric defense pursuant to N.Y. Crim. Proc. § 250.10, a criminal defendant must state the type of defense he or she intends to pursue.

Whether the court has the discretion to preclude additional psychiatric expert witnesses at trial, if the defense had not previously indicated its intent to call such witnesses.

Disposition

Yes. The notice provisions of N.Y. Crim. Proc. § 250.10 require the defense to provide notice specifying the type of defense they intend to pursue.

Yes. Preclusion of expert psychiatric testimony is an evidentiary ruling, and as such is within the scope of the judge's discretion. Absent an abuse of discretion such decisions by a trial judge will not be disturbed.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

  • Commonwealth v. Chappee, 492 N.E.2d 719 (Mass. 1986).
  • Commonwealth v. Dranka, 702 N.E.2d 1192 at 1195 (Mass. App. Ct. 1998).
  • Commonwealth v. Durning, 548 N.E.2d 1242 at 1249 (Mass. 1990).
  • Commonwealth v. Guadalupe, 499 N.E.2d 314 (Mass. App. Ct. 1987).
  • Wagner v. State of Texas, 687 S.W.2d 303 (Tex. Crim. App. 1984).
  • Mass.R.Crim.P. 14(b)(2)(a).

COMMENTARY

State of the Law Before Almonor and Pitts

New York Criminal Procedure Law § 250.10 requires that criminal defendants must provide timely notice to the prosecution of their intention to introduce psychological evidence as part of their defense. See N.Y. Crim. Proc. § 250.10. If the defendant fails to give notice, § 250.10 authorizes the court to exclude the psychological evidence unless the defendant can show good cause why the evidence should be admitted. See N.Y. Crim. Proc. § 250.10(2). The Court of Appeals has held that the determination of whether good cause has been shown is a matter of discretion for the trial court. See People v. Berk, 88 N.Y.2d 257, 265-66 (N.Y. 1996).

The scope of § 250.10 as it applies to the nature of the defense asserted by the defendant has expanded over time. See Peter Preiser, Practice Commentaries, N.Y. Crim. Proc. § 250.10. An earlier version of § 250.10 applied only to psychological testimony offered in support of an insanity defense. In 1982, the New York Legislature expanded the scope of § 250.10 to include psychological evidence offered in connection with the affirmative defense of extreme emotional disturbance and "with any other defense." See N.Y. Crim. Proc. § 250.10(1)(b)-(c). The Court in Berk held that the notice requirement applied to any evidence offered to support an affirmative defense of extreme emotional disturbance. See Berk, 88 N.Y.2d at 265.

Until the Court's decision in Almonor, it was unclear to what extent the statute applied to psychological evidence offered in connection with defenses other than insanity and extreme emotional disturbance. On the one hand, the language applying § 250.10 to "any other defense" favored a broad interpretation. N.Y. Crim. Proc. § 250.10(1)(c). See also People v. Berk, 88 N.Y.2d at 263 ("[T]he plain language of [§ 250.10] requires that any evidence regarding a mental disease or defect offered in relation to the defense of extreme emotional disturbance or any other defense be preceded by timely notice to the People.") (emphasis added). On the other hand, considerations of fairness may require construing any ambiguities associated with this language in favor of the defendant. See Peter Preiser, Supplementary Practice Commentaries, N.Y. Crim. Proc. § 250.10 (McKinney's Supp. 1996) ("[I]t would seem unjust to preclude the defendant from introducing mental health evidence for failure to give notice by construing the ambiguity here to mean "defense" in its generic sense."). See also People v. Berk, 88 N.Y.2d at 266 ("Exclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense. . . .").

Effect of Almonor and Pitts on Current Law

The Court held that in order to give proper notice to the prosecution, the defense must reveal the specific category of psychiatric defense it intends to rely upon. The three categories are found in C.P.L. §§ 250.10(1)(a)-(c). In part this notice is important because of the "different psychiatric foundations and different mental states", Almonor, para. 27, present in the three categories. Further, and seemingly of greater importance to the Court, the significance of more specific notice lies in the prosecution's right to prepare fully for trial. Without proper notice, the prosecution cannot properly conduct its own examination of Defendant's mental status. In light of Defendant's failure to comply with N.Y. Crim. Proc. § 250.10, the Court stressed the trial court's discretion to preclude defendant's use of such witnesses.

The Court reinforced the broad discretion of the trial court in ruling on the preclusion of evidence. Such rulings should only be disturbed upon a finding of abuse of discretion by the trial court. The Court placed importance on the relevance of the evidence, the effect on the management of the trial and, again, the prosecution's ability to prepare for the trial.

Unanswered Questions

The Court of Appeals recognizes that the defendant may, at the outset of a case, not know which psychiatric defense it will put forth and suggests that amendment of a notice is the appropriate vehicle for changing strategies during a trial. The Court acknowledges that amendment is warranted in some cases, depending on various circumstances, and that the trial court has the discretion to accept or deny the amendment. In what circumstances, however, will a reviewing court find abuse of discretion in a trial court's decision to accept or reject different theories or defenses late in the case?

May a defendant introduce alternative psychiatric defenses at the outset of a trial without indicating to the prosecution which precise defense it intends to pursue?

Survey of the Law in Other Jurisdictions

People v. Almonor clarifies the New York statute regarding the proper notice of a defense based on psychological evidence and the admission of expert witness testimony supporting such a defense. Massachusetts and Texas law give the trial court more discretion than New York. The Appeals Court of Massachusetts held in Commonwealth v. Guadalupe that pretrial notice that the defendant will present an insanity defense was not an absolute condition for advancing that defense. 499 N.E.2d 314 (Mass. App. Ct. 1987). The decision parsed the language of the Massachusetts Rules of Criminal Procedure to give the trial court judge discretion to allow a defense of mental defect that was not advanced in a timely manner. See Mass.R.Crim.P. 14(b)(2)(a).

The Appeals Court of Massachusetts further addressed the discretion given the trial court judge in balancing the Commonwealth's and the defendant's interests when calling a witness that was not initially listed by the defendant in the pre-trial notice. See Commonwealth v. Dranka, 702 N.E.2d 1192, 1195 (Mass. App. Ct. 1998). The court in Dranka, citing Commonwealth v. Durning, confirmed that when ruling on the admissibility of an unnamed witness' testimony, the court had the power to consider (1) prevention of surprise; (2) evidence of bad faith in the violation of the conference report; (3) prejudice to the other party caused by the testimony; (4) the effectiveness of less severe sanctions; and (5) the materiality of the testimony to the outcome of the case. Dranka, 702 N.E. 2d at 1195; See also, Commonwealth v. Durning, 548 N.E.2d 1242, 1249 (Mass. 1990) (following Commonwealth v. Chappee, 492 N.E.2d 719 (Mass. 1986)).

In Texas, the Criminal Court of Appeals confirmed that the trial court had discretion in precluding a defense of insanity and a defense motion for a psychiatric examination when neither were filed in a timely fashion. See Wagner v. State of Texas, 687 S.W.2d 303 (Tex. Crim. App. 1984).

Prepared by:

  • Anne Billick, '01
  • Joseph Facciponti, '01
  • Michael Galligan, '01
  • Marilyn Kamuru, '00
  • Kathryn Kinkade, '01
  • Jennifer Weinfeld, '00