When a defendant presents expert testimony that he was not in the required mental-state to commit a capital offense because of methamphetamine use, does the State violate the defendant’s right against self-incrimination by presenting rebuttal testimony based on a court-ordered mental evaluation of the defendant?
After he shot and killed Sheriff Matthew Samuels, Scott Cheever argued that his habitual use of methamphetamines prevented him from forming the necessary mental intent to commit capital murder. The State initially filed its case in federal court after Kansas temporarily abolished the death penalty. In federal court Cheever presented the defense of voluntary intoxication, which is not recognized as a mental disease or defect defense in Kansas, and used expert testimony to support his defense. The federal court ordered Cheever to undergo a mental evaluation. Later, Kansas reinstated the death penalty and the State asked the federal court to send the case to state court. In state court, Kansas used the results of Cheever's mental evaluation to rebut his voluntary intoxication defense. Cheever argues that this evidence should not have been presented because he did not intend to waive his Fifth Amendment right against self-incrimination when he presented his mental status defense in state court. Kansas argues that by presenting mental health testimony, Cheever voluntarily opened the door to rebuttal testimony based on the court-ordered mental health exam. This case will address the role of state law in a defendant’s waiver of the federal constitutional right against self-incrimination. It will also impact prosecutors’ ability to rebut a defendant’s testimony in light of the Fifth Amendment. The issues in this case implicate questions of federalism and constitutional rights.
Questions as Framed for the Court by the Parties
- When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, does the State violate the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant?
- When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant?
On January 19, 2005, Scott D. Cheever shot and killed Greenwood County Sheriff Matthew Samuels near Hilltop, Kansas. Cheever and four others were cooking and using methamphetamine in the early morning before the police arrived at the home. Shorty before the police arrived, one of the homeowners, Belinda Cooper, received a call that the police were on their way to the house to look for Cheever. Because his car had a flat tire, Cheever and one of the other men in the house, Matt Denny, went upstairs to hide. Cheever had a .44 caliber revolver and a .22 caliber semi-automatic pistol with him.
Sheriff Samuels entered the home, asking for Cheever. When he saw a doorway leading to a stairwell, Samuels called up the stairs for Cheever. Cheever looked to Denny and said “[d]on’t move, don’t make a sound, just stay right where you are.” When Samuels went up the stairs, Cheever came out of the room where he was hiding and shot and killed Samuels. Cheever also shot at the other officers who entered to help Samuels get out of the house. Later, Cheever shot at the SWAT team that entered the house before they finally subdued him.
The case was originally brought in Kansas state court in Greenwood County. However, when the Kansas Supreme Court ruled in State v. Marsh, that the death penalty was unconstitutional, the state proceedings were dismissed. The case moved to federal district court where federal prosecutors began proceedings under the Federal Death Penalty Act.
Cheever argued that because of his methamphetamine use, he could not form the necessary mental-state to be charged with murder and attempted murder. He supported this voluntary intoxication defense with his own testimony and an expert witness, Dr. Roswell Lee Evans, Jr., a doctor of pharmacy specializing in psychiatric pharmacy. The federal court ordered Cheever to undergo a mental evaluation with Dr. Michael Weiner, a forensic psychologist.
The case went to a jury trial in September 2006, but a week into jury selection, Cheever’s defense attorney became unable to proceed and the case was dismissed. In the meantime, the United States Supreme Court had reinstated the Kansas death penalty in Kansas v. Marsh, so the case was re-filed in Kansas state court.
At trial, Cheever called Dr. Evans to testify about Cheever’s mental state at the time of the murder, and while he was using drugs. The State called Dr. Weiner as a rebuttal expert to testify about Cheever’s mental health based on the court-ordered evaluation. The jury found Cheever guilty of capital murder.
Cheever appealed and the Kansas Supreme Court reversed the conviction. The court concluded that Dr. Weiner should not have been allowed to testify about the court-ordered evaluation because Cheever’s voluntary intoxication defense was not evidence of a mental disease or defect under Kansas law. The court held that Dr. Weiner’s rebuttal testimony violated Cheever’s constitutional rights under the Fifth and Fourteenth Amendments.
Kansas argues that when a defendant presents testimony about his mental status, he waives his Fifth Amendment right against self-incrimination because the prosecution must be able to present rebuttal testimony to refute the defendant’s expert evaluation. Cheever counters that there is no such waiver since such a waiver must be made knowingly, intelligently, and voluntarily. Furthermore, Cheever argues that even if there is a waiver, it would be limited to evidence that directly refutes the defense’s expert testimony. This case implicates the constitutional rights of people on trial for capital murder, and questions of how to apply federal law to state court proceedings.
FEDERAL LAW IN STATE COURT
Kansas argues that this case is about federal law, not whether under state law, voluntary intoxication is a mental disease or defect requiring a court-ordered mental evaluation. Specifically, Kansas, various other States, and the United States argue that the fair and consistent application of the Fifth Amendment is a federal question to be determined by federal law. The United States contends that the right against self-incrimination should not depend on how states classify a mental defense and whether a court-ordered mental evaluation is required. Instead, the United States argues that a state should be able to present rebuttal evidence from a mental evaluation to the extent that the defense presents such evidence. In addition, the National District Attorneys Association (“NDAA”) argues that if the Court affirms the Kansas Supreme Court, a person convicted in Kansas will have greater Fifth Amendment protection upon asserting a mental status defense than a person convicted of the same crime in California or in federal court.
In support of Cheever, the National Association of Criminal Defense Lawyers (“NACDL”) argues that federal courts should respect state trial rules and procedures; in this case, Kansas’ rule allowing a defendant to present evidence of voluntary intoxication to negate the mental-state element of a crime but not requiring a court-ordered examination of the defendant. When a state has provided for such a defense, the NACDL argues, courts should require that the prosecution bear the burden of proving the mental state without reliance on the defendant’s own compelled testimony. Moreover, according to the NADCL, the prosecution retains ample opportunities to rebut the defendant’s defense, such as calling an expert witness.
FIFTH AMENDMENT WAIVERS
In support of Kansas, the Criminal Justice Legal Foundation (“CLJF”) and the United States assert that if a defendant chooses to present testimony from a mental health expert, the state must have a chance to present its own mental evaluation in rebuttal. CLJF and the United States argue that the purpose of the Fifth Amendment is to protect a defendant from being compelled to testify against himself, but that in a case where the defendant chooses to present mental health evidence, he waives his Fifth Amendment right. Furthermore, numerous States assert that because psychiatric evidence is subjective and technical, a jury must have a chance to hear experts from both sides to make a fair decision. Similarly, the United States argue that rebuttal testimony is an important feature of a just and fair criminal trial.
The Judge David L. Bazelon Center for Mental Health Law (“Bazelon Center”) points out that a defendant can only waive a constitutionally guaranteed right if he does so knowingly, intelligently, and voluntarily. According to the Bazelon Center, Cheever never understood that his decision to mount a voluntary-intoxication defense in federal court would result, via a “chain reaction,” in a waiver of his right against self-incrimination. Along the same lines, Cheever argues that a waiver cannot possibly be voluntary if the defendant is forced to waive the privilege in order to assert a defense. Moreover, the American Civil Liberties Union (“ACLU”) argues that it would be unjust for a defendant to have to choose between his Eighth Amendment right to present mitigating evidence at sentencing and his Fifth Amendment right against self-incrimination. Therefore, the ACLU contends that the Fifth Amendment waiver must be narrowly tailored to the defendant’s statements and the evidence presented by his expert.
The Supreme Court will decide whether a defendant waives his Fifth Amendment right against self-incrimination by presenting a defense of voluntary intoxication and using expert testimony in support of that defense. Kansas argues that Cheever waived his Fifth Amendment right by doing so, and that the State was therefore permitted to rebut Cheever's evidence with the results of his court-ordered mental evaluation. Cheever, on the other hand, argues that there was no waiver because he did not voluntarily submit to the mental evaluation in question and did not know that presenting the defense of voluntary intoxication would permit the State to use that evaluation against him.
THE ROLE OF STATE LAW
Both parties agree that whether there has been a waiver of Cheever’s Fifth Amendment right against self-incrimination is a question governed by federal law. The parties disagree as to whether—and to what extent—state law is relevant to this question.
Cheever argues that state law—here, the law of Kansas—is directly relevant to the question of waiver. Specifically, Cheever argues that he could not have made a knowing waiver of his right against self-incrimination because his decision to present a voluntary intoxication defense was informed by Kansas law. Cheever points out that, under Kansas law, the State cannot use the results of a compelled psychiatric examination when the defendant asserts a defense of voluntary intoxication, which is distinct from a defense of mental disease or defect. Accordingly, Cheever argues, he was not aware that in mounting his defense he might be agreeing to a mental examination and thus a waiver of his Fifth Amendment privileges.
Further, Cheever points to the Court’s decision in Buchanan v. Kentucky, which held that the prosecution may rebut a defendant’s presentation of psychiatric evidence with evidence from the reports of the examination that the defendant “requested.” The critical issue here, Cheever contends, is that he did not request a mental examination; rather, it was compelled under a federal rule of evidence with no application to state-court proceedings. Moreover, Cheever points out that a determination of whether there has been a waiver is made at the time of trial. Because the trial was held in Kansas state court, Cheever argues that there was no waiver since he could not have known that his voluntary intoxication defense would result in the admission of the mental examination that was ordered by the federal court.
Kansas, on the other hand, contends that its classification of Cheever’s defense as one of “voluntary intoxication,” rather than mental disease or defect, has no bearing on whether Cheever waived his federal constitutional right against self-incrimination. In Kansas’ view, the distinction made by the Kansas Supreme Court between the defenses of “mental disease or defect” and “voluntary intoxication,” is entirely irrelevant to the Fifth Amendment waiver analysis. Moreover, Kansas argues that regardless of the label the state may place on Cheever’s defense, the heart of his defense was that he did not possess the requisite mental state to commit capital murder. Kansas asserts that whether a state court would have ordered a psychiatric evaluation of Cheever if the case had proceeded entirely under Kansas law is irrelevant because the federal court-ordered evaluation was lawful. In this view, it is the federal court result, not the state court decision, that is “constitutionally correct,” because the defense’s offer of testimony in support of a mental-state defense is inconsistent with the invocation of the Fifth Amendment privilege.
VOLUNTARINESS OF THE PSYCHIATRIC EXAMINATION
Cheever argues that he did not waive his Fifth Amendment privileges because he did not “voluntarily” submit to the court-ordered mental evaluation that is at the center of this case. Cheever supports this contention by relying on Simmons v. United States, where the Supreme Court held that it was “intolerable” that a defendant should have to give up one constitutional right in order to exercise another. Cheever argues that he was faced with a similar choice between giving up his constitutional right to present a defense or his Fifth Amendment right against self-incrimination.
Kansas, however, argues that it was Cheever’s own trial tactic to put on a mental-state defense and that his counsel understood that the effect of doing so would be a court-ordered mental examination and eventual rebuttal by the State. Thus, according to Kansas, it was Cheever’s own course of conduct, rather than compulsion by the prosecution, that led to a waiver of the Fifth Amendment privilege.
Central to both parties’ arguments is their interpretation of Buchanan and whether it controls the result in this case. The parties’ interpretations ultimately turn on the word “request” as it is used in the Buchanan decision, which held that the prosecution may, at a minimum, use the results of a psychiatric examination the defendant requested.
Cheever argues that Buchanan stands for the proposition that there is no Fifth Amendment question raised when a defendant requests a mental evaluation. He further argues that the controlling test in this proceeding is not Buchanan, but the principle that a Fifth Amendment waiver is only valid if it is made voluntarily, knowingly, and intelligently.
By contrast, Kansas proposes that Buchanan controls the instant proceeding and stands for the proposition that, regardless of whether he requested it, a defendant waives the Fifth Amendment privilege with respect to a mental examination if he mounts a mental-status defense.
SCOPE OF PERMISSIBLE REBUTTAL TESTIMONY
As a procedural matter, Kansas argues that the issue of “scope” is not subsumed within the Question Presented and, moreover, that it is irrelevant for the disposition of this case because the Kansas Supreme Court did not rely on any such rationale in overturning Cheever’s conviction. Kansas therefore submits that if the rebuttal testimony exceeded the proper scope, then that issue should be addressed on remand to the Kansas Supreme Court.
Cheever, on the other hand, argues that the issue of scope is properly before the Court, since it is impossible to answer the question of whether his Fifth Amendment rights were violated without considering the scope of the rebuttal testimony. In Cheever’s view, the main issue cannot be resolved in the abstract, so the scope issue is, at least, a subsidiary issue that must be considered. Additionally, Cheever argues that the issue of scope was raised and preserved by the defense in the Kansas Supreme Court proceeding below.
Substantively, Cheever contends that while a limited rebuttal is appropriate when the defendant presents a voluntary intoxication defense, the prosecution far exceeded the limited scope of such rebuttal by allowing its expert witness to (1) testify about an alleged personality disorder from which Cheever suffered, which issue was not addressed by Cheever’s witness; (2) speak about Cheever’s fascination with outlaws, which was improper character testimony; and (3) present his evidence in first-person narrative. Accordingly, Cheever urges the Court to hold that the prosecution may introduce expert evidence based on a compelled psychiatric examination only insofar as it is necessary to provide a reasonable opportunity to rebut the specific defense raised by the defendant.
In response, Kansas submits that (1) its expert witness only testified that a personality disorder may be one explanation for Cheever’s behavior and did not reach any conclusion or diagnosis that Cheever suffered from antisocial personality disorder, which testimony was well within the scope of rebuttal; (2) Cheever himself testified about his fascination with outlaws, thus opening the door to this issue; and (3) that it did not force Cheever to testify through the mouthpiece of a state expert.
At Cheever’s murder trial in state court, the prosecutor used a federal court-ordered mental health exam to present rebuttal testimony. Cheever argues that he did not voluntarily waive his Fifth Amendment right and that he should not be forced to choose between mounting a defense and asserting his privilege against self-incrimination. Kansas argues that by presenting evidence on mental health, Cheever opened the door to rebuttal based on the court-ordered mental health exam. This case will determine the role of state law in a Fifth Amendment waiver, the limits on prosecutors’ ability to rebut a defendant’s testimony, and the tactics defendants may use to defend themselves at trial.
Jeremy Byellin, Hot Docs: SCOTUS to Decide Whether Fifth Amendment Protects Against Testimony by Court-Ordered Psychiatrist, Thompson Reuters Legal Solutions Blog, Feb. 27, 2013.