A Mental Health Expert Potentially Violates a Criminal Defendant's Constitutional Rights by Referring during Testimony to the Defendant's Refusal to Speak during an Evaluation; Ruling Not Disturbed by Supreme Court

Article excerpt

If a mental health evaluation of a criminal defendant is ordered, the mental health professional conducting the evaluation will generally seek to meet with the defendant. One frequent goal of this meeting is to hear first-hand the defendant's account of matters germane to the evaluation. But it also provides the evaluator with an opportunity to observe the defendant's demeanor and how he interacts with others.

If the defendant is being interviewed by law enforcement officials in conjunction with a custodial interrogation, the defendant has a well-established Fifth Amendment right under Miranda v. Arizona (1966) and its progeny to remain silent, with the prosecution precluded at trial from commenting on or suggesting inferences that might be drawn from this choice to remain silent. Some defendants will similarly refuse to interact with the mental health professional doing an evaluation. A question has arisen whether the professional can take this refusal into account in formulating his or his professional opinion or is barred from doing so by constitutional protections similar to those recognized in Miranda.

In a case out of Texas, the defendant was convicted of capital murder and received a death sentence. Prior to trial, the defendant pleaded not guilty by reason of insanity and his counsel asserted that the defendant was incompetent to stand trial. For both issues, counsel for the defendant produced the testimony of a psychiatric expert. Counsel also submitted the defendant's medical records, which showed that the State had attempted to civilly commit the defendant to a mental health facility a week before the murder. The psychiatric expert testified that he had difficulty getting the defendant to cooperate during his attempts to interview the defendant and that much of his opinion was based on his observation of the defendant on several occasions and the defendant's medical records. Ultimately this expert concluded that the defendant's symptoms of mental illness were genuine, that he was incompetent to stand trial, and that he was insane at the time of the offense.

In rebuttal, the prosecution offered the expert testimony of Dr. James Grigson, a well-known forensic psychiatrist who acknowledged on cross-examination that he had testified so often and effectively for the State in death penalty cases that he was called "Dr. Death" by the media. He also conceded that he had spent little more than three minutes speaking to the defendant and that his predictions of future dangerousness were looked upon with disfavor by the American Psychiatric Association. Dr. Grigson testified that the defendant refused to talk to him after he advised the defendant of his right to refuse the examination. …


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