Lay Testimony to Support an Insanity Defense Permitted Only When Accompanied by Expert Testimony; Testimony by Licensed Clinical Social Worker Excluded

Developments in Mental Health Law, January 2006 | Go to article overview

Lay Testimony to Support an Insanity Defense Permitted Only When Accompanied by Expert Testimony; Testimony by Licensed Clinical Social Worker Excluded


The challenge faced by the defendant at trial was that the court-appointed evaluator had determined that, although the defendant experienced psychotic symptoms (including hearing voices that he believed to be from God) at the time of the offense, the defendant's cocaine use had initiated and exacerbated these symptoms and thus the defendant was not legally insane at the time of the crime. In response, the defendant sought to introduce the testimony of a licensed clinical social worker who worked at the jail where the defendant was held and who saw the defendant two weeks after the offense and ten times over the next six months. Because the symptoms continued during incarceration when the defendant had no access to illicit drugs, the social worker was prepared to testify that the psychotic symptoms were unrelated to drug use.

The defense also wanted to introduce the testimony of the defendant's mother and a former roommate to establish that he began hearing voices before he became a heavy user of cocaine. Although the defense conceded that in Virginia (1) lay witnesses are not allowed to provide opinion testimony and can only recite observed behavior and (2) clinical social workers have not been authorized to provide expert testimony on the insanity defense, it maintained that the social worker was more than a lay witness and in any case should be allowed to provide testimony that would undercut the court-appointed expert's factual basis for determining the defendant was sane at the time of the offense.

The Virginia Court of Appeals, sitting en banc, acknowledged that Virginia allows lay testimony to support an insanity defense. …

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