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Argument preview: Court to consider Fifth Amendment and expert testimony in capital case

The Fifth Amendment to the Constitution provides that no one in a criminal case can “be compelled… to be a witness against himself.”  In the case of death penalty defendant Scott Cheever, that means that the state obviously cannot require him to testify in his capital murder trial.  But what if Cheever’s defense includes the argument that the murder could not have been premeditated because he was intoxicated at the time of the murder?  Can the state rebut that defense by introducing testimony from the psychiatrist who conducted a court-ordered examination of Cheever?  That is the question before the Court tomorrow in Kansas v. Cheever.

In 2005, after injecting himself with methamphetamines, Scott Cheever shot and killed a local sheriff who was trying to arrest him on an outstanding warrant.  At that point, Kansas law did not permit the state to seek the death penalty in his case.  So he was indicted on federal charges instead.  Under the rules governing federal criminal proceedings, a defendant who wants to introduce expert testimony “relating to a mental disease or defect or any other mental condition” relating to guilt or capital punishment must provide the court with notice.  When Cheever informed the federal trial court that he planned to introduce expert testimony to demonstrate that, because of his drug use, he could not have formed the intent to commit murder, the court ordered Cheever to undergo a psychiatric examination.

Cheever’s case went to trial, but it was stymied when his attorney was unable to proceed.  Coincidentally, the death penalty became available in Kansas.  The federal charges against Cheever were thus dismissed, and Cheever was charged in state court with (among other things) capital murder.  Cheever testified at his new trial.  He admitted that he had killed the sheriff, but he attributed the murder to his use of methamphetamines; he bolstered that assertion with testimony from a psychiatrist, who told the jurors that both Cheever’s long-term use of methamphetamines and his use of the drugs shortly before the murder had “affect[ed] his ability to plan, to premeditate this crime.”

To rebut Cheever’s defense, the state sought to present testimony from the psychiatrist who had examined him during his federal proceedings.  That drew an objection from Cheever, who countered that under Kansas law a court-ordered psychiatric examination is permissible only when the defense is based on a “mental disease or defect” – which his was not.  However, the court allowed the psychiatrist to take the stand, where he testified that, on the day of the murder, Cheever could form an intent to commit murder. Cheever was convicted of capital murder and sentenced to death.

Cheever appealed his conviction and sentence to the Kansas Supreme Court, which reversed.  The court recognized that a defendant may “waive” his privilege against self-incrimination by submitting testimony himself.  But the court concluded that, although Kansas law permits a state court to require the defendant to participate in a court-ordered psychiatric exam if the defendant contends that “a mental disease or defect” precluded him from having an intent to commit murder, here Cheever was merely asserting that he had a “temporary mental incapacity due to voluntary intoxication.”  For that reason, the court ruled, Cheever could not be said to have “waived” his privilege against self-incrimination, because he could not have been compelled to participate in the examination in the first place.  Thus, the lower court concluded, the use of the psychiatrist’s testimony about Cheever’s examination violated the Constitution.

The state then filed a petition for certiorari, which the Court granted on February 25, 2013.

The state’s attack on the lower court’s decision rests first on a trio of U.S. Supreme Court cases that, in its view, lead to the conclusion that Cheever waived his Fifth Amendment privilege when he relied on a mental-state defense:  Estelle v. Smith, in which the Court held that the state could not use evidence from a court-ordered competency exam against a defendant who was not asserting a mental-state defense; Buchanan v. Kentucky, holding that Smith does not apply when “a defendant requests such an evaluation or presents psychiatric evidence”;  and Powell v. Texas, a per curiam decision which the state construes as “suggest[ing]” that a defendant waives his Fifth Amendment privilege when he asserts a mental-health defense because “it may be unfair to the state to permit a defendant to use psychiatric testimony without allowing the state a means to rebut that testimony.”  Cheever cannot, the state emphasized, “have his cake and eat it too, by asserting a mental-status defense and presenting evidence to support it but then expecting” that the state cannot introduce its own evidence to counter that defense.

Holding that Cheever waived his Fifth Amendment privilege would also, the state adds, be consistent with broader principles of the Fifth Amendment privilege against compelled self-incrimination “recogniz[ing] that a defendant can waive . . . [that] privilege by taking actions inconsistent with the invocation of the privilege.”  Those principles, the state continues, have their roots in the need to ensure that criminal proceedings are fair and reliable.  This is particularly true here, the state contends, when both Cheever’s expert and the psychiatrist who testified on behalf of the state “addressed the same central issues” and “opined on the same subjects.”

Nor, in the state’s view, is it important that the Kansas Supreme Court based its decision on state law.  Although as a matter of state law the state can provide more protection than the Fifth Amendment does, here the lower court’s conclusion that the use of the expert testimony against Cheever violated his Fifth Amendment privilege wrongly relied on the distinction that Kansas law draws between the defenses of mental disease or defect, on the one hand, and voluntary intoxication on the other.  And in any event, the state emphasizes, voluntary intoxication is a mental-state defense for purposes of the Fifth Amendment.

The Court generally reverses in cases in which it grants states’ petitions for certiorari, so it is not altogether surprising that Cheever in his brief attempts to chart three different paths to victory that do not involve prevailing on the question presented by the state and decided by the state supreme court.  First, he argues that even if the state is correct that a defendant waives his Fifth Amendment privilege by having an expert testify about his mental state, the state can only use the court-ordered psychiatric exam to rebut the points addressed by the defendant’s own expert.  When, as in this case, the state’s expert goes beyond the issues that the defendant’s expert raised – for example, by “smuggl[ing] in” character evidence, when Cheever’s expert had testified only that the sheriff’s murder could not have been premeditated because Cheever was high on methamphetamines – the Fifth Amendment is still violated.

Second, as a general matter, defendants like Cheever who seek to defend themselves against a possible death penalty do not waive their Fifth Amendment privilege because they are not acting voluntarily, which is a prerequisite for there to be a waiver at all.  Cheever pushes back against the state’s reading of Buchanan v. Kentucky, emphasizing that “the crucial feature of Buchanan seems to be that the examination in question was jointly requested,” and therefore Buchanan was not “compelled” to incriminate himself.  An implied waiver is not necessary, Cheever contends, to allow the state to refute a defendant’s expert testimony, as the state has plenty of other options – for example, the defense expert’s report, interviewing witnesses, physical evidence, or police reports – to do that.  And, he warns, the state’s rule would discourage defendants from presenting a mental-health defense, even if it is their “best defense.”  Moreover, to the extent that the Court might nonetheless be inclined to find an implied waiver, he argues, it should do so only when the defendant has introduced expert testimony on his mental state to support an affirmative defense – no such waiver should exist when, as here, a defendant is merely addressing an element of the crime with which he has been charged.

Third and finally, although Cheever agrees with the state that Kansas law should not be used to determine the scope of his Fifth Amendment privilege, he alleges that it is still relevant to the question of whether he waived that privilege.  Because, in his view, state law would not allow the government to introduce evidence from the court-ordered psychiatric exam when he was only asserting a defense based on his voluntary intoxication, he could not have knowingly waived his Fifth Amendment privilege.

Because defendants facing the death penalty and other serious charges frequently rely on some sort of mental-health defense, one can easily imagine that at least five Justices of the Roberts Court would be reluctant to hold that, even if the state has evidence to rebut that defense in its possession by virtue of a court-ordered psychiatric exam, it categorically cannot use that evidence.  But one can also envision a scenario in which the Court does rule more narrowly, holding, for example, that the expert can testify but limiting the scope of the evidence that the state can introduce to mirror the scope of the defense.  In that scenario, the Court could well decide to kick the case back to the Kansas Supreme Court for further proceedings in light of the new rule – which, given that Cheever prevailed there on the first go-round, might not be a bad result for him.

Recommended Citation: Amy Howe, Argument preview: Court to consider Fifth Amendment and expert testimony in capital case, SCOTUSblog (Oct. 15, 2013, 11:01 AM),