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When is a Criminal Responsibility Evaluation a Danger to the Defense?

Expert Psychological Evaluations - Forensic Psychology

Criminal responsibility, referred to as the “insanity defense” in many jurisdictions, is a defense intended to divert mentally ill defendants from the criminal justice system to the mental health system. Individuals who are found by the court to not be criminally responsible for their actions at the time of the offense(s) are typically sent to a state hospital or other mental health facility for treatment and supervision rather than incarceration in a prison. Typically, an evaluation of criminal responsibility is requested by the defense. In many cases, the defense requests that the court order an evaluation of criminal responsibility to be completed by a state-employed psychologist or psychiatrist. These psychologists or psychiatrists often work at state hospitals, jails, or county agencies or contract with one of these institutions. Given that the goal is for the defendant to avoid prison time, how can a criminal responsibility evaluation endanger or harm the defense/defendant? There are three primary ways.

  1. Account of the Offense(s): In order to evaluate a defendant’s mental state at the time of the offense(s), the evaluator will request that the defendant discuss details of the events, their behavior, and their mental state (e.g., thoughts, motivations, planning, emotion, etc.). Among other things, the defendant will provide two things, an admission of guilt and details related to what occurred at the time of the offense(s). If the defense requests this evaluation even though there was no mental disease or defect present and/or if the defendant was intoxicated, in the vast majority of jurisdictions, this will mean the defendant is ineligible for this defense. However, if the defense attorney has requested it anyway, despite the lack of eligibility and has not consulted with their client in advance, the defendant will often assume the evaluation is in their best interest, and they will participate. Ideally, the evaluator will provide enough information to the defendant such that they will understand the ramifications and consequences of the information they provide during this evaluation. However, this will not always occur. If the defendant then participates, providing a detailed account of the offense(s) despite being ineligible for an insanity defense, they may be essentially providing a confession and nothing more. If they have not admitted guilt previously, this may be their first admission which the evaluator will then put into writing and submit to the defense, prosecution, and court. If the defendant then attempts to plead not guilty or change their story after consulting with their counsel, the prosecution may subpoena the evaluator to testify about the defendant’s account of the offenses at trial. If the defendant attempts to testify on their own behalf, the evaluator’s testimony may be used to impeach the defendant. If the prosecution had been considering a plea bargain, an admission by the defendant during the evaluation may persuade the prosecution to instead take the case to trial or offer a less advantageous bargain. In summary, an evaluation which (due to ineligibility) was unlikely to confer a benefit or advantage to the defense may instead be utilized by the prosecution.

  2. Delay in Legal Proceedings: An order for a mental health evaluation such as a sanity/criminal responsibility evaluation will typically result in a halt to all legal proceedings. The defense will occasionally request an evaluation for this very purpose in order to obtain more time to prepare a defense or focus on other cases. However, in cases which hold a light sentence, a defendant who cannot afford or obtain bond (often because they are placed on a mental health hold pending the mental health evaluation) may spend months or even a year or two waiting in jail for such an evaluation. Though this is certainly not the way the legal system was designed or the way mental health evaluations are intended to work, state systems are imperfect. In some circumstances, defendants who are likely to receive a one year prison sentence (which may result in only a couple months of prison time before parole) if found guilty will spend over a year in jail while waiting for a mental health evaluation.

  3. Impact of Successful Insanity Defense: Depending on the jurisdiction, a variety of implications or consequences may follow a successful insanity defense. However, if the individual is determined to be mentally ill and dangerous, the individual can often be committed to a state hospital or other institution indefinitely (again depending on jurisdiction and continued dangerousness). This means an individual may commit a minor felony likely to only result in one or two years of prison time yet spend decades or the remainder of their life in an institution. In Arkansas, for example, an individual found not guilty by reason of mental disease or defect will spend five years in a conditional release program called the 911 program following their release from the hospital. Given that some defendants are looking at one to four years of probation if found guilty, this outcome is often considered less desirable by many defendants charged with Class D felonies. Despite the defendant’s preference for a guilty verdict, defense attorneys may still request a criminal responsibility evaluation.

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