Psychiatric Testimony and the Insanity Defense

His lawyer waived a jury trial and made the case to the judge both that Clark lacked the intent (mens rea, in legal jargon)--the specific intent to knowingly kill a policeman as required by the statute—and that he also was not guilty by reason of insanity. Although in Clark's case both arguments are clinically plausible, the judge found neither legally convincing under Arizona law.

Arizona law excludes expert psychiatric testimony that might demonstrate the defendant lacked mens rea, and the state has a very narrow insanity defense. The trial judge did listen to a great deal of expert testimony about the nature of Clark's mental disorder, but he concluded that under Arizona's law, psychiatric expertise could not be considered by a court in determining whether Clark intended to kill an alien rather than a policeman. The judge considered this psychiatric testimony in relation to the plea of not guilty by reason of insanity, and the experts on both sides agreed that the young man had been psychotic at the time of the killing. The judge nonetheless concluded that Clark, under the test of insanity set by the Arizona legislature "that the person did not know the criminal act was wrong," was not legally insane. He sentenced the young man to life in prison. It may be worth pointing out that judges in Arizona have to stand for reelection, that the insanity defense is not popular with voters, and that the dead policeman was a young husband and father who was killed in the line of duty.

The laws in Arizona demonstrate the antipathy toward the insanity defense and the biases against psychiatry that forensic psychiatrists were attributing to Justice Souter. The legislative history of Arizona's narrowing insanity defense and the restrictions against psychiatric testimony make that clear. But the question posed to Justice Souter and the Supreme Court was: Are Arizona's restrictions and limitations in these matters unconstitutional and should they be overturned? By a 5 to 4 majority, they decided the answer was no.

The APA's joint amicus brief opposing the Clark decision was based on the idea that Arizona's very narrow insanity defense might be constitutional, but taken together with its prohibition against relevant psychiatric testimony on intent, they make a double whammy that deprives the defendant of a constitutionally protected interest. Perhaps the most convincing part of the argument was that under the US Constitution, the prosecution has to prove beyond a reasonable doubt every element of a crime, including mens rea.

Therefore, if Arizona law excludes relevant psychiatric testimony that might indicate that Clark lacked the intent, then the state has improperly relieved the prosecution of its traditional constitutional burden in criminal trials. This is the line that Justice Kennedy followed in his dissent in Clark.¹ But this is a complicated issue, the type you might find on a law school examination, and there is still more complexity to it (which I am sparing the readers of this article). However, anyone who goes online to read the oral arguments before the Supreme Court and the comments and questions raised by the Justices might conclude that they were ill-prepared for any law school examination and that some confusion about the difficult questions reigned even in the minds of those participating in this exalted forum.⁹

Justice Souter did have a clear idea, and he tenaciously pursued it during the oral argument. His idea was that states could certainly prohibit "diminished capacity" defenses. In my opinion his certitude was ill-founded. Diminished capacity defenses became notorious in the second half of the 20th century. The idea of these defenses was championed by the preeminent forensic psychiatrist of that period, Bernard Diamond, who took advantage of changes in the admissibility of evidence. Diamond's expert opinions were allowed as evidence, and he would provide just the type of psychiatric testimony to California courts that the state of Arizona refused to consider. He would testify that the defendant, because of his or her mental condition, lacked the necessary intent for the crime specified by the statute. Most of his testimony involved psychoanalytical explanations that he presented convincingly and eloquently. He was quite successful in getting charges reduced and therefore lesser sentences for defendants who had committed horrific crimes.

Diamond may have had predecessors, but it seemed that he was the first to exploit a loophole in the law that gave forensic psychiatrists a role in determining criminal responsibility that was far more important than testimony limited to the insanity defense. Expert psychiatric testimony, if it was admissible as evidence, was relevant in ways that the criminal courts had never confronted before. Diamond's diminished capacity defenses fascinated law professors and judges who were intrigued by psychoanalysis at the time.