When is Mental Illness Admissible?
Clients will often say that the people on the other side of a lawsuit are crazy. It's the sort of statement that I hear with such frequency that it scarcely registers – right up there with “the other side will definitely settle because they don't want the publicity” and “a jury will really like my case.” It's not my practice or my place to disagree with a client's impression of a person that they've met and I haven't. But I would be reluctant to suggest a strategy based upon a client’s subjective impression that the folks they're suing our crazy (or for that matter inclined to settle). It's just too easy and too natural to question the rationality of people that we disagree with.
But mental illness is real, and in litigation you will occasionally run into people who are, in one way or another, unwell. I'm not qualified to diagnose a pathology but there are categories of behavior that at least suggest that something is wrong. You'll encounter people with extreme shifts in mood, speech that is disordered and difficult to follow, or who exhibit radical changes in strategy, opinions, or choices that occur frequently and appear to come out of nowhere.
Even healthy people can exhibit versions of these behaviors, and you don't want to pathologize someone just because they are immature, foolish, or emotionally upset. But there are folks out there that are transparently unwell and if they're telling a bizarre lie about your client, the most honest thing you can say to the jury is that they aren't thinking straight.
But can you do that? When is evidence of mental illness admissible?
Under the common law, madness was utterly disqualifying for a witness. If a witness was insane, they were simply unable to testify. As Dean Wigmore wrote in his seminal treatise:
There was a period (and it has not long passed away) when the lunatic and the idiot, in the superstitious belief of the times, which regarded madness as an infliction sent from Heaven, were treated as incapable of being witnesses at all [1]
Indeed, Wigmore identifies an 1842 treatise that clings to this rule of total exclusion, classifying madness, idiocy, and intoxication as complete bars to testimony:
It makes no difference from which cause the defect of understanding may have arisen; nor whether it be temporary and curable, or permanent; whether the party be hopelessly an idiot or maniac, or only occasionally insane, as a lunatic; or be intoxicated; or whether the defect arises from mere immaturity of intellect, as in the case of children. While the deficiency of understanding exists, be the cause of what nature soever, the person is not admissible to be sworn as a witness. [2]
In Wigmore’s time this rule of total exclusion had given way to a “broad and rational principle - that the derangement, in order to disqualify, must be such as substantially negatives trustworthiness upon the subject of the testimony.” Wigmore focused on three aspects of mental incapacity that could give rise to exclusion: incapacity of observation, incapacity of recollection, and incapacity of communication. This last category was not about defective speech, but rather about “moral depravity” an illness that renders a person “lacking in the sense of moral responsibility as to be likely to tell his story with entire indifference as to its correspondence with the facts observed and recalled by him.”
Under the Federal Rules of Evidence, the notion of “competence” to testify has largely been abolished. Indeed, the original Advisory Committee notes to Fed. R. Evid. 601 state that “a witness wholly without capacity is difficult to imagine.” But while wholesale exclusion of witnesses because of perceived mental illness is no longer the rule, the courts are not blind to the possibility – as described by Wigmore – that mental illness may weigh negatively upon a witness's credibility.
The Court of Appeals for the Eleventh Circuit evaluated this issue in United States v. Lindstrom. There two defendants were convicted of mail fraud in connection with a physical therapy company. At trial, the defendants sought to cross examine the government's key witness concerning an extensive psychiatric history:
From public sources and from psychiatric records which the district court permitted defense counsel to review, the defense gathered material suggesting that in 1971 the witness was hospitalized following a serious suicide attempt; that in 1977 the witness, while she was running Bay Therapy, offered a patient of Bay Therapy $3,000 to murder the wife of the witness' alleged lover; that in 1978 she was involuntarily committed under Florida's Baker Act after taking an overdose of drugs; that in 1980 she was arrested and charged with aggravated assault for having allegedly fired a shotgun through the window of her purported lover's house; that following this incident she was briefly placed in a stockade until, at the urging of her psychiatrist, she was transferred to Hillsborough County Hospital where she was involuntarily committed under the Baker Act; that during this confinement she was diagnosed “schizophrenic reaction, chronic undifferentiated type” and described by the Chief of Psychology at Hillsborough as being “immature, egocentric, [and] manipulative,” having superficial relationships causing “marital problems and sexual conflicts in general” and seeing authority as something to be manipulated for self gratification and as an obstacle; that an unsigned chart entry noted that the patient had a “history of hallucinations” and was “suicidal—homicidal and delusional.” [3]
The trial court however, worried about the side showed that this would create and heavily limited questioning stating:
I think we should discuss, too, the extent of the cross-examination of this witness in regard to these activities. I am trying to think this through. I am not fully convinced it's a 608–B question, although I think it's akin to that. But any questions along this line probably would go further than what seems to be envisioned by 608–B, because you're testing the witness's credibility is what you're attempting to do, I would suppose. So, within reason, there are two or three properly framed questions I'm going to allow you to at least let this jury know about the fact that this witness has had some mental and emotional problems in the past. [4]
On review the Eleventh Circuit reversed, holding that merely informing the jury that the witness had experience “some mental or emotional problems was not sufficient” and drastically underplayed the witnesses psychiatric history. Quoting from the Fifth Circuit’s decision in United States v. Williams, 592, F.2d 1277 (1979) the court noted the highly probative nature of the severe mental illness at issue:
Certain forms of mental disorder have high probative value on the issue of credibility. Although the debate over the proper legal role of mental health professionals continues to rage, even those who would limit the availability of psychiatric evidence acknowledge that many types of “emotional or mental defect may materially affect the accuracy of testimony; a conservative list of such defects would have to include the psychoses, most or all of the neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction and psychopathic personality.” Mental illness may tend to produce bias in a witness' testimony. A psychotic's veracity may be impaired by lack of capacity to observe, correlate or recollect actual events. A paranoid person may interpret a reality skewed by suspicions, antipathies or fantasies. A schizophrenic may have difficulty distinguishing fact from fantasy and may have his memory distorted by delusions, hallucinations and paranoid thinking. A paranoid schizophrenic, though he may appear normal and his judgment on matters outside his delusional system may remain intact, may harbor delusions of grandeur or persecution that grossly distort his reactions to events. [5]
A rather different result was reached in United States v. Bari. There a group of defendants charged with attempting to escape a prison also sought to cross examine a cooperating witness based upon his mental health history. The witness was another prisoner who had been recruited for the escape attempt but had reported it to the guards. The defendants pointed out that the witness had been hospitalized for paranoid schizophrenia for a 15 month period. They also obtained testimony from a psychiatrist who examined the cooperator's medical records and concluded that he would not make a credible witness.
The trial court rejected this line of inquiry, finding it prejudicial and a waste of time period on review, the Second Circuit agreed, noting that the hospitalization was 10 years before the incident in question and thereby of limited relevance. The court also noted that there was no shortage of other material available to use in cross examination the cooperator, who had a somewhat rocky witness examination:
A lengthy digression into Tobias's mental health would likely have detracted from the far more cogent attacks mounted on Tobias's credibility. Tobias's cross-examination, at times withering in nature, spanned nearly four hundred pages of transcript. The jury learned: (i) that Tobias had been convicted of grand theft by deception, escape, operating a stolen vehicle, unarmed robbery, breaking and entering, parole violations, and auto theft; (ii) that he was unwilling to disclose his sources of income from 1979 to 1982 and felt compelled to “plead the fifth” when asked about them; (iii) that the government had rejected his cooperation in the boxing investigation because it concluded he was lying; (iv) that he had originally offered his cooperation in that investigation in return for support of his bid for probation in Ohio; and (v) that he had written the May 1 and June 29 letters to the government in the hope of trading testimony for parole in Ohio. [6]
These cases illustrate the balancing test that courts use when evaluating whether mental health evidence is admissible. As the 6th Circuit put it in Boggs v. Collins:
While mental illness can indeed be relevant to a witness's credibility, courts hold that the decision of whether or not to allow in evidence of a witness's mental illness falls within the broad discretion of trial courts as they balance possible prejudice versus probative value. Factors a court should consider in allowing in such evidence are the nature of the psychological problem, the temporal recency or remoteness of the condition, and whether the witness suffered from the condition at the time of the events to which she is to testify. [7]
Like Wigmore, modern courts focus on whether the illness renders the testimony itself unreliable, rather than addressing the more abstract question “is this witness insane?” As a result, should you need to impeach a witness on these grounds, it is essential to demonstrate that the mental illness at issue is one that breaks at least one of the steps between observation and communication, either by distorting the witness's view of the world or by damaging the witness's desire or ability to truthfully communicate what he or she has seen. This may require expert testimony and is highly likely to involve in limine motion practice given the sensitive and discretionary nature of the evidence necessary.
[1] John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law Volume II § 492 (1904).
[2] 1842, Professor Simon Greetleaf, Evidence, § 365.
[3] United States v. Lindstrom, 698 F.2d 1154, 1161–62 (11th Cir. 1983)
[4] United States v. Lindstrom, 698 F.2d 1154, 1162 (11th Cir. 1983)
[5] United States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir. 1983)
[6] United States v. Bari, 750 F.2d 1169, 1179 (2d Cir. 1984).
[7] Boggs v. Collins, 226 F.3d 728, 742 (6th Cir. 2000).
