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Mental Health Defenses in Criminal Cases: How do they work and how often are they employed?

As a criminal defense lawyer, I often get asked questions about cases in the news.  Since Making a Murderer was released and exploded into popular culture, I have been asked tons of questions about what I think of the case, especially my opinions on forensic science in the courtroom, corruption and ineptitude, false confessions, coercive questioning of juveniles without parental consent, and finally mental health defenses.  Sorry to disappoint but I am not going to discuss the Steven Avery case or Making a Murderer.  However, after having some lengthy conversations with friends and just having worked on a trio of cases where I was successful in raising a mental health defense, I wanted to share some of my thoughts on mental health defenses.

As a general matter, these defenses are not raised very often and work even less frequently.  I have represented thousands of people before, many of whom have serious mental illnesses or chemical dependency problems.  I have sought mental health opinions in about 50 cases, with about 10 of them with viable mental health defenses.  In some of those cases, we chose to waive the defense for one strategic reason or another.  That said, I raise these types of defenses more often than most attorneys in the State.  Conservatively, I estimate I have been successful raising these defenses in less than 0.3 percent of the cases I have been involved with.  Simply put, these defenses are not common.

Additionally, mental health defenses are extremely complicated.  First, psychology is an inexact science.  Unlike in the hard sciences where a person expects a high level of precision, psychology deals with the realities of human nature.  Because human behavior is incredibly complex, psychologists use much broader probabilities and estimates in forming their opinions.  As a result, there are often differences of expert opinions based on different interpretations of the facts or psychometric tests.  Second, by definition, the justice system is dealing with a defendant who has a severe mental illness or intellectual disability.  Since the system presumes a deterrent effect, rational understanding and knowing, intelligent, and voluntary choices, it does not work smoothly when the actors involved are not rational, do not understand the proceedings, and cannot make those kinds of well-reasoned choices.  Moreover, the governing law is about a clear as mud.  In my opinion (and experience), even seasoned prosecutors, defense attorneys, and judges routinely mess these cases up badly, which has resulted in a hodge-podge of inconsistent law.  As a result, these defenses are rarely used.  Even when they could be used, there are times where the defenses are waived for strategic reasons.  Sometimes, a “win” using these defenses results in a worse punishment for the client than if the defense was not raised at all.

In North Dakota, there are three types of mental health defenses: (1) competency; (2) criminal responsibility; and (3) a culpability mitigation defense, with competency and criminal responsibility defenses being raised most often. Each type of defense will be discussed below.

  1. Competency

Competency is a defense that focuses on the defendant’s mental limitations at the present time, not at the time of the alleged crime.  Competency is a fundamental and constitutional prerequisite to the government prosecuting a defendant.  Stated differently, if the person is not competent, the government cannot prosecute.  A recent high-profile example involving this defense was the James Holmes case.  Holmes is the former graduate student who walked into a movie theater in Colorado in 2012 and shot up the place, killing 12 people.  While in jail, his mental health deteriorated so severely that the prosecution was put on hold.  After lengthy treatment and a medication regimen, he eventually regained his competency.  He was then tried and convicted of murder.

In 1960, the United States Supreme Court decided the landmark case dealing with competency, Dusky v. United States.  In Dusky, the Supreme Court decided it was unconstitutional to permit an incompetent person to stand trial.  Because the defendant is not competent to make a knowing, voluntary, and intelligent decision about waiving the competency defense, the defendant cannot waive the defense.  To comply with that requirement, our criminal code now contains a statute addressing the Dusky holding.  Section 12.1-04-04 provides:

No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against the person or to assist in the person’s own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

This statute applies to two types of people: those who cannot understand the proceedings against them and those who cannot assist in their defense.  For instance, a person with a very low IQ due to a developmental disability may not understand the proceedings against them.  The person might not understand they are even in trouble, much less that their alleged conduct was wrong, or who the judge is or what the judge does, or who the attorneys are, or what role they play in the criminal justice system.  If a person cannot understand abstract concepts like “evidence” or “proof,” they cannot understand what is going on around them.  Likewise, a person who cannot understand or communicate with their lawyer cannot assist in their defense.  Under the Supreme Court’s rulings and this statute, these cases should not move forward.

Whenever the judge has reason to doubt a defendant’s competency, the judge can order the person to be evaluated by a psychologist or psychiatrist.  The evaluator then prepares a report outlining his or her opinions on whether the defendant is competent.  If the opinion is that the person is not competent, the evaluator then is required to render an opinion on whether the defendant will regain competency in the foreseeable future.  If the evaluator’s opinions are challenged, the Court can hold a competency hearing.  There, the judge hears the evidence about the defendant’s competency from experts and the attorneys.  The judge can also consider whether the defendant is competent based on the judge’s observations of the defendant’s behavior in court.  If the judge finds by a preponderance of the evidence that the person is not competent, the proceedings must be either suspended (in the case where the person will likely regain competency in the foreseeable future) or dismissed (in the case where the person is not likely to regain competency in the foreseeable future).

In either situation, the judge can refer the defendant into guardianship proceedings, civil commitment proceedings, or other appropriate treatment at a human service center or other treatment facility.  Some courts have treated the law allowing the judge to refer someone into these proceedings as the same as being able to order the defendant committed under these procedures.  This is one of those common mistakes made in these cases.  If that happens, the North Dakota Supreme Court requires the judge to make sure the defendant is given all of the rights guaranteed in our civil commitment statutes.

  1. Criminal Responsibility

Criminal responsibility defenses are related to but different than competency.  This is our equivalent to the insanity defense, although it is slightly broader than the traditional definition of insanity.  Criminal responsibility defenses focus on the defendant’s mental status at the time of the crime.  It is also an affirmative defense, which means the defendant needs to raise the defense and prove it up by a preponderance of the evidence.  Also, unlike a competency defense, criminal responsibility defenses can be waived if the defendant is competent at the time of trial and the defendant makes a knowing, voluntary, and intelligent waiver of the defense.

In order to claim a lack of criminal responsibility, the defense must provide the court and the prosecution with pretrial notice that the defense will be used at trial.  Before filing the notice, the defense typically has an expert opinion from a psychologist in hand saying the defendant was not criminally responsible at the time of the crime.  The defense is a bit different than competency in that with a competency defense, there is never a determination of guilt or innocence.  With this defense, the defendant is found “not guilty by reason of lack of criminal responsibility.”  That means the defendant committed the criminal act but cannot be found guilty or criminally punished due to the person’s mental condition or status at the time the crime was committed.

In North Dakota, a defendant is not criminally responsible if, as a result of the person’s mental disease or defect at the time of the criminal act, “the individual lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality.”  In layman’s terms, the defense works if the person is not able to understand that the conduct is harmful or understand the difference between right and wrong.  It also works if the defendant’s conduct happens because the person has lost touch with reality.  A famous example of this involved a man in the 1800s who decapitated another after mistaking his head for a pumpkin.  Clearly if that were true, the murderer could not understand that his conduct was wrong, and his reality was seriously distorted from reality.

When a person is found not guilty by lack of criminal responsibility, that verdict triggers a secondary evaluation and commitment process.  The judge orders another evaluation of the defendant to determine whether the person can be treated effectively and if the person is dangerous to society.  The Court holds a mental health dispositional hearing, essentially a commitment hearing, within 90 days of the verdict.  At this hearing, the defendant has the burden to show he is not dangerous and should not be committed to treatment.  If the defendant cannot prove he is not dangerous, the Court can commit the person to a treatment facility and require the person to accept generally accepted treatment for his mental illness.  This commitment can last for the maximum time the person could have spent in jail.  In other words, for a class C felony offense with a 5-year maximum penalty, a person can be committed to treatment for a maximum term of up to 5 years.  Of course, the defendant has the right to review the commitment terms once at least every year.

As I mentioned above, there are situations where I will waive this defense because the civil commitment following a criminal responsibility defense results in longer incarceration than if we had not raised the defense.  At these annual reviews, judges ask psychologists if the person remains dangerous.  Psychologists avoid directly answering the question because it is impossible to predict the future.  Judges then often rule that they are not psychologists and cannot predict the future.  The end result of this circular process is that the defendant often remains locked up in a facility like the North Dakota State Hospital for much longer than if they had pled guilty or went to trial without raising the criminal responsibility defense.

  1. Diminished Capacity/Culpability Defenses

The last type of mental health defense that can be raised is a diminished capacity or culpability defense.  This defense is related to criminal responsibility, but is not quite the same for an important reason.  With this kind of defense, the defendant is asserting that due to the defendant’s mental status, he is guilty of a lesser crime or he should receive a lesser penalty, not that he is not guilty.  For example, North Dakota law prohibits homicide.  Homicide includes three levels of crime depending on the defendant’s culpability.  Intentionally or knowingly killing another person is murder.  Recklessly killing someone is manslaughter.  Negligently killing someone is negligent homicide.  A diminished capacity defense is claiming the defendant’s conduct was not intentional or knowing but rather reckless or negligent.  If a defendant successfully argues diminished capacity, he can only be convicted of a lesser form of homicide.

In jurisdictions that have the death penalty, diminished capacity also plays an important role in the penalty phase.  Generally, the law does not allow the execution of those with diminished capacity.  Using the James Holmes case as an example again, Holmes eventually regained competency and had a trial where he claimed he lacked criminal responsibility.  The jury, after hearing testimony from several psychologists that Holmes was severely mentally ill but he was sane at the time he committed the crime, found Holmes guilty of murder and attempted murder, among other charges.  The prosecutor then sought the death penalty.  In death penalty cases, a jury then has to decide whether the defendant should be sentenced to death.  In that phase of the case, Holmes’ lawyers again argued his mental illness impacted him in such a way that the death penalty was not appropriate.  When the jury was not able to unanimously agree to sentence him to death, Holmes was sentenced to life imprisonment without parole.  In other words, Holmes’ diminished capacity defense worked.

To raise this defense in North Dakota, the defendant has to provide the Court and the prosecution with pretrial notice of the defense’s intention to use this defense.  Like the others, a defendant must typically have an expert opinion from a psychologist or psychiatrist.  Then, evidence can be presented during the course of trial relating to the defendant’s culpability.  If the defendant is convicted, he can also present psychological evidence to the judge in an effort to mitigate the punishment.  While this may be insufficient to establish a defense to the charges, it certainly helps the judge understand why certain conduct may have occurred and, if properly treated, will be less likely to occur in the future.

Having gone into far too much detail than I should have, if you or anyone you know is charged with a crime where a mental health defense may be applicable, contact Nick Thornton at the Fremstad Firm at or (701) 478-7620.