KENNEDY, J., DISSENTING
CLARK V. ARIZONA
548 U. S. ____ (2006)
SUPREME COURT OF THE UNITED STATES
NO. 05-5966
ERIC MICHAEL CLARK, PETITIONER
v.
ARIZONA
on writ of certiorari to the court of appeals of
arizona, division one
[June 29, 2006]
Justice Kennedy, with whom
Justice Stevens and Justice Ginsburg join, dissenting.
In my submission the Court is
incorrect in holding that Arizona may convict petitioner Eric Clark
of first-degree murder for the intentional or knowing killing of a
police officer when Clark was not permitted to introduce critical
and reliable evidence showing he did not have that intent or
knowledge. The Court is wrong, too, when it concludes the issue
cannot be reached because of an error by Clark’s counsel. Its
reasons and conclusions lead me to file this respectful
dissent.
Since I would reverse the judgment of the
Arizona Court of Appeals on this ground, and the Arizona courts
might well alter their interpretation of the State’s criminal
responsibility statute were my rationale to prevail, it is
unnecessary for me to address the argument that Arizona’s
definition of insanity violates due process.
I
Clark claims that the trial court
erred in refusing to consider evidence of his chronic paranoid
schizophrenia in deciding whether he possessed the knowledge or
intent required for first-degree murder. Seizing upon a theory
invented here by the Court itself, the Court narrows Clark’s claim
so he cannot raise the point everyone else thought was involved in
the case. The Court says the only issue before us is whether there
is a right to introduce mental-disease evidence or capacity
evidence, not a right to introduce observation evidence. See
ante, at 15–25. This restructured evidentiary universe,
with no convincing authority to support it, is unworkable on its
own terms. Even were that not so, however, the Court’s tripartite
structure is something not addressed by the state trial court, the
state appellate court, counsel on either side in those proceedings,
or the briefs the parties filed with us. The Court refuses to
consider the key part of Clark’s claim because his counsel did not
predict the Court’s own invention. It is unrealistic, and most
unfair, to hold that Clark’s counsel erred in failing to anticipate
so novel an approach. If the Court is to insist on its approach, at
a minimum the case should be remanded to determine whether Clark is
bound by his counsel’s purported waiver.
The Court’s error, of course, has
significance beyond this case. It adopts an evidentiary framework
that, in my view, will be unworkable in many cases. The Court
classifies Clark’s behavior and expressed beliefs as observation
evidence but insists that its description by experts must be
mental-disease evidence or capacity evidence. See
ante, at
16–18. These categories break down quickly when it is understood
how the testimony would apply to the question of intent and
knowledge at issue here. The most common type of schizophrenia, and
the one Clark suffered from, is paranoid schizophrenia. See P.
Berner et al., Diagnostic Criteria for Functional Psychoses 37
(2d ed. 1992). The existence of this functional psychosis is beyond
dispute, but that does not mean the lay witness understands it or
that a disputed issue of fact concerning its effect in a particular
instance is not something for the expert to address. Common
symptoms of the condition are delusions accompanied by
hallucinations, often of the auditory type, which can cause
disturbances of perception.
Ibid. Clark’s expert testified
that people with schizophrenia often play radios loudly to drown
out the voices in their heads. See App. 32. Clark’s attorney argued
to the trial court that this, rather than a desire to lure a
policeman to the scene, explained Clark’s behavior just before the
killing.
Id., at 294–295. The observation that
schizophrenics play radios loudly is a fact regarding behavior, but
it is only a relevant fact if Clark has schizophrenia.
Even if this evidence were, to use the Court’s
term, mental-disease evidence, because it relies on an expert
opinion, what would happen if the expert simply were to testify,
without mentioning schizophrenia, that people with Clark’s symptoms
often play the radio loudly? This seems to be factual evidence, as
the term is defined by the Court, yet it differs from
mental-disease evidence only in forcing the witness to pretend that
no one has yet come up with a way to classify the set of symptoms
being described. More generally, the opinion that Clark had
paranoid schizophrenia—an opinion shared by experts for both the
prosecution and defense—bears on efforts to determine, as a factual
matter, whether he knew he was killing a police officer. The
psychiatrist’s explanation of Clark’s condition was essential to
understanding how he processes sensory data and therefore to
deciding what information was in his mind at the time of the
shooting. Simply put, knowledge relies on cognition, and cognition
can be affected by schizophrenia. See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders
299 (4th ed. text rev. 2000) (“The characteristic symptoms of
Schizophrenia involve a range of cognitive and emotional
dysfunctions that include perception”);
ibid. (Symptoms
include delusions, which are “erroneous beliefs that usually
involve a misinterpretation of perceptions or experiences”). The
mental-disease evidence at trial was also intertwined with the
observation evidence because it lent needed credibility. Clark’s
parents and friends testified Clark thought the people in his town
were aliens trying to kill him. These claims might not be
believable without a psychiatrist confirming the story based on his
experience with people who have exhibited similar behaviors. It
makes little sense to divorce the observation evidence from the
explanation that makes it comprehensible.
Assuming the Court’s tripartite structure were
feasible, the Court is incorrect when it narrows Clark’s claim to
exclude any concern about observation evidence. In deciding Clark’s
counsel failed to raise this issue, the Court relies on a series of
perceived ambiguities regarding how the claim fits within the
Court’s own categories. See
ante, at 15–25. The Court
cites no precedent for construing these ambiguities against the
claimant and no prudential reason for ignoring the breadth of
Clark’s claim. It is particularly surprising that the Court does so
to the detriment of a criminal defendant asserting the fundamental
challenge that the trier of fact refused to consider critical
evidence showing he is innocent of the crime charged.
The alleged ambiguities are, in any event,
illusory. The evidence at trial addressed more than the question of
general incapacity or opinions regarding mental illness; it went
further, as it included so-called observation evidence relevant to
Clark’s mental state at the moment he shot the officer. There was
testimony, for example, that Clark thought the people in his town,
particularly government officials, were not human beings but aliens
who were trying to kill him. See App. 119–121, 131–132, 192–197,
249–256; Tr. of Bench Trial in No. CR–2000–538, pp. 110–112,
131–132, 136, 226–228 (Aug. 20, 2003);
id., at 24–25,
59–60 (Aug. 21, 2003). The Court recognizes the existence of this
essential observation evidence. See
ante, at 16–17.
The Court holds, nonetheless, that “we cannot
be sure” whether the trial court failed to consider this evidence.
Ante, at 24. It is true the trial court ruling was not
perfectly clear. Its language does strongly suggest, though, that
it did not consider any of this testimony in deciding whether Clark
had the knowledge or intent required for first-degree murder. After
recognizing that “much of the evidence that [the defense is] going
to be submitting, in fact all of it, as far as I know … that has to
do with the insanity could also arguably be made … as to form and
intent and his capacity for the intent,” the court concluded “we
will be focusing, as far as I’m concerned, strictly on the insanity
defense.” App. 9. In announcing its verdict, the trial court did
not mention any of the mental-illness evidence, observation or
otherwise, in deciding Clark’s guilt.
Id., at 331–335. The
most reasonable assumption, then, would seem to be that the trial
court did not consider it, and the Court does not hold otherwise.
See
ante, at 20.
Clark’s objection to this refusal by the trier
of fact to consider the evidence as it bore on his key defense was
made at all stages of the proceeding. In his post-trial motion to
vacate the judgment, Clark argued that “prohibiting consideration
of
any evidence reflecting upon a mentally ill criminal
defendant’s ability to form the necessary
mens rea
violates due process.” Record, Doc. 406, p. 8. Clark pressed
the same argument in the Arizona Court of Appeals. See Appellant’s
Opening Brief in No. 1CA–CR–03–0851 etc., pp. 46–52 (hereinafter
Appellant’s Opening Brief). He also noted that the trial judge had
erred in refusing to consider non-expert testimony—presumably what
the Court would call observation evidence—on Clark’s mental
illness.
Id., at 47–48
. (“The trial court
therefore violated [Clark’s] right to present a defense because
[the] court refused to consider
any evidence,
including the multiple testimonials of
lay witnesses … in
deciding whether he could form the requisite
mens rea”).
The appeals court decided the issue on the merits, holding that the
trial court was correct not to consider the evidence of mental
illness in determining whether Clark had the
mens rea for
first-degree murder. See App. 351–353. It offered no distinction at
all between observation or mental-disease evidence.
Notwithstanding the appeals court’s decision,
the Court states that the issue was not clearly presented to the
state courts. See
ante, at 21–24. According to the Court,
Clark only raised an objection based on
State v.
Mott, 187 Ariz. 536, 931 P. 2d 1046 (1997) (en banc),
see
ante, at 21–24, and
Mott’s holding was
limited to the exclusion of mental-disease and capacity evidence,
see
ante, at 19. The Court is incorrect, and on both
counts.
First, Clark’s claim goes well beyond an
objection to
Mott. In fact, he specifically attempted to
distinguish
Mott by noting that the trial court in this
case refused to consider all evidence of mental illness. See
Record, Doc. 406, at 8; see also Appellant’s Opening Brief 48.
The Court notices these arguments but criticizes Clark’s counsel
for not being specific about the observation evidence he wanted the
trial court to consider. See
ante, at 22. There was no
reason, though, for Clark’s counsel to believe additional
specificity was required, since there was no evident distinction in
Arizona law between observation evidence and mental-disease
testimony.
Second,
Mott’s holding was not
restricted to mental-disease evidence. The Arizona Supreme Court
did not refer to any distinction between observation and
mental-disease evidence, or lay and expert testimony. Its holding
was stated in broad terms: “Arizona does not allow evidence of a
defendant’s mental disorder short of insanity either as an
affirmative defense or to negate the
mens rea element of a
crime.” 187 Ariz., at 541, 931 P. 2d, at 1051; see
id., at 540, 931 P. 2d, at 1050 (“The legislature’s
decision … evidences its rejection of the use of psychological
testimony to challenge the
mens rea element of a crime”).
The Court attempts to divine a fact/opinion distinction in
Mott based on
Mott’s distinguishing a case,
State v.
Christensen, 129 Ariz. 32, 628
P. 2d 580 (1981) (in banc), where evidence about behavioral
tendencies was deemed admissible. See
ante, at 19.
Christensen, though, also addressed an expert opinion; the
difference was that the evidence there concerned a “character trait
of acting reflexively in response to stress,” not a mental illness.
Mott, supra, at 544, 931 P. 2d, at 1054. Since the
Court recognizes the Arizona Court of Appeals relied on
Mott, the expansive rule of exclusion in
Mott—without any suggestion of a limitation depending on
the kind of evidence—should suffice for us to reach the so-called
observation-evidence issue. Even if, as the Court contends, see
ante, at 15,
Mott is limited to expert testimony,
the Court’s categories still do not properly interpret
Mott, because the Court’s own definition of observation
evidence includes some expert testimony, see
ante, at
17.
It makes no difference that in the appeals
court Clark referred to the issue as inability to form knowledge or
intent. See Appellant’s Opening Brief 46–52. He did not insist on
some vague, general incapacity. He stated, instead, that he
“suffered from a major mental illness and was psychotic at the time
of the offense.”
Id., at 48. Even if Clark’s arguments
were insufficient to apprise the state court of the argument,
“[o]ur traditional rule is that ‘[o]nce a federal claim is properly
presented, a party can make any argument in support of that claim;
parties are not limited to the precise arguments they made
below.’ ”
Lebron v.
National Railroad Passenger
Corporation, 513 U. S. 374, 379
(1995) (quoting
Yee v.
Escondido, 503 U. S. 519, 534
(1992)). The claim is clear. Though it seems to be obscure to this
Court, it was understood by the Arizona Court of Appeals, which
stated: “Clark argues that the trial court erred in refusing to
consider evidence of his mental disease or defect in determining
whether he had the requisite
mens rea to commit
first-degree murder.” App. 351. When the question is what the state
court held, it is not instructive for this Court to recast the
words the state court used.
The razor-thin distinction the Court draws
between evidence being used to show incapacity and evidence being
used to show lack of
mens rea directly does not identify
two different claims. Clark’s single claim, however characterized,
involves the use of the same mental-illness evidence to decide
whether he had the requisite knowledge or intent. The various ways
in which the evidence is relevant in disproving
mens rea
hardly qualify as separate claims. The new arguments allowed in
Lebron and
Yee, by comparison, were far more
disconnected from the initial bases for the alleged violations. See
Lebron, supra, at 378, 379 (for purposes of showing state
action, petitioner could argue that Amtrak was a Government entity
even though he argued below only that it was a private entity with
close connections to Government entities, because the claim was
simply “that Amtrak did not accord him the rights it was obliged to
provide by the First Amendment”);
Yee, supra, at 534, 535
(petitioners could argue that an ordinance constituted a regulatory
taking, even though they arguably asserted in the Court of Appeals
only a physical taking, because the claim was simply “that the
ordinance effects an unconstitutional taking”). If we give this
latitude to litigants in civil cases, surely we must do so here.
Furthermore, to the extent any ambiguity remains on whether the
claim was raised, the proper course is to remand. See
Bradshaw v.
Richey, 546 U. S. ___, ___ (2005)
(slip op., at 6)
(per curiam). Unless the state court
clearly decides an issue on state-law grounds, which the Court does
not contend occurred here, there is no bar to our review of the
federal question. See
Harris v.
Reed, 489 U. S. 255, 261–262
(1989).
Before this Court Clark framed the issue in
broad terms that encompass the question whether the evidence of his
mental illness should have been considered to show he did not at
the time of the offense have the knowledge or intent to shoot a
police officer. See Brief for Petitioner i (“Questions Presented
for Review: (1) Whether Arizona’s blanket exclusion of evidence and
refusal to consider mental disease or defect to rebut the state’s
evidence on the element of
mens rea violated Petitioner’s
right to due process under the United States Constitution,
Fourteenth Amendment?”), 22 (“Here, the trial court held that under
the
Mott rule it was obliged to find as a fact that
[Clark] knew he was shooting a police officer to death—a necessary
factual element of the only form of first degree murder charged
against [Clark]—while simultaneously refusing to consider [Clark’s]
evidence that an acute episode of his chronic paranoid
schizophrenic illness prevented him from actually having that
knowledge” (emphasis omitted)), 31–32 (the Arizona courts erred in
holding Clark “could be punished as though he had this knowledge
and intent although he may not in fact have had either”); Reply
Brief for Petitioner 3 (challenging the trial judge’s refusal “to
give any consideration to the mental-illness evidence in making his
factual findings as to whether [Clark] did or did not act with the
state of mind required for a first-degree murder conviction”). An
entire section of Clark’s opening brief argues that the evidence of
mental illness should have been considered to rebut the
prosecution’s inference of knowledge or intent from the factual
circumstances of the crime. See Brief for Petitioner 13–21. This
line of argument concerns facts of behavior and amounts to more
than a claim of general incapacity.
Clark seeks resolution of issues that can be
complex and somewhat overlapping. In the end, however, we must
decide whether he had the right to introduce evidence showing he
lacked the intent or knowledge the statute itself sets forth in
describing a basic element of the crime. Clark has preserved this
issue at all stages, including in this Court.
II
Clark was charged with
first-degree murder for the shooting of Officer Jeffrey Moritz. “A
person commits first-degree murder if,” as relevant here,
“[i]ntending or knowing that the person’s conduct will cause death
to a law enforcement officer, the person causes the death of a law
enforcement officer who is in the line of duty.” Ariz. Rev. Stat.
Ann. §13–1105(A)(3) (West Supp. 2005). Clark challenges the trial
court’s refusal to consider any evidence of mental illness, from
lay or expert testimony, in determining whether he acted with the
knowledge or intent element of the crime. See App. 9; see also
Mott, 187 Ariz., at 541, 931 P. 2d, at 1051.
States have substantial latitude
under the Constitution to define rules for the exclusion of
evidence and to apply those rules to criminal defendants. See
United States v.
Scheffer, 523 U. S. 303, 308
(1998). This authority, however, has constitutional limits.
“ ‘Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or Confrontation
Clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants “a meaningful opportunity to present a complete
defense.” ’ ”
Holmes v.
South Carolina,
547 U. S. ___, ___ (2006) (slip op., at 4) (quoting
Crane
v.
Kentucky, 476 U. S. 683, 690
(1986), in turn quoting
California v.
Trombetta,
467 U. S. 479,
485 (1984)). “This right is abridged by evidence rules that
‘infring[e] upon a weighty interest of the accused’ and are
‘ “arbitrary” or “disproportionate to the purposes they are
designed to serve.” ’ ”
Holmes, supra, at ___
(slip op., at 4) (quoting
Scheffer,
supra, at
308, in turn quoting
Rock v.
Arkansas, 483 U. S. 44, 58, 56
(1987)).
The central theory of Clark’s defense was that
his schizophrenia made him delusional. He lived in a universe where
the delusions were so dominant, the theory was, that he had no
intent to shoot a police officer or knowledge he was doing so. It
is one thing to say he acted with intent or knowledge to pull the
trigger. It is quite another to say he pulled the trigger to kill
someone he knew to be a human being and a police officer. If the
trier of fact were to find Clark’s evidence sufficient to discount
the case made by the State, which has the burden to prove knowledge
or intent as an element of the offense, Clark would not be guilty
of first-degree murder under Arizona law.
The Court attempts to diminish Clark’s
interest by treating mental-illness evidence as concerning only
“judgment,” rather than fact.
Ante, at 36. This view
appears to derive from the Court’s characterization of Clark’s
claim as raising only general incapacity. See
ibid. This
is wrong for the reasons already discussed. It fails to recognize,
moreover, the meaning of the offense element in question here. The
mens rea element of intent or knowledge may, at some
level, comprise certain moral choices, but it rests in the first
instance on a factual determination. That is the fact Clark sought
to put in issue. Either Clark knew he was killing a police officer
or he did not.
The issue is not, as the Court insists,
whether Clark’s mental illness acts as an “excuse from customary
criminal responsibility,”
ante, at 30, but whether his
mental illness, as a factual matter, made him unaware that he was
shooting a police officer. If it did, Clark needs no excuse, as
then he did not commit the crime as Arizona defines it. For the
elements of first-degree murder, where the question is knowledge of
particular facts—that one is killing a police officer—the
determination depends not on moral responsibility but on empirical
fact. Clark’s evidence of mental illness had a direct and
substantial bearing upon what he knew, or thought he knew, to be
the facts when he pulled the trigger; this lay at the heart of the
matter.
The trial court’s exclusion was all the more
severe because it barred from consideration on the issue of
mens rea all this evidence, from any source, thus
preventing Clark from showing he did not commit the crime as
defined by Arizona law. Quite apart from due process principles, we
have held that a bar of this sort can be inconsistent with the
Confrontation Clause. See
Delaware v.
Van
Arsdall, 475 U.
S. 673 (1986). In
Van Arsdall the Court held a state
court erred in making a ruling that “prohibited
all
inquiry into” an event.
Id., at 679. At issue was a line
of defense questioning designed to show the bias of a prosecution
witness. In the instant case the ruling in question bars from
consideration all testimony from all witnesses necessary to present
the argument that was central to the whole case for the defense: a
challenge to the State’s own proof on an element of the crime. The
Due Process and Compulsory Process Clauses, and not the
Confrontation Clause, may be the controlling standard; but the
disability imposed on the accused is every bit as substantial and
pervasive here as it was in
Van Arsdall.
Arizona’s rule is problematic because it
excludes evidence no matter how credible and material it may be in
disproving an element of the offense. The Court’s cases have noted
the potential arbitrariness of
per se exclusions and, on
this rationale, have invalidated various state prohibitions. See
Holmes, supra, at ___ (slip op., at 9) (rule excluding, in
certain cases, evidence that a third party may have committed the
crime “even if that evidence, if viewed independently, would have
great probative value and even if it would not pose an undue risk
of harassment, prejudice, or confusion of the issues”);
Rock,
supra, at 56 (rule excluding all hypnotically refreshed
testimony “operates to the detriment of any defendant who undergoes
hypnosis, without regard to the reasons for it, the circumstances
under which it took place, or any independent verification of the
information it produced”);
Washington v.
Texas,
388 U. S. 14, 22
(1967) (rule excluding accomplice testimony “prevent[s] whole
categories of defense witnesses from testifying on the basis of
a priori categories that presume them unworthy of
belief”).
This is not to suggest all general rules on
the exclusion of certain types of evidence are invalid. If the rule
does not substantially burden the defense, then it is likely
permissible. See
Scheffer, 523 U. S., at 316–317
(upholding exclusion of polygraph evidence in part because this
rule “does not implicate any significant interest of the accused”);
id., at 318 (Kennedy, J., concurring in part and
concurring in judgment) (“[S]ome later case might present a more
compelling case for introduction of the testimony than this one
does”). Where, however, the burden is substantial, the State must
present a valid reason for its
per se evidentiary
rule.
In the instant case Arizona’s proposed reasons
are insufficient to support its categorical exclusion. While the
State contends that testimony regarding mental illness may be too
incredible or speculative for the jury to consider, this does not
explain why the exclusion applies in all cases to all evidence of
mental illness. “A State’s legitimate interest in barring
unreliable evidence does not extend to
per se exclusions
that may be reliable in an individual case.”
Rock, 483 U.
S., at 61. States have certain discretion to bar unreliable or
speculative testimony and to adopt rules to ensure the reliability
of expert testimony. Arizona has done so, and there is no reason to
believe its rules are insufficient to avoid speculative evidence of
mental illness. See Ariz. Rules of Evid. 403, 702 (West 2005). This
is particularly true because Arizona applies its usual case-by-case
approach to permit admission of evidence of mental illness for a
variety of other purposes. See,
e.g., State v.
Lindsey, 149 Ariz. 472, 474–475, 720 P. 2d 73, 74–75
(1986) (en banc) (psychological characteristics of molestation
victims);
State v.
Hamilton, 177 Ariz. 403,
408–410, 868 P. 2d 986, 991–993 (App. 1993) (psychological
evidence of child abuse accommodation syndrome);
Horan v.
Indus. Comm’n, 167 Ariz. 322, 325–326, 806 P. 2d 911,
914–915 (App. 1991) (psychiatric testimony regarding neurological
deficits).
The risk of jury confusion also fails to
justify the rule. The State defends its rule as a means to avoid
the complexities of determining how and to what degree a mental
illness affects a person’s mental state. The difficulty of
resolving a factual issue, though, does not present a sufficient
reason to take evidence away from the jury even when it is crucial
for the defense. “We have always trusted juries to sort through
complex facts in various areas of law.”
United States v.
Booker, 543
U. S. 220, 289 (2005) (Stevens, J., dissenting in part). Even
were the risk of jury confusion real enough to justify excluding
evidence in most cases, this would provide little basis for
prohibiting all evidence of mental illness without any inquiry into
its likely effect on the jury or its role in deciding the linchpin
issue of knowledge and intent. Indeed, Arizona has a rule in place
to serve this very purpose. See Ariz. Rule of Evid. 403.
Even assuming the reliability and
jury-confusion justifications were persuasive in some cases, they
would not suffice here. It does not overcome the constitutional
objection to say that an evidentiary rule that is reasonable on its
face can be applied as well to bar significant defense evidence
without any rational basis for doing so. In
Van Arsdall,
for example, the Court rejected the application of Delaware Rule of
Evidence 403, which allows relevant evidence to be excluded where
its probative value is substantially outweighed by the risk of
unfair prejudice or other harms to the trial process. 475 U. S., at
676, and n. 2. While the Rule is well established and designed
for a legitimate function, the Constitution prevented an
application that deprived the defendant of all inquiry into an
important issue.
Id., at 679. Other cases have applied
this same case-specific analysis in deciding the legitimacy of an
exclusion. See,
e.g., Rock, supra, at 62 (the
“circumstances present an argument for admissibility of
petitioner’s testimony in this particular case, an argument that
must be considered by the trial court”);
Chambers v.
Mississippi, 410 U. S. 284, 302
(1973) (“In these circumstances, where constitutional rights
directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the ends
of justice”); cf.
Scheffer, 523 U. S., at 318 (Kennedy,
J., concurring in part and concurring in judgment).
The Court undertakes little analysis of the
interests particular to this case. By proceeding in this way it
devalues Clark’s constitutional rights. The reliability rationale
has minimal applicability here. The Court is correct that many
mental diseases are difficult to define and the subject of great
debate. See
ante, at 33–34. Schizophrenia, however, is a
well-documented mental illness, and no one seriously disputes
either its definition or its most prominent clinical
manifestations. The State’s own expert conceded that Clark had
paranoid schizophrenia and was actively psychotic at the time of
the killing. See App. 254–257. The jury-confusion rationale, if it
is at all applicable here, is the result of the Court’s own
insistence on conflating the insanity defense and the question of
intent. Considered on its own terms, the issue of intent and
knowledge is a straightforward factual question. A trier of fact is
quite capable of weighing defense testimony and then determining
whether the accused did or did not intend to kill or knowingly kill
a human being who was a police officer. True, the issue can be
difficult to decide in particular instances, but no more so than
many matters juries must confront.
The Court says mental-illness evidence “can
easily mislead,”
ante, at 36, and may “tel[l] us little or
nothing about the ability of the defendant to form
mens
rea,”
ante, at 35. These generalities do not,
however, show how relevant or misleading the evidence in this case
would be (or explain why Arizona Rule of Evidence 403 is
insufficient for weighing these factors). As explained above, the
evidence of Clark’s mental illness bears directly on
mens
rea, for it suggests Clark may not have known he was killing a
human being. It is striking that while the Court discusses at
length the likelihood of misjudgment from placing too much emphasis
on evidence of mental illness, see
ante, at 33–38, it
ignores the risk of misjudging an innocent man guilty from refusing
to consider this highly relevant evidence at all. Clark’s expert,
it is true, said no one could know exactly what was on Clark’s mind
at the time of the shooting. See
ante, at 37. The expert
testified extensively, however, about the effect of Clark’s
delusions on his perceptions of the world around him, and about
whether Clark’s behavior around the time of the shooting was
consistent with delusional thinking. This testimony was relevant to
determining whether Clark knew he was killing a human being. It
also bolstered the testimony of lay witnesses, none of which was
deemed unreliable or misleading by the state courts.
For the same reasons, the Court errs in
seeking support from the American Psychiatric Association’s
statement that a psychiatrist may be justifiably reluctant to reach
legal conclusions regarding the defendant’s mental state. See
ante, at 37. In this very case, the American Psychiatric
Association made clear that psychiatric evidence plays a crucial
role regardless of whether the psychiatrist testifies on the
ultimate issue: “Expert evidence of mental disorders, presented by
qualified professionals and subject to adversarial testing, is both
relevant to the mental-state issues raised by
mens rea
requirements and reliable… . Such evidence could not be
condemned wholesale without unsettling the legal system’s central
reliance on such evidence.” Brief for American Psychiatric
Association et al. as
Amici Curiae 15.
Contrary to the Court’s suggestion, see
ante, at 35–36, the fact that the state and defense
experts drew different conclusions about the effect of Clark’s
mental illness on his mental state only made Clark’s evidence
contested; it did not make the evidence irrelevant or misleading.
The trial court was capable of evaluating the competing
conclusions, as factfinders do in countless cases where there is a
dispute among witnesses. In fact, the potential to mislead will be
far greater under the Court’s new evidentiary system, where jurors
will receive observation evidence without the necessary explanation
from experts.
The fact that mental-illness evidence may be
considered in deciding criminal responsibility does not compensate
for its exclusion from consideration on the
mens rea
elements of the crime. Cf.
ante, at 33. The evidence
addresses different issues in the two instances. Criminal
responsibility involves an inquiry into whether the defendant knew
right from wrong, not whether he had the
mens rea elements
of the offense. While there may be overlap between the two issues,
“the existence or nonexistence of legal insanity bears no necessary
relationship to the existence or nonexistence of the required
mental elements of the crime.”
Mullaney v.
Wilbur, 421
U. S. 684, 706 (1975) (Rehnquist, J., concurring).
Even if the analyses were equivalent, there is
a different burden of proof for insanity than there is for
mens
rea. Arizona requires the defendant to prove his insanity by
clear and convincing evidence. See Ariz. Rev. Stat. Ann. §13–502(C)
(West 2001). The prosecution, however, must prove all elements of
the offense beyond a reasonable doubt. See
Mullaney,
supra, at 703–704;
In re Winship, 397 U. S. 358, 364
(1970). The shift in the burden on the criminal responsibility
issue, while permissible under our precedent, see
Leland
v.
Oregon, 343 U. S. 790 (1952),
cannot be applied to the question of intent or knowledge without
relieving the State of its responsibility to establish this element
of the offense. See
Sandstrom v.
Montana,
442 U. S. 510,
524 (1979) (jury instruction that had the effect of placing the
burden on the defendant to disprove that he had the requisite
mental state violates due process). While evidentiary rules do not
generally shift the burden impermissibly, where there is a right to
have evidence considered on an element of the offense, the right is
not respected by allowing the evidence to come in only on an issue
for which the defendant bears the burden of proof. See
Cool v.
United States, 409 U. S. 100, 103
(1972)
(per curiam) (jury instruction that allowed jury to
consider accomplice’s testimony only if it was true beyond a
reasonable doubt “places an improper burden on the defense and
allows the jury to convict despite its failure to find guilt beyond
a reasonable doubt”);
Martin v.
Ohio, 480 U. S. 228, 233–234
(1987) (State can shift the burden on a claim of self-defense, but
if the jury were disallowed from considering self-defense evidence
for purposes of deciding the elements of the offense, it “would
relieve the State of its burden and plainly run afoul of
Winship’s mandate”). By viewing the Arizona rule as
creating merely a “presumption of sanity (or capacity or
responsibility),”
ante, at 30, rather than a presumption
that the
mens rea elements were not affected by mental
illness, the Court fails to appreciate the implications for
Winship.
The State attempts to sidestep the evidentiary
issue entirely by claiming that its mental-illness exclusion simply
alters one element of the crime. The evidentiary rule at issue
here, however, cannot be considered a valid redefinition of the
offense. Under the State’s logic, a person would be guilty of
first-degree murder if he knowingly or intentionally killed a
police officer or committed the killing under circumstances that
would show knowledge or intent but for the defendant’s mental
illness. To begin with, Arizona law does not say this. And if it
did, it would be impermissible. States have substantial discretion
in defining criminal offenses. In some instances they may provide
that the accused has the burden of persuasion with respect to
affirmative defenses. See
Patterson v.
New York,
432 U. S. 197,
210 (1977). “But there are obviously constitutional limits beyond
which the States may not go in this regard.”
Ibid. If it
were otherwise, States could label all evidentiary exclusions as
redefinitions and so evade constitutional requirements. There is no
rational basis, furthermore, for criminally punishing a person who
commits a killing without knowledge or intent only if that person
has a mental illness. Cf.
Robinson v.
California,
370 U. S. 660,
666 (1962). The State attempts to bring the instant case within the
ambit of
Montana v.
Egelhoff, 518 U. S. 37 (1996); but
in
Egelhoff the excluded evidence concerned voluntary
intoxication, for which a person can be held responsible. Viewed
either as an evidentiary rule or a redefinition of the offense, it
was upheld because it “comports with and implements society’s moral
perception that one who has voluntarily impaired his own faculties
should be responsible for the consequences.”
Id., at 50
(plurality opinion). An involuntary mental illness does not
implicate this justification.
Future dangerousness is not, as the Court
appears to conclude, see
ante, at 38–39, n. 45, a rational
basis for convicting mentally ill individuals of crimes they did
not commit. Civil commitment proceedings can ensure that
individuals who present a danger to themselves or others receive
proper treatment without unfairly treating them as criminals. The
State presents no evidence to the contrary, and the Court ought not
to imply otherwise.
The State gains little support from
Fisher v.
United States, 328 U. S. 463 (1946).
There the defendant requested an instruction from the trial court
that the jury consider his mental deficiencies in determining his
capacity for premeditation and deliberation.
Id., at 470.
The Court noted that “[i]n view of the status of the defense of
partial responsibility in the District and the nation no contention
is or could be made of the denial of due process.”
Id., at
466. This dictum may be attributable to the fact that the cases
recognizing a defendant’s evidentiary rights and the prosecution’s
duty to prove all elements beyond a reasonable doubt were still
decades away. It may also reflect the fact that the jury
instructions as given did seem to allow the jury to consider
evidence of mental deficiency if it disproved the elements of the
offense. See
id., at 467, n. 3 (The jury instructions
stated, “ ‘It is further contended that even if sane and
responsible, there was no deliberate intent to kill, nor in fact
any actual intent to kill. Therefore if not guilty by reason of
insanity, the defendant at most is guilty only of second degree
murder or manslaughter’ ”). Even further ambiguity comes from
the fact that the defense in
Fisher concerned a claim that
the petitioner was “mentally somewhat below the average” with a
“psychopathic personality” of aggression.
Id., at 467.
This general claim of mental deficiencies was relevant to the
“theory of partial responsibility,”
id., at 470, he wanted
the jury to consider. Unlike the mental illness here, though, which
concerns inadequacy of perception and information processing, the
petitioner’s claim may not have been relevant to
mens rea
unless
mens rea were redefined to include an element of
responsibility.
Fisher’s language, then, does not control
this case.
While Arizona’s rule is not unique, either
historically or in contemporary practice, this fact does not
dispose of Clark’s constitutional argument. To the extent
Fisher may have suggested the contrary, subsequent cases
make clear that while the existence of the rule in some
jurisdictions is a significant factor to consider, see
Egelhoff, supra, at 43 (plurality opinion), it is not
dispositive for evaluation of a claim that the accused was
foreclosed from introducing evidence crucial to the defense. The
evidentiary exclusion of accomplice testimony the Court invalidated
in
Washington was, in fact, well established. See 388 U.
S., at 21–22. The exclusion of hypnotically refreshed testimony
likewise had some support when the Court held it unconstitutional
as applied to a defendant’s own testimony.
Rock, 483 U.
S., at 57. While 13 States still impose significant restrictions on
the use of mental-illness evidence to negate
mens rea, a
substantial majority of the States currently allow it. Brief for
United States as
Amicus Curiae 22–23, and n. 13. The
fact that a reasonable number of States restrict this evidence
weighs into the analysis, but applying the rule as a
per
se bar, as Arizona does, is so plainly unreasonable that it
cannot be sustained.
Putting aside the lack of any legitimate state
interest for application of the rule in this case, its
irrationality is apparent when considering the evidence that is
allowed. See
Washington, supra, at 22 (“The absurdity of
the rule is amply demonstrated by the exceptions that have been
made to it”). Arizona permits the defendant to introduce, for
example, evidence of “behavioral tendencies” to show he did not
have the required mental state. See
Mott, 187 Ariz., at
544, 931 P. 2d, at 1054;
Christensen, 129 Ariz., at
35–36, 628 P. 2d, at 583–584. While defining mental illness is
a difficult matter, the State seems to exclude the evidence one
would think most reliable by allowing unexplained and uncategorized
tendencies to be introduced while excluding relatively
well-understood psychiatric testimony regarding well-documented
mental illnesses. It is unclear, moreover, what would have happened
in this case had the defendant wanted to testify that he thought
Officer Moritz was an alien. If disallowed, it would be tantamount
to barring Clark from testifying on his behalf to explain his own
actions. If allowed, then Arizona’s rule would simply prohibit the
corroboration necessary to make sense of Clark’s explanation. In
sum, the rule forces the jury to decide guilt in a fictional world
with undefined and unexplained behaviors but without mental
illness. This rule has no rational justification and imposes a
significant burden upon a straightforward defense: He did not
commit the crime with which he was charged.
These are the reasons for my respectful
dissent.
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