Ake v. Oklahoma Motion for Leave to File Brief of Amicus Curiae and Brief of Amicus Curiae American Psychological Association and Oklahoma Psychological Association in Support of Petitioner
Public Court Documents
June 2, 1984

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Brief Collection, LDF Court Filings. Ake v. Oklahoma Motion for Leave to File Brief of Amicus Curiae and Brief of Amicus Curiae American Psychological Association and Oklahoma Psychological Association in Support of Petitioner, 1984. 125f6f2c-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e6306085-7671-44db-9c00-6df20bfb2e70/ake-v-oklahoma-motion-for-leave-to-file-brief-of-amicus-curiae-and-brief-of-amicus-curiae-american-psychological-association-and-oklahoma-psychological-association-in-support-of-petitioner. Accessed April 29, 2025.
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" ..... l 1.... !■ • 1 • ■. • I. . * . ‘ j S-S* | | ’••!• 1!" ! ■' !'it J ! ’; »;i' « « w 'withe imina; ^SpCIATION<fA33t •ETOTlOlfEH? m m S S eT^MREL^E.WING®^ Counsel of Record j ±,‘<arS.m m m , S W S I f f i.rjJiLiivovjr r - v. ~ • ■ Ai v.vy •v̂' *'«<¥*'- - _________ SfreefyNiy S n g M ^ d p ^ O S g ^ . f y ^ p j ^ m u x a j u r ^ m WiMWm®. :iEi►.* - fr«FfOFJ H ALTERNATIVE STATEMENT OF QUESTIONS PRESENTED Amici believe tha t the questions presented by the facts of Ake v. State of Oklahoma are the following: 1. Does the Constitution require a state to pay for a psychological evaluation of defendant’s state of mind a t the time of the offense where the defendant (1) is charged with a capital crime; (2) has pleaded insanity as his only defense; (3) has the burden of establishing a reasonable doubt as to his sanity; (4) has been found by state mental health experts to be mentally ill, incompetent to stand trial, dangerous, and incapable of determining righ t from wrong, less than six months a fter the crime; and (5) is indigent? 2. Does the Constitution require a state to pro vide an indigent defendant with the expert assistance necessary to cross examine and rebut expert testi mony regarding his future dangerousness presented by the state to support the death penalty? I n T h e îtprmp (tfmtrl of % luitpfc States October T er m , 1983 No. 83-5424 Glen Burton A r e , v. Petitioner, State of Ok la ho m a , Respondent. On Writ of Certiorari to the Oklahoma Court of Criminal Appeals MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE AMERICAN PSYCHOLOGICAL ASSOCIATION AND OKLAHOMA PSYCHOLOGICAL ASSOCIATION IN SUPPORT OF PETITIONER Pursuant to Rule 36.3 of the Rules of this Court, the American Psychological Association (hereafter “APA” ) and the Oklahoma Psychological Association (hereafter “OPA” ) move for leave to file the attached brief amici curiae. The reasons supporting the granting of this motion and the issues which amici are uniquely qualified to address (iii) iv are set forth in the statement of interest of amici in the attached brief. The APA has filed amicus curiae briefs in Youngberg v. Romeo, 457 U.S. 307 (1982) (the rights of mentally retarded inm ates); Blue Shield v. McCready, 457 U.S. 465 (1982) (the standing of an insured patient receiving psychotherapy to sue under the Clayton A c t); Mills v. Rogers, 457 U .S .291 (1982) fthe right o f a competent ~ committed mental patient to refuse psychotropic d ru g s); Metropolitan Edison Co. v. People Against Nuclear Energy, ------ U.S. ------ , 103 S. Ct. 1556 (1983) (the cognizability of psychological harm under the National En vironmental Policy A c t) ; City of Akron v. Akron Center for Reproductive Health, In c .,------U .S .------- , 103 S. Ct. 2481 (1983) (abortion counseling by non-physicians); and State o f New York v. Uplinger, ------ U.S. — - , ------U.S.L.W .------- (May 30, 1984) (deviant sexual con duct). Petitioner has consented to the filing of this brief, and his letter is being filed with the clerk of this Court. Con sent was requested of respondent, but has been denied. Amici respectfully submit that they have important, rele vant expertise and information to contribute to the Court that will be useful in deciding this case, and that will not be provided by the parties. Respectfully submitted, Margaret F arrell E wing (Counsel of Record) Donald N. Bersoff Bruce J. E n nis E n nis, F riedman, Bersoff & E wing 1200 Seventeenth Street, N.W. Washington, D.C. 20036 (202) 775-8100 Attorneys for Amici Curiae June 2,1984 TABLE OF CONTENTS Page ALTERNATIVE STATEMENT OF QUESTIONS PRESENTED — — — --------- ----- - — — - MOTION FOR LEAVE TO FILE BRIEF OF AMICI C U R IA E ......................... i»i TABLE OF AUTHORITIES................ via INTEREST OF AM IC I_________________________ 1 SUMMARY OF ARGUMENT............... 3 ARGUMENT ..... 6 I. DEFENDANT WAS CONSTITUTIONALLY ENTITLED TO A STATE FINANCED PSY CHOLOGICAL EVALUATION TO GIVE HIM AN ADEQUATE OPPORTUNITY TO SUP PORT HIS INSANITY PLEA---------------------- 6 A. Due Process Requires that a Defendant be Provided a Psychological Evaluation of his State of Mind at the Time of the Offense Where the Defendant (1) Is Charged With a Capital Offense; (2) Has Pleaded Insanity as his Only Defense; (3) Bears the Burden of Overcoming a State Imposed Presumption of Sanity; (4) Has Been Determined by State Experts and/or a State Court to be Mentally 111, Dangerous, Incompetent and Incapable of Telling Right from Wrong, Less Than Six Months After the Offense; and (5) Is Indigent.......................................................... 6 1. The Constitution Requires the Highest Standards of Procedural Fairness in Capital Cases to Minimize the Possibility of Erroneous Determinations-------------- 6 (v) : vi TABLE OF CONTENTS—Continued 2. The Possibility of an Erroneous Deter mination of Criminal Responsibility Was Unacceptably High Where the Defendant Was Denied a Psychological Evaluation after He. Had Pleaded Insanity and State Experts Had Found Him Mentally III, Less Than Six Months After the Crime.... 3. Having Created The Right To Plead Insanity, Oklahoma Must Accord Due Process And Other Constitutional Guar antees to those Seeking to Exercise that R ight........... ................................................. B. The Information and Opinions Provided by Qualified Mental Health Professionals are Relevant and Useful to the Trier of Fact... 1. The Factfinder Can Profit from Expert Testimony Regarding the Nature and Severity of Claimed Psychological Dys function and From Informed Estimates of the Defendants Knowledge, Percep tion and Motivation at a Given Time...... 2. Professional Psychologists Are Qualified to Provide Forensic Psychological Evalu ations and to Testify as Experts in Crim inal T rials................................................... C. Requiring The State to Provide Indigent Defendants a Psychological Evaluation Would Not Place an Unreasonable Procedural or Financial Burden on the State................. 1. The Procedure For Providing Indigent Defendants An Expert Mental Health Evaluation Need Not be Burdensome...... 2. The Cost of Providing Indigent Defend ants an Expert Mental Health Evaluation Would Not Be Unduly High..................... vii TABLE OF CONTENTS—Continued Page II. WHERE THE STATE HAS RELIED ON EX PERT PREDICTIONS OF DANGEROUSNESS TO ESTABLISH AGGRAVATING CIRCUM STANCES SUPPORTING THE DEATH PEN ALTY, IT MAY NOT DENY AN INDIGENT DEFENDANT THE ASSISTANCE OF A MENTAL HEALTH PROFESSIONAL TO EFFECTIVELY CROSS-EXAMINE AND RE BUT SUCH TESTIMONY ......... ......................... 26 CONCLUSION 30 vm &)&*» TABLE OF AUTHORITIES CASES: Page Addington v. Texas, 441 U.S. 418 (1979)----- ----- 9 Ake v. State, 663 P.2d 1 (Okla. Crim. App. 1983).. 8,9, 23,25 Barefoot v. Estelle, —•— U.S. — —, 61 U.S.L.W. 5189 (July 6, 1983)............................. ._................ ...passim Blue Shieldf v. McCready, 457 If.S. 465 (1982)™.:.. 20 Boddie v. Connecticut, 401 U.S. 378 (1971) ...... _... 14 Bush v. McCollum, 231 F. Supp. 560 (N.D. Tex. 1964), affid, 344 F.2d 672 (6th Cir. 1965) ........ 9 California v. Ramos,------U .S .------- , 51 U.S.L.W. 5220 (1983) ............................................................. 26 Carter v. State, 376 P.2d 351 (Okla. Crim. App. 1962) ......................................................................... 21 Drope v. Missouri, 420 U.S. 162 (1975)..... ........... 24 Eddings v. Oklahoma, 455 U.S. 104 (1982)............. 6, 27 Evans v. Bennett, 440 U.S. 1301 (1979).......... _... 7 Furman v. Georgia, 408 U.S. 238 (1972)................. 7 Gardner v. Florida, 430 U.S. 349 (1976)................ 6 Gideon v. Wainioright, 372 U.S. 335 (1963)........... 14 Griffin v. Illinois, 351 U.S. 12 (1955)..................... 14 Hidden v. Mutual Life Insurance Co., 217 F.2d 818 (4th Cir. 1954)................................................ 21 Hovey v. EUiott, 167 U.S. 409 (1897) .................... 14 Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962) (en banc) ...................................................... 21 Jurek v. Texas, 428 U.S. 262 (1976)........................... 27 Lockett v. Ohio, 438 U.S. 586 (1978)..................... 6 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .... .................................................... - ........... 14 PASE v. Hannon, 506 F. Supp. 831 (N.D. 111. 1980)........ 22 Parham v. J.R., 442 U.S. 584 (1979) .................... 29 Pate v. Robinson, 383 U.S. 375 (1966)...................... 24 People v. Hawthorne, 293 Mich. 15, 291 N.W. 205 (1940)........................................................................ 21 Powell v. Alabama, 287 U.S. 45 (1932)................... 6,14 Richardson v. State, 569 P.2d 1018 (Okla. Crim. App. 1977) 9 ix TABLE OF AUTHORITIES—Continued Page Rogers v. State, 634 P.2d 743 (Okla. Crim. App. 1981) - 8,21 Smith v. Baldi, 844 U.S. 561 (1952)......................... 8,11 Springer v. Collins, 444 F. Supp. 1049 (D. Md. 1977) ................................... ............................ - .....- 9 Strickland v. Washington, ------ U.S. ------ , 62 U.S.L.W. 4565 (May 14, 1984)_______ _____ 7,14,26 United States v. Edwards, 488 F.2d 1154 (6th Cir. 1974) ....................................................................... - 9 Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476 (4th Cir. 1980), cert, denied, 450 U.S. 916 (1981 )...........— ....... 20 Wolff v. McDonnell, 418 U.S. 539 (1974) — ..... .. 14 Woodson v. North Carolina, 428 U.S. 280 (1976).... 7 Youngberg v. Romeo, 457 U.S. 307 (1982).„.......... 9 UNITED STATES CONSTITUTION: Sixth Amendment________________ _______—.9,10,14 Eighth Amendment ...................................— ........ 28 Fourteenth Amendment ____________ ___- .......... passim STATUTES AND REGULATIONS: Code of Federal Regulations: Civilian Health and Medical Program of the Uni formed Services (CHAMPUS), 10 U.S.C. § 1071 etseq. (1976) ...........................................-............... 20 Comprehensive Employment and Training Act, 29 U.S.C. §§ 801 et seq. (1976).................... ............... 20 Disaster Relief Act, 42 U.S.C. § 5183 (1976)..... .. 20 Federal Employee Health Benefits Program, 5 U.S.C. § 8902(k) (1976)........................... ............. 20 Federal Employees Compensation Act, 5 U.S.C. §8101(2) (1976)...... .................... ......................... 20 Health Maintenance Organization Act, 42 U.S.C. § 300e-l (1976) ..... .......... .............. ......................... 20 Veterans Health Care Expansion Act; 38 U.S.C. § 613(b) (1976)............................. ................ ......... 20 Vocational Rehabilitation Act, 29 U.S.C. § 723 (a)(1) (1976)............................................. .......... 20 29 C.F.R. § 94.4 (bb) (1978) ....................................... 20 X TABLE OF AUTHORITIES—Continued Page 32 C.F.R. § 199.12(c) (3) (iii) (a) (1981)------------ 20 42 C.F.R. § 38.2(e) (1980) --------- ---------- ---- — 20 42 C.F.R. §§ 110.101,110.104 (1980) -... 20 21 Okla. Stat § 152 (1983) ....................................7 ,8 ,14 21 Okla. Stat §-701.10 (1983) .,__ _ 27 21 Okla. Stat § 701.12(7) (1983) ..-------------:------ 27 22 Okla. Stat § 1175.2 (1983).............- ..................... 24 36 Okla. Stat § 2652 (1976)....................................... 20 36 Okla. Stat § 6055 (1976)........................................ 20 59 Okla. Stat §§ 1351-1375 (1971).............. ............. 19 Rule 403, Fed. R. Evid. ............................................... 18 Rule 701, Fed. R. Evid........ ................- ..................— 18 Rule 703, Fed. R. Evid.................................................. 17,18 Rule 704, Fed. R. Evid........ — ......— ....................... 18 MISCELLANEOUS: 20 Am. Jur. 2d Evidence § 866.5 (1964)-------------- 17 A merican Bar Association Standing Commit tee on Association Standards F or Criminal J ustice, F irst Tentative Draft Criminal J us tice Mental H ealth Standards, Section 7-3.3 (July 1983) ..........................................................10,15, 24 American P sychiatric Association, Diagnostic and Statistical Manual III (3rd ed. 1980).... 13 A. Anastasi, P sychological Testing (4th ed. 1976).............................. ........................................... 22 Annual Report of the University of V irginia F orensic E valuation, Training and Research Center (1982)........................................................ 25 APA Criteria for Accreditation of Doctoral Training P rograms and I nternships (Jan. 1979) ........... - ............................................................ 1® APA, E thical P rinciples of P sychologists, 36 Am . P sychol. 633 (1981)................ 19 APA, Recognition and Reimbursement for P sychological Services (1983)......................... 20 APA, Standards for P roviders of P sychological Services, 32 Am . P sychol. 495 (1977).............. 19 xi TABLE OF AUTHORITIES—Continued Page Bonnie and Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 Va. L. Rev. 427 (1980) ______ :.......................................... 9,10,16,17, 21 Comment The Psychologist as an Expert Witness, 15 Kan . L. Rev. 88 ( 1 9 6 6 ) 2 1 - 2 2 H. Davidson, F orensic P sychiatry 35 (2d ed. 1965) ....................................................................... - 16 Diamond & Louisell, The Psychiatrist as an Expert Witness; Some Ruminations and Speculations, 63 Mich . L. Rev. 1335 (1965)............................... 17 E ighth Mental Measurements Yearbook (O. Buros, ed. 1978) ...................................................... 22 Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974)................................ 22,28 Ewing, Dr. Death and The Case for an Ethical Ban on Psychiatric and Psychological Predictions of Dangerousness in Capital Sentencing Cases, 8 A. J. Law & Med. 407 (1983) .............................. 28 S. F reud, Psycho-analysis and the Establishment of the Facts in Legal Proceedings, in 9 T h e Com plete P sychological Works of Sigmund F reud 103 (std. ed. J. Strachey 1959) (originally pub lished in 1906) ......................................................... 21 Gass, The Psychologist as Expert Witness, 38 Md. L. REV. 539 (1979)............................................. 21, 22, 28 A. Goldstein, T h e I nsanity Defense 19 (1967).. 16,18 Hess, Entry Requirements for Professional Prac tice of Psychology, 32 Am . P sychol. 365 (1977).. 19 Kozol, Boucher & Garafolo, The Diagnosis and Treatment of Dangerousness, 18 Crime & DE LINQUENCY 371 (1971) ......................................... 28 Lahman, L icensure Requirements for P sy chologists: USA and Canada (1978) ............ 19 Lassen, The Psychologist as an Expert Witness in Assessing Mental Disease or Defect, 50 A.B.A. J. 239 (1964)................................................................. 21 . ' fe$a " ; {is» xii TABLE OF AUTHORITIES—Continued Page Levine, Psychologist as Expert Witness in "Psy chiatric’’ Questions, 20 Clev. St. L. Rev. 235 (1955)____________________________________ 21 Levitt, The Psychologist: A Neglected Legal Re source, 45 IND. L J. 82 (1969) —........... . 21 Louisell, The Psychologist in Todayfs Legal World, 39 Min n . L. rev. 235 (1955) ...--------- ---------- 21 Model Penal Code §§ 2.04, 2.08 (Proposed Official Draft, 1962) ________ 10 Morse, Failed Explanations and Criminal Respon sibility: Experts and the Unconscious, 68 Va. L. rev. 971 (1982).................................................-..... 22 Monahan, The Predictions of Violent Behavior; Developments in Psychology and Law, The Masters Lecture Series: Psychology and The Law 147 (Scheirer and Hammonds, ed. 1982)............................ .............................................. 28 H. Munsterberg, On the Witness Stand : Essays on Psychology and Crime (1908).................... 21 Nash, Parameters and Distinctiveness of Psycho logical Testimony, 5 Prof. Psychol. 239 (1974)............................ 21 Note, A Matter of Life and Death: Due Process Protection in Capital Clemency Proceedings, 90 Yale L. J. 889 (1981) ........................................... 6 Note, Psychologist’s Diagnosis Regarding Mental Disease or Defect Admissible on Issue of In sanity, 8 VILL. L. REV. 119 (1962)..................... 21 Pacht, Kuehn, Bassett & Nash, The Current Status of the Psychologist as an Expert Witness, 4 Prof. Psychol. 409 (1973) ......... 21 Perlin, The Legal Status of the Psychologist in the Courtroom, in T he Role of the Forensic Psy chologist 26 (G. Cooke, ed. 1980) ...................... 21,22 Radin, Cruel Punishment and Respect for Persons: Super Due Process For Death, 53 Cal. L. Rev. 1143 (1980) ....................................................... 6 Rice, The Psychologist as Expert Witness, 16 Am. Psychol. 691 (1961) ............................................. 21 Xlll TABLE OF AUTHORITIES—Continued Page Sadoff, Working with the Forensic Psychologist, in T h e Role of th e F orensic P sychologist 106 (G. Cooke, ed. 1980).........................................— 23 S. Saltzburg & K. Redden, F ederal Rules of E vidence Manual 425 (2d ed. 1977)....--------- 17 Steadman & Cocozza, Psychiatry, Dangerousness and the Repetitively Violent Offender, 69 J. Crim . Law & Criminology 226 (1978)---------- 28 Stigall, Licensing and Certification, in P rofes sional P sychologist's Handbook (B. Sales ed., 1983) - 19 Mo*.Wr9V '!■•?’*{&& stt* I n T he ^uprattP (ttmtrt of tljr Ittitpb Stall's October Term , 1983 No. 83-5424 Glen Burton A r e , v. Petitioner, State of Oklahoma, Respondent. On Writ of Certiorari to the Oklahoma Court of Criminal Appeals BRIEF OF AMICI CURIAE AMERICAN PSYCHOLOGICAL ASSOCIATION AND OKLAHOMA PSYCHOLOGICAL ASSOCIATION IN SUPPORT OF PETITIONER INTEREST OF AMICI The American Psychological Association (APA), a non profit scientific and professional organization founded in 1892, is the major association of psychologists in the United States. The APA has more than 55,000 members and includes the vast m ajority of psychologists holding doctoral degrees from accredited universities in the United States. 2 A substantial number of APA’s members are concerned with clinical and forensic psychology, including the col lection of data, development of research, and evaluation of the state of mind of criminal offenders. The Oklahoma Psychological Association (OPA) is a nonprofit, scientific, and professional organization that was founded in -1946 for the purpose of advancingHshe science and profession of psychology and to promote hu man welfare. I t represents the majority of psychologists in Oklahoma and is affiliated formally with the APA. Psychologists in Oklahoma come from accredited uni versities across the United States. Their work encom passes basic and applied research, teaching, and a myriad of mental health services to hospitals, courts, clinics, schools, and the community a t large. Many of Oklahoma’s psychologists offer expert testimony in court proceedings where the person’s mental or emotional state is an issue. An even larger number are involved in the study, diag nosis, and treatment of mental and emotional disorders and the effects of such disorders on human behavior. In this way, Oklahoma psychologists, like psychologists nationally, bring unique qualifications to m atters bear ing on the case at hand. Because this case originated in Oklahoma, and because Oklahoma psychologists are com mitted to the promotion of public welfare, OPA, repre senting psychology in Oklahoma, joins the APA as co- amicus. Amici wish to specify that they have no direct knowl edge of the guilt, innocence, sanity, or insanity of the defendant in this case, and tha t they in no way, implied or otherwise, condone the heinous nature of the crimes involved. Their interest as amici is in providing informa tion which it is hoped will be helpful to the Court in its consideration of the questions being addressed. The APA contributes amicus briefs to this Court only where the APA has special knowledge to share with the 3 Court. The APA regards this as one of those cases. In this instance, the APA and OPA wish to inform the Court about the nature of psychological evaluations and the need for and uses of expert testimony in insanity de fense proceedings. APA and OPA believe that this in formation will be of assistance to the Court in deciding this cas6. — ~ SUMMARY OP ARGUMENT This case presents the Court with an important but narrow question. I t is whether due process or other con stitutional guarantees require the state of Oklahoma to provide defendant Ake with the means of securing an expert psychological evaluation of his state of mind a t the time he committed the offense, so that he will have an adequate opportunity to support his claim of insanity and so tha t he can rebut testimony about aggravating cir cumstances presented by state experts. The only question posed by the facts of this case is whether a defendant is entitled to such an evaluation when he is indigent, is charged with a capital crime, has pleaded insanity as his only defense, bears the burden of overcoming a state imposed presumption of sanity, and has been determined by state experts and/or a state court to be mentally ill, dangerous, incompetent to stand trial, in need of psy chiatric treatment, and incapable of determining right from wrong, less than six months after committing the offense. Amici respectfullly suggest tha t this Court need not determine which of these circumstances is either necessary or sufficient for such a requirement, but only tha t all these factors together w arrant imposing on the state the minimal procedural and financial burden of paying for the psychological evaluation and assistance requested. The Court has long recognized the special nature of capital cases and has interpreted the Constitution to require adherence to the highest standards of procedural fairness to minimize the possibility in such cases of er- 4 ( < roneous determinations of criminal responsibility and ex cessive punishments. In this case, there is no doubt tha t the defendant committed the heinous offenses with which he is charged. However, there is serious question whether the defendant had sufficient understanding of the wrong fulness of his offenses to be criminally responsible for them under the laws of Oklahoma. A m ia-subm it th a t fundamental fairness requires the state to provide de fendant Ake an adequate opportunity to establish his in sanity defense. In this case, the insanity defense was Ake’s only de fense. In Oklahoma, the insanity defense is unlike other defenses, in tha t it is an affirmative defense, requiring the defendant to come forward with evidence creating a reasonable doubt about his sanity a t the time of the of fense before the prosecution is required to prove the de fendant’s sanity. Defendant was unable to sustain that burden without a psychological evaluation. More im portant, less than six months after the offense, Ake had been determined by state experts and by a state court to be mentally ill and incompetent to stand trial. Amici believe these findings indicate an unacceptably high risk of an erroneous determination in this case tha t defendant was sane a t the time of the offense, unless the trie r of fact has the benefit of information which would be pro vided by a psychological evaluation. Amici submit that appropriate psychological evalua tions provide relevant and probative information and opinions long recognized as admissible under federal and state rules of evidence. Although lay witnesses can also testify as to relevant facts and give their opinions about a defendant’s sanity, the detection and diagnosis of men tal disorders and the assessment of facts relevant to mental processes is recognized to be well beyond the com petence of most lay people. Amici believe that the mini- 5 mal procedural burden, delay and expense required to provide indigent, mentally ill defendants in capital cases with psychological evaluations performed by qualified mental health professionals to support their only defense to the charges against them is a small price to pay to maintain the integrity of our criminal process. In^ addition, this Court has consistently held that where a state creates a right, such as the right to plead insanity, the state may not be arb itrary in the recognition of the r ig h t Amici believe that to deny defendant an adequate opportunity to support his plea of insanity, solely because of his indigency, was to arbitrarily and effectively de prive defendant of the benefit of the insanity defense in violation of due process of law and other constitutional guarantees. Finally, amici agree with the weight of professional opinion tha t mental health experts have substantially less ability to predict future behavior than they do to assess current or past mental conditions. Knowing this opinion, this Court nevertheless held in Barefoot v. Estelle, ------ U .S .------ , 51 U.S.L.W. 5189 (1983), that expert predic tions of dangerousness are admissible, even if unreliable, because such testimony will be submitted to cross-examina tion and rebuttal before it is weighed by the jury. In the present case, the state relied on the testimony of two state psychiatrists tha t defendant is likely to be danger ous in the future to support its request for the death penalty. But the state denied defendant the means to effectively cross-examine or rebut such testimony. The rationale of Barefoot surely requires tha t where the state presents such unreliable testimony, the defendant must be provided the means to challenge it. Amici urge the Court to reverse the holding of the Oklahoma Court of Criminal Appeals and to remand this case for a new trial. :**:*<• i 6 ARGUMENT I. DEFENDANT WAS CONSTITUTIONALLY ENTI TLED TO A STATE FINANCED PSYCHOLOGICAL EVALUATION TO GIVE HIM AN ADEQUATE OP PORTUNITY TO SUPPORT HIS INSANITY PLEA. A. Due Process Requires that a Defendant be Pro vided a Psychological Evaluation of his State of Mind at the Time of the Offense Where the Defend ant (1) Is Charged With a Capital Offense; (2) Has Pleaded Insanity as his Only Defense; (3) Bears the Burden of Overcoming a State Imposed Pre sumption of Sanity; (4) Has Been Determined by State Experts and/or a State Court to be Men tally 111, Dangerous, Incompetent and Incapable of Telling Right from Wrong, Less Than Six Months After the Offense; and (5) Is Indigent. 1. The Constitution Requires the Highest Stand ards of Procedural Fairness in Capital Cases to Minimize the Possibility of Erroneous Deter minations. At least since 1932, when Powell v. Alabama, 287 U.S. 45, 71 (1932) was decided, this Court has consistently ruled that “death is different,” and tha t the profound difference between death and all other punishments gives rise to a corresponding difference in the procedural re quirements that must be met before a sentence of death can be imposed. This rule is firmly established.1 Indeed, either in a majority opinion, plurality opinion, concurring opinion, or dissent, every member of this Court has ac knowledged that death is different, and tha t capital cases require heightened procedural protections.* 1 See generally, Not©, A Matter of Life and Dealth: Due Process Protection in Capital Clemency Proceedings, 90 YALE L. J. 889, a t 889-890 and 902-903 (1981); and Radin, Cruel Punishment and Respect for Persons: Super Due Process For Death, 53 Cal. L. Rev. 1143 (1980); and the cases and authorities cited therein. 2 See Eddings v. Oklahoma, 455 U.S. 104 (1982) (O’Connor, J.) ; Gardner v. Florida, 430 U.S. 349, 357-358 (1976) (Stevens, J.), and 363-364 (White, J . ) ; Lockett v. Ohio, 438 U.S. 586, 605 (1978) 7 In this case, the possibility for error in determining defendant Ake’s criminal responsibility for the admitted homicides increased when the trial court refused to pro vide the defendant with a psychological evaluation of his state of mind a t the time he committed the offense. There was no expert testimony of any kind concerning the de fendant's state of mind a t the time he committed the offense and whether he was capable of knowing the wrongfulness of his act a t that time.* W ithout testimony by expert witnesses, the ju ry was left to its own speculation as to Ake’s state of mind. No witness experienced in assessing factual data related to mental conditions, motivation, and perception, provided the jury with informed opinion as to whether the de fendant’s actions a t the time of the murders were con sistent with an understanding of the wrongfulness of his conduct Nor was there any expert testimony regard ing the effect of drugs and alcohol on his mental processes or his likely perception of the situation in which the murders were committed. (Burger, C. J . ) ; Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (Powell & Stevens, J J .) , and 823 (Rehnquiat, J . ) ; Furman v. Georgia, 408 U.S. 238, 286-91 (1972) (Brennan, J .), and 358-360 (Marshall, J . ) ; Evans v. Bennett, 440 U.S. 1301, 1306 (1979) (Rehnquist, Circuit Justice); Barefoot v. Estelle,----- U .S .------, 51 U.S.L.W. 6189, 5198 (1983) (Marshall & Brennan, J.J.), 5202 (Blackmun, Brennan & Marshall, J .J .) ; and Strickland v. Wash ington, ----- U .S.-------. 62 U.S.L.W. 4565, 4570 (1984) (O’Connor, J.), 4575 (Brennan, J .), and 4578 (Marshall, J.). * Under Oklahoma law, culpability does not attach to the commis sion of an. offense where the perpetrator a t the time of the offense was "incapable of knowing" the wrongfulness of the act he com mitted. Okla. Stat. t i t 21, i§ 152 (1983). Each of the three experts who interviewed Ake prior to his trial testified that he had not been asked to evaluate Ake’s state of mind a t the time of the offense, had not done so, and therefore had no opinion on that issue. 8 2. The Possibility of an Erroneous Determination of Criminal Responsibility JVaa Unacceptably High Where the Defendant Was Denied a Psycho logical Evaluation after He Had Pleaded In sanity and State Experts Had Found Him Men tally III, Less Than Six Months After the Crime. This is not a case in which a defendant asked for a court-appointed psychological evaluation for the purpose of determining whether to plead an insanity defense. Nor is it a case in which the defendant rejected the evaluation of a court-appointed expert and sought an expert of his own choosing. See Sm ith v. Baldi, 344 U.S. 561 (1952). Whether the Constitution requires the pro vision of state financed evaluations to indigent defend ants in such situations are questions for another day. In this case, the question is whether the state must pro vide a psychological evaluation where the defendant has already entered an insanity plea, is indigent and has asked the court to appoint an expert selected by the court. An expert psychological evaluation was necessary in this case to assist the defendant to overcome the pre sumption of sanity imposed by the state. In Oklahoma, as in many other jurisdictions, insanity is an affirmative defense. The defendant bears the burden of overcoming a presumption of sanity by producing sufficient evidence to raise a reasonable doubt as to his sanity a t the time of the offense.4 Only if he meets this burden must the * Okla, Stat. t i t 21, § 1B2 (1983) provides that *‘[a]ll persons are capable of committing crimes, except those belonging to the following classes . . . (4) Lunatics, insane persons and all per sons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that a t the time of committing the act charged against them, they were incapable of knowing its wrong- fulness." The Oklahoma Court of Criminal Appeals has determined that “ [i]n every case there is an initial presumption of sanity. This presumption remains until the defendant raises, by sufficient evidence, a reasonable doubt as to his sanity a t the time of the crime. If the issue is so raised, the burden of proving the defend ant’s sanity beyond a reasonable doubt falls upon the State." Ake v. State, 663 P.2d 1, 10 (Okla. Crim. App. 1983); Rogers v. State, 9 prosecution prove his sanity beyond a reasonable doubt Therefore, access to expert psychological testimony is par ticularly im portant In fact, an expert psychological eval u a tio n may in many cases, like the one a t bar, be the only evidence sufficient to meet this burden. The denial of an evaluation in such a case, then, would relieve the state of the burden of putting on any evidence of de fendant’s sanity and the burden of proving beyond a reasonable doubt tha t the defendant was sane. As this Court has recognized in other contexts, expert psychological assessments of mental conditions are of considerable probative value, and in some situations are indispensible. Addington v. Texas, 441 U.S. 418 (1979) (civil commitment of adu lts); Parham v. J.R., 442 U.S. 584 (1979) (civil commitment of children); Youngberg v. Romeo, 457 U.S. 307 (1982) (right to habilitation as incident to right to safety and freedom from harm ). Some lower federal courts and state courts have recog nized th a t the value of information elicited through psy chological evaluations is so relevant and probative in some situations that failure to secure it amounts to in effective assistance of counsel in violation of the Sixth Amendment. See, e.g., Bush v. McCollum, 231 F. Supp. 660, 565 (N.D. Tex. 1964), aff’d, 344 F.2d 672 (5th Cir. 1965); United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir. 1974) (stressing the “particularly criti cal interrelation between expert psychiatric assistance and minimally effective representation of counsel” ) ; and Springer v. Collins, 444 F. Supp. 1049 (D. Md. 1977). In addition, the statutory laws of many states provide defendants with an evaluation on the issues of criminal responsibility and/or competence to stand trial.* Recently, 634 P.2d 743 (Okla. Crim. App. 1981); Richardson v. State, 669 p.2d 1018 (Okla. Crim. App. 1977). Brief for the Petitioner, Ake v. State, note 17, No. 83-5424, U.S. S. Ct. « Bonnie and Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, VA. L. Rev. 427 (1980). <Vs«l 1”:'- 10 the American Bar Association’s Standing Committee on Association Standards for Criminal Justice recommended in its D raft Criminal Justice Mental Health Standards that The accused’s Sixth Amendment right to effective assistance of counsel justifies the use of a mental health o r mental retardation professional consultant whenever the defense attorney honestly believes tha t the professional’s aid could support a defense claim. For example, in virtually every homicide case, mental states are so important that the assistance of a mental health or mental retardation professional is warranted. A merican Bar Association Standing Committee on Association Standards For Crimi nal Justice, F irst Tentative Draft Criminal Justice Mental Health Standards, Section 7-3.3, Commentary (July 1983) (hereafter “ABA D raft Standards” ).* These decisions, statutes, and standards are based on the underlying conviction that mental health professionals have information and opinions about mental processes that are both relevant and helpful to the trie r of fact in criminal cases. This is particularly true with regard to the increasingly important subjective elements of crime, such as m em rea, diminished capacity, intoxication, and insanity. See generally, Bonnie, supra note 6; Model Penal Code §§ 2.04, 2.08 (Proposed Official Draft, 1962). Under Oklahoma law lay witnesses can give their opinion of a defendant’s sanity if they have a reasonable basis upon which to do so. However, in reality, i t is so unusual for a defendant pleading insanity not to support his plea with expert testimony that even if defendant Ake had put on lay witnesses, the absence of expert testimony could itself have been highly prejudicial. The importance of psyschological evidence on subjective elements of criminal responsibility is well stated by • The draft has not been approved by the House of Delegates or Board of Governors of the ABA, and is not the official policy of Hi a ARA l i Justice F rankfurter in his dissent in Spiith v. Baffle, in which he would have upheld the due process right of a defendant in a capital case to a psychological evaluation by an expert of his choice, in addition to the one provided by the court I t is not for this Court to find a w ant of due process in a conviction for m urder sustained by the highest court of the State merely because a finding that the defendant is sane may raise gravest doubts. But it is our duty under the Fourteenth Amendment to scrutinize the procedure by which the plea of in sanity failed and the defendant’s life became forfeit A denial of adequate opportunity to sustain the plea of im anity is a denial of the safeguard of due proc ess in its historical procedural sense which is within the incontrovertible scope of the Due Process Clause of the Fourteenth Amendment. (Emphasis added) 344 U.S. 561, 570-571 (1952).T Because defendant Ake was required to raise a doubt about his sanity without the benefit of such relevant and probative evaluation, the risk that the ju ry would errone ously find Ake sane was very great. Amici contend it was too great to comport with due process. Whether an indigent defendant in a capital case is automatically entitled to the appointment of a psychologi cal expert when he requests one, without any threshold showing of relevance or necessity, is not a question before this Court. In the case a t bar, when the defendant re quested a psychological expert, he had already pleaded the insanity defense and had been found by state selected experts and by a state court to be mentally ill and in competent to stand tria l only a short time after the offense took place. * The majority in Smith v. Baldi found that where, unlike the case at hand, the court had ordered a psychological evaluation of the defendant’s state of mind at the time of the offense, the defend ant was not entitled to an additional evaluation. No examination or evaluation of the defendant Ake’s state of mind at the time of the offense was made in this case. S*3t yr̂ -r 12 The homicides occurred on October 15, 1979, and the defendant was apprehended in November. His behavior a t arraignm ent in February 1980 was so bizarre that the court sua sponte appointed a psychiatrist to examine him in order to determine his competence to stand trial. Dr William L. Allen examined the defendant on Febru ary 22 to determine his present competence, and un certain as to the proper determination, requested th a t the defendant be transferred to a state hospital for observa tion and testing. The trial judge ordered ^ transfer on March 5, and defendant remained hospitalized until May. On April 1, 1981, Dr. R. D. Garcia, Chief Forensic Psychiatrist a t the state hospital, reported to the court tha t in his opinion, the defendant was incompetent to stand trial. On April 10, 1980, the tria l judge conducted a special hearing on defendant’s competence. A t tha t h e am g r. Garcia and Dr. Allen concurred that the defendant was mentally ill, incompetent to stand trial, and dangerous. In addition, Dr. Allen testified tha t the defendant did not currently have the capacity to determine right from wrong or to appreciate the wrongfulness of his actions. Based on tha t testimony, the Court found defendant Ake to be mentally ill and in need of treatm ent and recom mitted him to the state hospital. On May 22, Dr. Garcia reported th a t the defendant was taking 600 mg. of Tho razine each day and was competent to stand trial so long as he continued to take the medication. Criminal proceedings were reinstated on May 27, 1980. A t the pretrial conference on June 13, defendant’s a t torney requested tha t the court appoint a psychological expert (to be selected by the court) to assist him in presenting his insanity defense, or to provide the de fendant with funds to obtain such assistance. The trial court reluctantly denied this request for state assistance, on the ground th a t such assistance was not authorized by state law. Thus, the trial court was fully informed about 13 state of mind a t the time of his offense, thei defendant’s desire to obtain such an evaluation, and his financial inability to do so. I t is difficult to imagine a more compelling case for the right to a court^appointed psychological expert. The de fendant had confessed to a horrible offense committed immediately; after losing his girlfriend and t^mmafaon of his employment. He had taken a large drugs and alcohol at the time of the offense an d had acted irrationally immediately after the crime in using a credit card issued in the name of the woman he had just murdered to finance his escape. Furthermore, w it nesses had testified that the defendant had had a troubled childhood and a father who had physically abused him. Most compelling of all, within six months of the crimes, when he finally received profession eval«atmns the defendant was found by state psychiatrists to be suffer incr from a psychotic condition diagnosed as paranoid schizophrenia” (more accurately, schizophrenic reaction, paranoid type).* Furthermore, he was found »n»mpetent to assist in his defense and was determined by a t least one psychiatrist to be unable, a t the time of ev^ at‘on; to determine right from wrong. Only after he bad been taking Thorazine for a period of weeks was he foun sufficiently competent to be tried. This evidence certainly supports an inference th a t a t the time of his crime the defendant may also have been psychotic and unable to understand the difference be tween right and wrong. In this case, the risk was very great that, without the benefit of a psychological evalua tion and expert opinion concerning the defendant s state when ho committed the homicides, the jury would • AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATIS TICAL M a n u a l III (3rd ed. 1980). 14 3. Having Created The Right To Plead Insanity, Oklahoma Must Accord Due Process And Other Constitutional Guarantees to those Seeking to Exercise that Right. Although the Constitution has not been interpreted by this Court to prohibit criminal punishment of the insane, Oklahoma, like most other states, provides by statute that persons insane a t the time of the offense will not be criminally punished. Okla. Stat. t i t 21, § 152 (1983). Having created this right, the state may not be arb itrary in the implementation of it* Amici contend tha t by re fusing to provide defendant with a psychological evalua tion, the state effectively denied defendant the defense of insanity solely by reason of his indigency; and tha t such denial in this case was arbitrary and prohibited by due process and other constitutional guarantees. Although this point is discussed in more detail in the brief of petitioner Ake, amici agree that denial of expert assistance because of indigency, a t least in the circum stances of this case, violates those constitutional guaran tees.10 r.-*« *E.g., Logan v. Zimmerman Brush Co., 456 U.S. 422, 428-438 (1982); Wolff v. McDonnell, 418 U.S. 639, 658 (1974); Griffin v. Illinois, 351 U.S. 12, 18 (1955). Cf. Boddie v. Connecticut, 401 U.S. 378 (1971); Hovey v. Elliott, 167 U.S. 409 (1897). Defendant Ake’s interest in life is surely as protected by due process as the property and liberty interests involved in these cases. 10 This Court has made it clear that whether required by due process, equal protection, or the Sixth Amendment guarantee of effective assistance of counsel, the essentials of a fair trial may not be denied solely because of defendant’s poverty. Strickland v. Washington, ------ U.S. ------, 52 U.S.L.W. 4565 (May 14, 1984); Gideon v. Wainwright, 872 U.S. 335 (1963); Griffin v. Illinois, 351 U.S. 12 (1955); Powell v. Alabama, 287 U.S. 45 (1932). The American Bar Association’s Standing Committee on the As sociation Standards for Criminal Justice has recommended that: The right to defend oneself against criminal charges includes an adequate opportunity to explore, through a defense- initiated mental evaluation, the availability of any defense to 15 B. The Information and Opinions Provided by Quali fied Mental Health Professionals are Relevant and Useful to the Trier of Fact. 1. The Factfinder Can Profit from Expert Testi mony Regarding the Nature and Severity of Claimed Psychological Dysfunction and From Informed Estimates of the Defendants Knowl edge, Perception and Motivation a t a Given Time. Experience with the application of the insanity defense and with individualized sentencing has yielded some con clusions about the appropriate role of mental health ex pertise in the criminal process. I t is true th a t the term “insanity” for the purposes of criminal exculpation is a legal and moral term, not a medical one, and it must be applied by the legal trie r of fact, not by a technical ex pert. Nevertheless, experts play an im portant role in the fact finding process by informing the ultimate decision maker about psychological processes in general, and those of the accused in particular. Mental health professionals use a multitude of tests and techniques to contribute three types of useful in formation to the tr ie r of fact in criminal cases. First, trained mental health professionals can gather facts con- the existence or grade of criminal liability relating to defend ant’s mental condition a t the time of the alleged crime. Ac cordingly, each jurisdiction should make available funds in a reasonable amount to pay for a mental evaluation by a qualified mental health or mental retardation professional selected by defendant in any case involving a defendant financially unable to afford such an evaluation. ABA Draft Standards, supra, note 6 and accompanying text. Ex plaining its position the Committee stated: The indigent defendant’s need for mental health and mental retardation professional assistance are as great as those of wealthy defendants. Paragraph (a) establishes the indigent defendant’s right to obtain this professional assistance a t pub lic expense. ABA Draft Standards, supra note 6 and accom panying text, Section 7-3.3 Commentary. WU*-***̂ *&& ;•&£!» ê r**c.r̂ »i i i jii 16 cerning the relationship between the defendant's claimed psychological dysfunction and his behavior which a lay person might not notice or regard as significant. For instance, a defendant who suffered from acute psycho logical aberration a t the time of an offense will not neces sarily display to the ju ry the symptoms of th a t aber ration, e.g., delusions, hallucinations, disorientation, assaultive behavior or extreme withdrawal.11 Yet in formation about those phenomena can be obtained by a trained professional. Even if the lay person can recog nize in the defendant signs of cognitive or emotional disturbance, professional training or experience often may be required to elicit more detailed information.1* Factual data can be gathered by mental health pro fessionals in several ways. Professional interviews w ith the defendant are, of course, essential.1* In addition^ most clinicians will try to obtain from other people and from written records additional information about the' alleged offense, the subject’s previous antisocial behavior, his general history, and relevant medical and psycho logical history. This information is used to verify in* formation obtained from the accused on these subjects and to obtain information unknown to him. The second kind of information the mental health pro fessional can provide the factfinder is an explanation of the defendant's mental condition which takes into ac count the factual information and symptoms observed. By offering the trie r of fact “clinically reasonable" possi bilities and alternative explanations of the facts, the ex pert provides a framework within which to assemble otherwise unrelated pieces of information. These explana tions put family, psychological, medical and personal history together into a coherent whole. As one com mentator has noted “ [i]f the clinician were not allowed 11 A. Goldstein, The Insanitt Defense 25-26 (1967). 11 Bonnie, supra note 5, a t 459. »*H. Davidson. F orensic P sychiatry 85-62 (2d ed. 1965). 17 to express any inferences or opinions concerning his ob servations, the factfinder would be left with fragments of data that may actually confuse rather than en lighten.” 14 Although some observers fear that juries will place too much confidence in the “scientific" nature of expert testimony and will defer too much to expert opin ion, others believe that lay persons are naturally skeptical of psychiatric explanations and will weigh expert testi mony carefully.1* Under the common law, expert testimony based on third party hearsay information was held to be inadmis sible.1* However, there has been a trend toward relaxa-. tion of this restriction. Rule 703 of the Federal Rules of Evidence now provides that the facts or data upon which an expert bases an opinion need not be admissible “if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 425 (2d ed. 1977). The admission of expert opinions based on hearsay evidence is premised on the belief that mental health professionals are aware of the biased and self-serving nature of some of the in formation they receive, and tha t they are trained to assimilate information from a wide variety of sources, to evaluate each fact, to discount some facts and empha size others, to make their own personal observations and to come to a conclusion.17 Thus, opinion testimony offered 14 Bonnie, supra note 5, a t 491. i* “Because laymen do not deal with abnormal behavior on a day to day basis, their intuitions are skewed in the direction of norma] behavior, and they favor commonsense explanations for departures from the norm. Mental health professionals, on the other hand, deal constantly with abnormal behavior and are trained to consider explanations that do not proceed from commonsense analysis." Bonnie, supra note 5, a t 485. 14 20 Am. Jur. 2d Evidence, § 866.5 (1964); Diamond & Louisell, The Psychiatrist as an Expert Witness; Some Ruminations and Speculations, 63 Mich. L. Rev. 1335,1351-52 (1965). 17 Diamond & Louisell, supra note 16, at 1353. 18/ by psychologists and psychiatrists is generally admissible under the Federal Rules of Evidence and the laws of Oklahoma. ^ Finally, mental health experts can present hypotheses of how the defendant’s psychological dysfunction, if one is found, might have affected the specific conduct in volved in his offense. Increasingly,., courts and com mentators agree that to exclude such professional opin ions and explanations of aberrant psychological function ing would be to exclude an important source of insight and informed opinion and would both prejudice the de fendant and confuse the factfinder.1* See also Federal Rule of Evidence 704.1* 2. Professional Psychologists A re Qualified to Pro vide Forensic Psychological Evaluations and to T estify as E xperts in Criminal Trials. Amici believe that the defendant in this case was en titled to a psychological evaluation of his state of mind at the time of the offense by a qualified mental health expert, and tha t professional psychologists are such quali fied experts. Psychologists, by virtue of their training and experience, the strict evaluation of their credentials by state licensing authorities, and their participation as independent providers of mental health services in fed eral, state, and private third-party reimbursement plans, are recognized as fully qualified to assess and diagnose mental disability and to testify as expert witnesses on general issues such as the reliability of psychological findings, and on the mental condition of a particular person a t the present or in the past. The minimum level of training required for recognition as an independent professional psychologist is the doctoral “ A. Goldstein, T he I nsanity Defense 19 (1967). 1# F ed. R. E vid. 704 states: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fac t” See also, id., Advisory Committee’s Notes, F ed. R. E vid. 403, 701, 703. 19 degree,90 which usually requires four to five years of didactic and field placement experience, with approxi mately three years devoted to coursework, one year to a full time supervised internship a t a clinic, hospital, or other training center, and the completion of dissertation research.*1 To offer services, including evaluations and diagnosis, to the public for a fee as an independent practitioner, all 51 jurisdictions, including Oklahoma, Okla. Stat. t i t 59, § 1351-1375 (1979), require psychologists to be li- sensed or certified.** To further ensure a high quality of professional practice, many states have adopted ethical codes identical or quite similar to the APA’s Ethical Principles of Psychologists, 36 A m . P sychol. 633 (1981). E.g., Okla. Stat. t i t 59, § 1361 (1975). The Ethical Principles deal with a variety of professional and scien tific issues and mandate that psychologists practice only within their areas of expertise and seek consultation when necessary. Recognition of both psychologists and psychiatrists as independent professionals providing mental health serv- 20 APA, Standards for Providers of Psychological Services, 82 Am. Psychol. 495 (1977); Hess, Entry Requirements for Profes sional Practice of Psychology, 32 Am. PSYCHOL. 365 (1977). 21 The basic training model of doctoral programs in professional psychology is the scientist-professional model, i.e., the teaching of the basic science and methods of psychology combined with the theory and techniques of clinical intervention. See generally, APA Criteria for Accreditation of Doctoral Training Programs And I nternships (Jan. 1979). “ Lahman , L icensure Requirements for Psychologists: USA AND Canada (1978); Stigall, Licensing and Certification, in PRO FESSIONAL Psychologist’s H andbook (B. Sales, ed., 1983). Cer tification laws limit the use of the title "psychologist". Licensing laws regulate the use of the title and also define the scope of those activities for which a license is required. E.g., Okla. Stat. tit. 69, § 1362 (1979). State examining boards administering laws regulat ing the practice of psychology also require that applicants pass an examination, either written, oral or both. Id. a t § 1365. 20 II ices on an equal footing is expressed not only in public attitudes but also in federal and state statutory and regulatory law and in private sector practices. See Blue Shield v. McCready, 457 U.S. 465 (1982); Virginia Academy of Clinical Psychologists v. Blue Shield of Vir ginia, 624 F.2d 476 (4th Cir. 1980), cert, denied, 450 U.S. 916 (1981). Most relevant federal statutes require direct Tecognition of “professional" psychologistsas inde pendent health-care providers, i.e., as persons qualified to deliver services without mandatory referral or super vision by a physician.** Almost 40 states, including Okla homa, Okla. S ta t t i t 36 §§ 2652; 6055 (1979), repre senting about 90% of the American population, have enacted laws establishing the direct recognition of psy chological services for reimbursement purposes.** Psychologists have provided information as expert wit nesses in criminal trials since a t least the early 1920’s, i i i ii ** E.g., Federal Employees Compensation A ct 6 U.S.C. § 8101 (2) (1976); Vocational Rehabilitation Act 29 U.S.C. § 728(a)(1) (1976); Health Maintenance Organization Act 42 U.S.C. §S00e-l (1976); 42 C.F.R. §§ 110.101, 110.104 (1980); Disaster Relief Act 42 U.S.C. §5183 (1976); 42 C.F.R. § 38.2(e) (1980); Veterans Health Care Expansion A ct 38 U.S.C. § 613(b) (1976); Compre hensive Employment and Training A ct 29 U.S.C. §§ 801 et seq. (1976); 29 C.F.R. $94.4(bb) (1978). Two notable examples of such programs are the Federal Employee Health Benefits Program, 5 U.S.C. § 8902(k) (1976), Which covers approximately 10 million federal workers and their beneficiaries, and the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), 10 U.S.C. §1071 et seq. (1976); 32 C.F.R. § 199.12(c) (3) (iii) (a) (1981), which covers both inpatient and outpatient services for approximately 7 million dependents of military personnel, retired military personnel, and other beneficiaries. m APA, Recognition and Reimbursement for Psychological Services (1983). In effect these laws allow consumers a "freedom of choice” among state licensed practitioners. The Health Insurance Association of America, which represents more than 300 insurance companies that write approximately 80 percent of all health insur ance contracts issued by United States companies, formally sup ports the introduction of such “freedom of choice” legislation in the remaining states and has endorsed a model statute. 21 but it was not until 1940 that the issue of the admis sibility of psychologists’ testimony was formally addressed by the courts.” Psychologists who are qualified in terms of their edu cation and experience may offer an opinion about the presence or absence of mental disorders and their causal connection with criminal or tortious conduct.” A ma jority of those jurisdictions that have discussed the ad missibility of such testimony trea t psychologists and psychiatrists equally.” The use of expert witness testi mony from psychologists in criminal trials has met with almost unanimous endorsement by commentators.*8 ** See H. Munsterberg, On the W itness Stand : Essays on Psychology and Crime (1908); S. F reud, Psycho-analysis and t h e E stablishment of th e F acts in Legal Proceedings, in 9 T he Complete P sychological W orks of S igmund F reud 103 (std. ed. J. Strachey 1959) (originally published in 1906). ** People v. Hawthorne, 293 Mich. 16, 291 N.W. 205 (1940), Hidden v. Mutual Life Insurance Co., 217 F.2d 818 (4th Cir. 1954), and Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962) (en banc). 17 See Gass, The Psychologist as Expert Witness, 38 Md. L. Rev. 539, Appendix a t 602-621 (1978). Psychological expert testimony has been explicitly accepted in Oklahoma. Rogers v. State, 634 P.2d 743 (Okla. Crim. App. 1981); Carter v. State, 376 P.2d 351 (Okla. Crim. App. 1962). 18 See, Bonnie, supra note 5; Lassen, The Psychologist as an Ex pert Witness in Assessing Mental Disease or Defect, 60 A.B.A. J. 239 (1964); Levine, Psychologist as Expert Witness in “Psychi atric” Questions, 20 Clev. St. L. Rev. 235 (1955); Levitt, The Psychologist: A Neglected Legal Resource, 46 IND. L. J. 82 (1969); Louisell, The Psychologist in Today’s Legal World, 39 Min n . L. Rev. 235 (1955); Nash, Parameters and Distinctiveness of Psycho logical Testimony, 5 P rof. Psychol. 239 (1974); Pacht, Kuehn, Bassett & Nash, The Current Status of the Psychologist as an Ex pert Witness, 4 PROF. Psychol. 409 (1973); Perlin, The Legal Status of the Psychologist in the Courtroom, in T he Role of th e F orensic P sychologist 26-36 (G. Cooke, ed. 1980); Rice, The Psychologist as Expert Witness, 16 Amer. Psychol. 691 (1961); Note, Psychologist’s Diagnosis Regarding Mental Disease or Defect Admissible on Issue of Insanity, 8 ViLL. L. Rev. 119 (1962); Com- i i m . r̂ |l!:;!i|ji'::!\i;piR«;!î !i;i!l 22 One of psychology’s most important contributions to the science of psychological evaluation has been the de velopment, administration, and interpretation of psycho logical tests which measure a variety of factors such as intelligence, personality, and psychopathology.** See gen erally E ig h th M enta l Measurem ents Y earbook (0 . Buros, ed. 1978). Although none of these tests should be used alone or interpreted without reference to the par ticular demographic attributes of the person being tested o r to the setting in which the' tests have been admin-' istered, in the hands of an experienced and well-trained psychologist, they are important supplements to the evalu ation interview.*0 ment, The Psychologist as an Expett Witness, 15 Kan. L. Rev. 88 (1966). There has been criticism that traditional expert testi mony by mental health professionals concerning the prediction of dangerousness is not justified. See, e.g., Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974); Morse, Failed Ex planations and Criminal Responsibility: Experts and the Uncon scious, 68 Va. L. Rev. 971 (1982); Gass, The Psychologist as Ex pert Witness, 38 Md. L. Rev. 539 (1979). Insofar as these critiques argue that experts Bhould not be allowed to utter opinions that are not based on firm scientific evidence or that reveal a “doctrinaire commitment to a preconceived idea,” see, PASE v. Hannon, 506 F. Supp. 831 (N.D. 111. 1980), amtci agree. *• Assessment devices available to the professional psychologist include intelligence scales, paper-and-pencil personality tests, and projective techniques in which ambiguous stimuli are presented to the examinee to tap personality dynamics not always discernible to the lay person or to the examinee him/herself. “ (T]he special as sessment, testing, and intellectual/personality evaluation skills and techniques possessed by clinical psychologists uniquely prepare them for much courtroom work. . . .” Perlin, The Legal Status of the Psychologist in the Courtroom, in T he Role of the F orensic P sychologist 26 (G. Cooke, ed. 1980). Psychological tests are es sentially objective and standardized measures of samples of be havior. A. Anastasi, P sychological Testing (4th ed. 1976). *° “A more objective method of assessing the degree of illness or the veracity of the patient may be through the psychological testing procedure which one cannot effectively fake throughout. Often one will require psychological testing to determine . . . underlying psy chotic process. Occasionally the testing, especially the projective 23 The use of a comprehensive assessment of intelligence and psychopathology is especially important in jurisdic-, tions, like Oklahoma, which use the M’Naghten test or one of its variants. Because that test weighs heavily the cognitive capacity of the defendant, reliance on expert testimony by psychologists, who are specifically trained to assess intellectual ability, may be of crucial significance to the defendant asserting the insanity defense. C. Requiring The State to Provide Indigent Defend ants a Psychological Evaluation would Not Place an Unreasonable Procedural or Financial Burden on the State. Providing an expert mental health evaluation to in digent defendants need not be complex or expensive. Given the limited number of insanity pleas actually raised, and the fact tha t the great majority of states already provide indigent defendants the resources neces sary to obtain expert mental health evaluations upon request,*1 the additional burden placed upon the criminal justice system by this requirement would be minimal. This additional burden is more than outweighed by con siderations of due process and equal protection. 1. The Procedure For Providing Indigent Defend ants An Expert Mental Health Evaluation Need Not be Burdensome. The procedure for providing an indigent defendant with an expert mental health evaluation of his mental condition a t the time of the alleged crime could be testa, will show a psychotic element which does not emerge on clinical examination, especially after one or two interviews. Psycho logical trends and patterns of personality are quite helpful in as sessing an individual in forensic matters and are best determined by the testing procedure." Sadoif, Working with the Forensic Psychologist, in T he Role of the F orensic Psychologist 106, 109 (G. Cooke, ed. 1980). 11 Brief for the Petitioner, Ake v. State, No. 83-5424, U.S. S. Ct. Sat!' ;HI*l*ljVJ|tj«r «i 24 straightforward and efficient. As recommended by the ABA Standing Committee on Association Standards for Criminal Justice, upon belief tha t such an evaluation could support a substantial legal defense, counsel for the defense could move for such an evaluation a t an ex-parte hearing. The court should g rant the motion as a m atter of course unless it determines tha t the motion has fio foundation.**' Should the court determine th a t a mental health evaluation is appropriate, there are several possible mechanisms for providing it. The court may make funds available and permit the defendant to select an expert of his choice. Alternatively, the court could make an appointment from a list of experts in much the same way that indigents are appointed counsel in some jurisdictions. Discretion as to the mode of selection could remain with the states. This Court has determined tha t it is a violation of due process to try a defendant who is incompetent. Drope V. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966). Pursuant to this determination, Okla homa and other states have passed statutes permitting the defendant to move for a competency hearing.” Thus, where the competency of the defendant is in doubt, repetitive evaluations and hearings could be prevented by permitting counsel to move for an expert mental health evaluation of the defendant’s mental condition a t the time of the alleged crime when he or she moves for a competency evaluation and hearing. 2. The Cost of Providing Indigent Defendants an Expert Mental Health Evaluation Would Not Be Unduly High. Despite its high degree of visibility, insanity is not often raised as a defense, and only some of those who plead insanity are indigent defendants. I t is therefore ** ABA, Draft Standards, supra note 6. ” See e.g., Okla. Stafc. t i t 22, § 1175.2 (1979). 25 unlikely that requiring states to provide an expert mental health evaluation for indigents who have pleaded insanity would result in substantial numbers of such requests.*1 If this Court’s holding were restricted to apply only to capital cases, the numbers involved would be even more limited. “ Furthermore, most states already provide indigent de fendants with the resources required to obtain expert mental health evaluations either by statute or by court decision.** Those jurisdictions which provide psychologi cal evaluations to indigent defendants have not found the costs to be excessive. Thus a holding tha t the Constitu tion mandates the provision of such resources would af fect only the handful of states which have not yet extended such protections to their citizens and would not constitute a significant financial burden for those states; The incremental costs to the criminal justice system of requiring these few jurisdictions to provide such pro tections would thus not be high. M Innovative programs for providing expert mental health evalu ations to indigent defendants can insure that the costs remain reasonable. In Virginia, for instance, the state utilizes an existing network of community mental health centers to provide such evalu ations to indigent defendants. Jailed defendants are taken to the centers to be evaluated on an outpatient basis, thereby avoiding more expensive hospitalization. The mental health experts con ducting such evaluations are required to have special training in forensic evaluations, usually provided by the University of Virginia Forensic Evaluation Training and Research Center. The current fee schedule provides for remuneration to the mental health centers in the sum of $100 for competency evaluations, $200 for retrospec tive evaluations of the defendant’s state of mind at the time of the crime, and $200 for a presentencing evaluation. Where the defend ant has already been evaluated once at the time of the presentenc ing evaluation, the fee drops to $100. Reimbursement for testimony a t trial is $50 per day, plus mileage. ANNUAL Report of the University of Virginia F orensic E valuation, Tkaning and Re search Center, 1982. ** Brief for the petitioner Ake v. State, footnotes 15 and 17, No. 83-5424, U.S. S. C t 26 JFT' 1»!T II. WHERE THE STATE HAS RELIED ON EXPERT PREDICTIONS OF DANGEROUSNESS TO ESTAB LISH AGGRAVATING CIRCUMSTANCES SUP PORTING THE DEATH PENALTY, IT MAY NOT DENY AN INDIGENT DEFENDANT THE ASSIST ANCE OF A MENTAL HEALTH PROFESSIONAL TO EFFECTIVELY CROSS-EXAMINE AND RE BUT SUCH TESTIMONY. This case poses the issue explicitly left open by this Court in Barefoot v. Estelle, —— U.S. ——, 61 U.S.L.W. 5189 (July 6, 1983)—whether “despite petitioner’s claim of indigency, the court [may refuse] to provide an expert for petitioner” to present views opposing the state’s psychiatric predictions of dangerousness admitted into evidence to support the death penalty. Id. a t 5194. Amici believe th a t the state may not, consistent with the due process requirements announced in Barefoot, introduce predictions of dangerousness to justify the death penalty and then deny the indigent defendant the means of pre senting opposing expert testimony. In Barefoot and more recently in Strickland v. W ashington,------U.S.------- , 52 U.S.L.W. 4565 (May 14, 1984), the Court relied heavily on the truth-seeking nature of the adversary process to provide criminal defendants a constitutionally guaran teed fa ir trial, and the Court required tha t tha t process be adhered to in sentencing hearings. In this case, the adversary process required providing the petitioner the opportunity to secure at least one opposing expert wit ness, so tha t the state’s “psychiatric testimony predict ing dangerousness [could] be countered not only as erroneous in a particular case but as generally so un reliable that it should be ignored.” Barefoot v. Estelle, 51 U.S.L.W. 6189, 5194 (1983). This Court has recognized th a t “ the qualitative differ ence of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, ------ U.S. ------, 51 U.S.L.W. 5220, 5222 (1983). Pursu- 27 ant to this concern, the Court has undertaken to “pro vide standards for a constitutional death penalty that would serve both goals of measured, consistent applica tion and fairness to the accused.” Eddings v. Oklahoma, 455 U.S. 104 (1982). The Court has ruled that the like lihood of fu ture dangerousness is a constitutionally ac ceptable criterion for imposing the death penalty, Jurek v. Texas, 428 U.S. 262 (1976). Finally, the Court has held that psychiatric predictions of future dangerousness are admissible in evidence, even if unreliable, but only because they are subject to cross-examination and re buttal in the adversary process. Barefoot v. E stelle ,------ U .S .------ , 51 U.S.L.W. 5189, 5194 (1983). Those rulings have been implemented by statute in Oklahoma: “ [u]pon conviction of guilt of a defendant of murder in the first degree, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprison m ent . . . In the sentencing proceeding, evidence may be presented as to any of the aggravating circumstances enumerated in this act.” 21 Okla. Stat. § 701.10 (1983). Among the seven aggravating circumstances listed in the statute is the probability that the defendant would com m it criminal acts of violence that would constitute a con tinuing threat to society. Id. a t § 701.12(7) (1983). In Ake, the trial court conducted the requisite sentenc ing proceeding, as required by statute. At tha t proceed ing, the prosecution put on two expert psychiatric wit nesses who testified tha t the defendant would constitute a continuing threat to society. Counsel for the defense had previously asked the court to appoint an expert for the defendant to help prepare for cross-examination and to rebut the prosecution’s witnesses but his request was denied. A t the close of the proceeding, the ju ry found th a t Ake would probably commit fu ture criminal acts of violence, and he was sentenced to death. , 28 *t*r Amici assert that where, as here, the state has pre sented expert testimony on this issue, denying an in digent defendant access to expert assistance and testi mony necessary to the cross-examination and rebuttal of such witnesses is violative of his rights of due process, and effective assistance of counsel, and is so likely to produce an erroneous sentence as to be-in contravention of the Eighth Amendment In Barefoot, the question presented was whether expert mental health testimony as to a defendant’s future dan gerousness was so unsound as to be likely to produce an erroneous sentence and therefore its admission was violative of the Eighth Amendment Unlike contem poraneous psychological evaluations, or evaluations of an individual’s past mental condition, predictions of future conduct, specifically of dangerousness, are highly unre liable.** Despite documentation of its unreliability, in- ** See e.g., Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974); Ewing, Dr. Death and The Case for an Ethical Ban on Psychiatric and Psychological Predictions of Dangerousness in Capital Sentencing Cases, 8 Au. J. Law & Med. 407 (1983); Kozol, Boucher & Garafolo, The Diagnosis and Treatment of Dangerous ness, 18 Crime & Delinquency 371 (1971); Steadman, & Cocozza, Psychiatry, Dangerousness and the Repetitively Violent Offender, 69 J. Crim . Law & Criminology 226 (1978), Monahan, T he Pre dictions of Violent Behavior; Developments in P sychology and Law, T he Masters Lecture Series: P sychology and th e Law 147 (Scheirer and Hammonds, ed. 1982). Despite this un reliability, however, lay people are likely to display a high degree of deference to the opinions of mental health experts. As Justice Blackmun has acknowledged, ‘‘[t]here is little question that psy chiatrists are perceived by the public as having a special expertise to predict dangerousness, a perception based on psychiatrists’ study of mental disease." Barefoot v. Estelle,----- U.S.------ , 51 U.S.L.W. 5189, 5202 (1983) (dissenting opinion). See also Gass, The Psy chologist as Expert Witness: Science in the Courtroom, 38 Md. L. Rev. 639, 599 (1979) (juries likely to exaggerate the signifi cance of psychological testimony given its "aura of scientific ac curacy"). 29 eluding an Amicus brief filed by the American Psychia tric Association, the Court ruled that testimony predicting fu ture dangerousness can be received in evidence. Jus tice White, writing for the majority, did not hold tha t such testimony was uniformly reliable. Rather, he ex pressed his conviction that the adversary system would provide the factfinder with the information necessary to weigh the testimony and reach the correct result. We are unconvinced . . ., a t least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case. Id. a t 5195. The majority opinion emphasized tha t effective cross examination and rebuttal testimony were essential to the fairness of receiving the state’s expert testimony regard ing fu ture dangerousness. . . . [T]he rules of evidence generally extant a t the federal and state levels anticipate tha t relevant, un privileged evidence should be admitted and its weight left to the fact finder, who would have the benefit of cross examination and contrary evidence by the op posing party. Psychiatric testimony predicting dan gerousness may be countered not only as erroneous in a particular case but as generally so unreliable tha t i t should be ignored . . . [ / ] urors should not be barred from hearing the views of the State’s psy chiatrists along with the opposing views of the de fendant’s doctors” (emphasis added). Id. a t 5194. The majority opinion strongly implied th a t if the trial court had refused to provide an expert for an indigent defendant, so that there could be no “opposing views of the defendant’s doctors,” the Court’s rationale would not support the admission of the state’s expert testimony. The majority noted tha t there was no “contention th a t despite petitioner’s claim of indigence, the court refused to provide an expert for petitioner,” and noted tha t Texas 30 i iiiii i provides up to $500 for the expense of expert witnesses. Id. a t 5194, n. 5. In this case, however, the trial court did refuse the request of an indigent defendant for a mental health expert to assist him. Amici respectfully request th a t the Court extend the holdings of Jurek and Barefoot to their logical conclusion by holding tha t where, a s here, -the-prosecution presents expert testimony as to the defendant’s future dangerous ness a t a capital sentencing hearing, an indigent defend ant is constitutionally entitled to the expert assistance es sential to the integrity of the adversary process in which the reliability of such testimony must be tested. CONCLUSION For the reasons stated above, the judgment of the Oklahoma Court of Criminal Appeals should be reversed and the case remanded for a new trial. Respectfully submitted, Margaret F arrell E wing (Counsel of Record) Donald N. Bersoff Bruce J . E n n is E n n is , F riedman, Bersoff & E wing 1200 Seventeenth Street, N.W. Washington, D.C. 20036 (202) 775-8100 Attorneys for Amici Curiae * June 2,1984 * Counsel acknowledge the able assistance of Jesse G. Kreier, a student a t Georgetown University Law Center, in the preparation of this brief.