The United States Supreme Court in Kansas v. Cheever reaffirmed the rule set forth in Buchanan v. Kentucky that the government does not violate a defendant’s Fifth or Sixth Amendment rights by offering testimony from a court ordered psychiatric evaluation to rebut a mental state defense offered by a defendant at trial.

The Court explicitly failed to address a number of important issues including the scope of this evaluation and consequent rebuttal testimony. Additionally, the propriety of such an evaluation and its scope in the first instance was not addressed in Cheever. Numerous states have enacted statutes governing government initiated mental status evaluations of criminal defendants pretrial. However, the existence of these statutes and their corresponding case law does not mean that these statutes pass constitutional muster.

While Kansas v. Cheever does not explicitly describe the constitutional limits of government initiated evaluations, Justice Sotomayor very clearly stated that court-ordered psychiatric evaluations are admissible “only for a limited rebuttal purpose” and nothing suggests, for example, that a defendant “opens the door to admission of psychiatric evidence on future dangerousness by raising an insanity defense at the guilt stage of the trial.”

We must be vigilant in protecting our clients from unnecessary and unconstitutional government initiated mental status evaluations. If the government notices or requests a psychiatric or psychological evaluation of your client, you, as counsel must request a hearing in which to litigate the propriety and scope of that evaluation. Your goal should be to prevent the evaluation from occurring but if it is to occur to limit its scope as much as possible. There are surely situations where it would be unconstitutional for the court to order an evaluation at all, for example if the defense does not intend to offer a mental state defense or when it can be shown that the prosecution is simply on a fishing expedition or the evaluation is to serve as a surrogate interrogation when your client has previously invoked his right to remain silent. It would also be inappropriate for a court to permit a mental health evaluator to conduct an evaluation when it is clear that he or she is partial and/or predisposed to come to a particular conclusion.  Maldonado 53 Cal.4th 1112 (2012).

Furthermore, there may be situations where it is appropriate for the defendant to refuse to participate in a court ordered mental status evaluation. Such a decision is dependent on the nature of the particular order by the court and the rules of your jurisdiction. The United States Supreme Court has yet to decide whether statements obtained during such an evaluation may be used to impeach a defendant who testifies but who does not offer a mental state defense at trial.

During the hearing on the scope of the evaluation the court should rule on the timing of the evaluation and its scope including the proper subjects of inquiry, improper subjects of inquiry, and what tests, if any may be administered. For example, it may be inappropriate for the evaluator to ask any offense-specific questions when conducting a sanity evaluation Traywicks v. Oklahoma, 927 P.2d 1062 (Okla.Crim.App.1996) where the court held he State needs the mental health evidence to rebut the insanity defense, and it seems logical that raising that defense waives the defendant's right to silence as to those mental health issues. However, evidence of the crime itself is a distinct and different question from the issue of mental illness. Accordingly, the defendant retains the right to assert his Fifth Amendment privilege as to the details of the crime. Of course, the defendant could waive his privilege to remain silent as to the details of the crime, but that waiver would have to be done knowingly and voluntarily after the administration of Miranda warnings., conduct personality testing when the only issue in the case is defendant’s drug use United States v. Taylor, 320 F.Supp.2d 790 (N.D. Ind. 2004) (See also Centeno v. Superior Court, 117 Cal.App.4th 30, 11 Cal.Rptr.3d 533 (2004), where the court held that a defendant who tenders his mental condition as an issue waives his Fifth Amendment right against self-incrimination to the extent necessary to permit a proper examination of that condition, “[o]therwise, there is a danger that defendants will be improperly subjected to mental examinations beyond the scope of the precise issue they have tendered and their resulting waiver of constitutional rights.” or offer a diagnosis of anti-social personality disorder when the defense intends only to offer evidence that the defendant has borderline intellectual deficits. U.S. v. Williams,731 F.Supp.2d 1012 (D. Hawaii 2010), See U.S. v. Johnson, 383 F.Supp.2d 1145 (N.D.Iowa,2005) for a comprehensive discussion of state and federal law on the scope of government initiated mental status evaluations. The court must determine whether the evaluation may occur pretrial or whether to defer ruling until the defense actually presents the mental state evidence in trial. It is becoming increasingly common for courts to order these evaluations pretrial. Therefore counsel must be prepared to litigate these issues significantly before trial commences.

The scope of rebuttal will be governed by the information obtained during the evaluation conducted by the government appointed expert and by the evidence of mental state you intend to offer at trial. Consequently, it is very important to formulate a specific referral question that narrowly focused and addresses only the issue relevant to your case. Any testing conducted by this evaluator should also be strictly limited to those tests necessary to answer the referral question.

Specific areas of inquiry or tests proposed by government experts may be beyond the scope of the defense proposed testimony. Counsel may also object to certain proposed tests on the grounds that the test has not been proved to be generally reliable or alternatively not reliable for the purpose being used in your case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The requested order should be explicit and comprehensive so that it covers any issue that might arise during the evaluation. Commonwealth v. Baldwin, 426 Mass. 105, 686 N.E.2d 1001, 1005 (1997)

You may request the court order the evaluator to permit you to be present during the evaluation. Typically this must be done in a fashion that does not compromise the evaluation. As an alternative, you might request the evaluation be recorded. United States v. Byers, 740 F.2d 1104, 1172 (D.C.Cir.1984)

In addition to litigating the scope of the evaluation, it is important to litigate who will be given access to the results of the evaluation and when. In federal court taint team lawyers are routinely employed to protect privileged information from dissemination to prosecutors involved in the prosecution and presentation of evidence at trial. Taint team lawyers are lawyers who are not involved in the trial of the case but tasked only with litigating issues surrounding the mental status evaluations. Another alternative to a taint team is for the report prepared by the government expert to be provided only to the court and defense counsel until such time as the defense presents its mental state evidence in trial. This may or may not be practical depending upon the scheduling of the case and whether there will be planned breaks taken during the trial or between the various phases of a trial.

If the prosecution is given access to the report pretrial, it is very important to ensure the government does not use any information obtained in connection with the evaluation to discover or present evidence against your client at trial. Gibbs v. Frank 387 F.3d 268, 274 (3rd Cir. 2004) In other words, counsel must object and request a hearing if the prosecution offers evidence that was obtained as a fruit of the government initiated mental status evaluation. Counsel should insist the court hold a hearing to determine the source of such evidence if this type of violation is suspected.

In conclusion, while the prosecution may offer evidence of a government initiated mental status evaluation to rebut defense mental state testimony, the scope of such an evaluation must be strictly limited. It is counsel’s duty and obligation to litigate issues surrounding the evaluation and if the court orders an evaluation, it is your obligation to ensure that your client’s 5th and 6th Amendments rights are not violated.