Mental health evaluations and the Fifth Amendment

This term, the U.S. Supreme Court will consider Kansas v. Cheever, a case that is expected to have important implications for how mental health evaluations are used and performed in criminal trials.

The case began on Jan. 19, 2005, when Scott Cheever was using methamphetamines with several friends at their house. Based on an anonymous tip, the police were on the way to serve Cheever an outstanding warrant. When the police arrived, he shot and killed Greenwood County Sheriff Matthew Samuels. Cheever was charged with capital murder and faced the death penalty.

The course of Cheever's prosecution was complicated. He was originally to be tried in state court, but shortly after his arraignment, the Kansas death penalty statute was found unconstitutional.¹ As a result, prosecutors decided to dismiss the charges in state court and move his trial to federal court under the Federal Death Penalty Act.² During the course of his federal proceedings, the judge ordered Cheever to undergo a compulsory mental health examination because his attorney raised the possibility that he might use a mental disease or defect defense.³ Cheever was evaluated for five and a half hours by a prosecutor-chosen forensic psychiatrist. Subsequently, Cheever's federal proceedings were dismissed when his attorney was unable to continue shortly into jury selection. Finally, capital murder charges were re-filed in Kansas state court.⁴

At Cheever's trial in state court, a doctor of pharmacy testified that Cheever could not form the mens rea (i.e., the mental state necessary to premeditate and intend to kill another) to commit capital murder because he was voluntarily intoxicated due to his current and chronic methamphetamine abuse. To rebut this testimony, the state introduced evidence and expert testimony from Cheever's compulsory mental health examination from the federal court case.

Cheever's attorney objected, claiming that the use of this expert testimony based on a required mental health evaluation in federal court infringed on his Fifth Amendment right against self-incrimination, which he had not waived by offering a mental disease or defect defense in state court. The Fifth Amendment protects defendants from answering questions or offering testimony against themselves, including statements about their mental states made during mental health evaluations. When defendants offer expert testimony about their own mental health at trial, it is assumed they have waived their Fifth Amendment right and prosecution can then use expert testimony to reveal what occurred during their mental health evaluations. The trial court disagreed with Cheever's attorneys' Fifth Amendment objection, allowed expert testimony from the compulsory mental health exam in federal court, and Cheever was subsequently found guilty and sentenced to death.

The Kansas Supreme Court overturned the trial court's decision, ordered a new trial and held that the Fifth Amendment does not prevent a court from ordering a mental health examination of a defendant, if the defendant intends to raise a mental disease or defect defense. So, the federal court was justified in ordering Cheever to participate in a mental health evaluation. Yet, unless the defense actually raises a mental disease or defect defense at trial, the defendant's Fifth Amendment right against self-incrimination is not waived, and the state cannot use the mental health evaluation against the defendant. The Kansas Supreme Court also concluded that a voluntary intoxication defense based on chronic methamphetamine abuse was not a mental disease or defect, and therefore, Cheever did not waive his Fifth Amendment right against self-incrimination by offering expert testimony on this issue at his state trial.

Kansas has appealed the case to the U.S. Supreme Court, which will determine when the Fifth Amendment right against self-incrimination attaches, as well as how and when a defendant may waive that right by raising a mental disease or defect defense. Oral arguments are set for Oct. 16. Psychologists who practice forensic mental health will have to watch this outcome closely to determine how Fifth Amendment rights attach to a compulsory mental health exam.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).

¹ See Kansas v. Marsh, 548 U.S. 163 (2006), and APA Monitor's "Judicial Notebook" (2006, Vol. 37, p. 56) reporting on this decision.

² Federal Death Penalty Act, 18 U.S.C § 3591 et seq. 1994.

³ Cheever's attorneys did not raise such a possibility in either of his Kansas prosecutions because Kansas is one of four states (Idaho, Utah, and Montana are the others) without an insanity defense.

⁴ State v. Cheever, 294 P3d. 1007, 2012.