On Sept. 26, 2010, Shane Gulleman was shot to death while attempting to buy drugs in Cincinnati, Ohio. He was found slumped in the driver's seat of his vehicle with eight gunshot wounds on his right side. His own gun — a realistic-looking pellet gun — and $210 in cash were also in the car. Although there were no witnesses to the shooting, two people saw Joseph Harris and another man running from the scene after the shots were fired. Ultimately, Harris was charged with Gulleman's murder.
Harris entered a plea of not guilty by reason of insanity and argued that he was not competent to stand trial. Under Ohio law, this authorized the court to order Harris to undergo competency and insanity examinations by a court-appointed psychologist. Based on the psychologist's report, the court concluded that Harris was competent to stand trial and the case proceeded to trial before a jury.
Before Harris submitted any evidence in his own defense, the psychologist testified that Harris "was malingering both cognitive and psychiatric difficulties" and "basically making up or exaggerating already existing symptoms to seem worse than they are" during the competence and insanity assessments. The prosecution also presented testimony from inmate informants who claimed that Harris admitted he was going to fake a mental illness.
In his defense, Harris testified that he did enter Gulleman's car to sell him drugs, but when he believed he saw Gulleman reaching for a gun, he shot Gulleman and fled the scene. He did not claim that he was legally insane at the time of the shooting.
The jury found Harris guilty, and he was sentenced to life without the possibility of parole. Ohio's First District Court of Appeals concluded, however, that Harris's due process rights were violated when the trial court allowed the jury to consider the psychologist's testimony about malingering. In support of this conclusion, the Court of Appeals cited Ohio Revised Code 2945.371(J), which prevents statements made by the defendant during this type of court-ordered evaluation from being used "on the issue of guilt in any criminal action or proceeding." The Supreme Court of Ohio is considering the case at the time of this writing.
Harris's case raises legal questions about the fairness of allowing a psychologist to testify that a defendant malingered during a court-ordered evaluation. Although it is permissible to present such testimony to refute an insanity defense (State v. Cooey, 1989), here that defense was never offered. Thus, the Court of Appeals concluded that the psychologist's testimony necessarily related to Harris's knowledge of his guilt and his credibility, and therefore it should not have been allowed (State v. Harris, 2013-Ohio-349). According to the prosecution, however, the purpose of the rule excluding these statements is to protect the rights of people who legitimately raise an insanity defense, not people who try to mislead authorities by malingering.
The case also raises questions about psychologists' ability to comment reliably on the truthfulness of a particular client. A number of well-documented problems — such as the shortcomings of certain assessment tools, cultural variables, the presence of pathology that influences responses and biases — can contribute to false attributions of malingering in forensic evaluations (Meehan, Drob & Waxman, 2009). A finding of malingering is arguably based on judgments about motives, intentions and the influence of context on behavior, rather than the type of assessments that are more common in clinical practice.
Though the result may seem odd, the Ohio Supreme Court may conclude that the jury should not have heard evidence that Harris tried to mislead the psychologist who assessed his competence and sanity.
