The 2022 revision of Criminal Law in Oregon is scheduled to release in December. It will be available for preorder soon, in both print and digital formats. This revision contains up-to-date case law and statutory changes that have happened since the 2013 revision was released. We are excited to be offering this new edition in a durable, convenient, and accessible perfect bound format.
The chapter on Mental Illness and Incapacity, authored by Laura Graser, Elizabeth N. Wakefield, and Harris S. Matarazzo, addresses the issue of working with mental health professionals. This post is an excerpt from that chapter, which also covers the guilty except for insanity defense, Psychiatric Security Review Board (PSRB) jurisdiction, civil commitment proceedings, and sex-offender classification. The full chapter is available on the BarBooks online library and will be available as an eBook in December.
Lawyers who work with mental-health professionals must become familiar with both the legal profession’s terminology and the mental-health profession’s terminology about mental illness. The two professions do not always communicate well, and the lawyer should not assume to understand the expert witness merely because the witness is using familiar-sounding words. Similarly, the lawyer should educate the mental-health expert on legal terminology. Even an experienced expert witness, particularly if from out of state, may not be familiar with many practices in the Oregon legal system. The lawyer should not hesitate to discuss points that the lawyer may think are obvious. It is better to give the expert too much information than not enough (with a caveat, described below).
The lawyer should keep in mind that the mental-health professional tends to be oriented toward diagnosis, treatment, and assistance, and is generally trained as a scientist. Although the lawyer may need the professional’s service to determine whether a problem at a particular moment is black or white, some mental-health professionals are inclined to see a problem as fluid, and in shades of gray. Extensive pretrial consultation avoids misunderstanding.
There is an important distinction between an expert witness who will testify and a different expert, one who will not testify—the latter expert is to help counsel understand the scientific evidence. Those experts are not disclosed to the opposition, and they are covered by privilege. This section discusses the duties regarding an expert who will be testifying.
The lawyer may wish to discuss with the hired testifying expert the extent that the hired expert speaks with opposing counsel at all, or speaks only when the lawyer who hired the expert is present when the expert speaks to opposing counsel. The expert’s notes, and probably the emails about the case, will probably be available to the opposing lawyer after the expert has testified on direct examination.
The lawyer should inform the expert about what documents are confidential, or subject to a protective order; the lawyer should instruct the expert about what to do with these documents when the case is over.
Psychiatrists and psychologists who specialize in forensic evaluations will likely use definitions outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association. The DSM has undergone several revisions. See § 15.2-2(b) (discussing the different versions). That reference has a caveat about its use in a forensic setting. It notes that the classifications were designed to be of use to clinicians and researchers, rather than for the courtroom, and it urges caution in the application of the classifications in the legal setting. Diagnostic and Statistical Manual of Mental Disorders 25 (5th ed 2013) (DSM-5).
The lawyer should tell the expert the specific questions the expert should answer. For example, does the lawyer need to know if the accused is competent to stand trial now? Can the accused rationally make the decisions that the accused must make when in court? Could the accused have formed the intent to commit a crime, or to appreciate the criminality of the conduct, or to conform the conduct to the requirements of the law at the time of the charged event? The lawyer may need an opinion on all of these topics, or may wish to limit the expert.
As described below, in many situations reports must be written and filed, and those reports must contain specific information. Although the Oregon-certified expert will be aware of the requirements of the report, it is valuable to speak with the expert about the lawyer’s particular focus.
Ordinarily, the expert should be given all the relevant police reports of the crime, information about prior crimes or bad acts committed by the defendant, and the reports of all the other experts who have evaluated the defendant in the past. The expert can be more helpful if this material is organized in a logical manner, with a focus on the questions that need answers.
If the expert does not have all the information—good and bad—about the defendant, the expert’s opinion is likely to be seriously weakened on cross-examination.
When working with an expert who will testify, and supplying the expert with information, one caveat is that during cross-examination of an expert, the cross-examiner can bring out facts that the expert reviewed, and relied on, to form the opinion. This is true even if those facts would not otherwise be admissible (for example, because they were privileged, or work product), and even if the information was not brought up on direct examination. For example, in State v. Supanchick, 245 Or App 651, 665, 263 P3d 378 (2011), aff’d, 354 Or 737, 323 P3d 231 (2014), the state could ask the defense’s expert on post-traumatic stress disorder about emails from the defendant that were derogatory toward the victim, because the expert partly relied on them in forming his opinion, and the emails were relevant to the defendant’s overall state of mind.
Also, before cross-examination of the expert, the court will permit an opponent to examine all material that the expert used to prepare to testify, including material that would otherwise be privileged. OEC 705 (ORS 40.425).
Practice Tip: For a competency or criminal-responsibility examination, the forensic evaluator must be certified by the Oregon Health Authority. ORS 161.309. A list of certified providers is available at www.oregon.gov/oha/HSD/AMH-FE/Documents/FE-List.pdf. The required content of reports is set forth in OAR 309-090-0025. See https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=1052.
Counsel should verify this certification before using a particular person, and keep in mind that an out-of-state expert may not be certified by Oregon to do certain examinations.
Practice Tip: It is inadvisable for the lawyer to tell any expert who will testify to refrain from writing a report and taking notes, as these actions undercut the expert’s perceived professionalism on cross-examination, and may lead to other sanctions.
Practice Tip: The parties must not wait until trial to disclose underlying reports, data, and other information used by the expert. Attorneys are obligated to follow Oregon’s criminal-discovery statutes. Furthermore, a judge can order a party to disclose the underlying reports, data, and other information used by the expert before trial. If a party is not forthcoming with the information, the opposing side should file a discovery motion and be heard on the issue well before trial.
While OEC 705 (ORS 40.425) allows a party to wait to disclose this material until after the expert testifies on direct, the rule also allows the court to rule otherwise, and potentially to strike some or all of the expert’s testimony. Thus, it may be wise to get a pretrial ruling on the disclosure requirements.
There is an additional complication. The data underlying many standardized psychological tests (such as The Minnesota Multiphasic Personality Inventory (MMPI)) are copyrighted, and the expert is likely using the tests with a license that restricts the expert’s ability to release the underlying data (because—to illustrate—releasing the underlying data in the MMPI would require releasing the copyrighted MMPI questions). The expert will likely be very unwilling to release this information, and there is no clear answer in this area.
If the case is dragging on for some time, it is prudent to check in with the expert periodically, to let the expert know the status of the case.
At the conclusion of the case, it would be a courtesy to let the expert know how the case turned out. Indeed, the expert may not be able to bill (if the expert has been retained by a state agency) until the case is over, so the expert will be particularly interested in knowing the case is over.