Trial Matters

Evidence: In general

• At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant’s sanity or insanity at the time at which the defendant is alleged to have committed the offense charged in the indictment or information.

IC 35-36-2-2(a)

• The evidence which may be admitted when an insanity defense is interposed is not limited only to past conduct, behavior, or events.

Gregory v. State, 540 N.E.2d 585, 591 (Ind. 1989)

• [A]s a general proposition Indiana has long held that a defendant may not submit evidence relating to mental disease or defect except through an insanity defense.

Marley v. State, 747 N.E.2d 1123, 1128 (Ind. 2001)

Weedman v. State, 21 N.E.3d 873, 883-84 (Ind. Ct. App. 2014), trans. denied(quoting Marley v. State, 747 N.E.2d 1123, 1128 (Ind. 2001))

Ankney v. State, 825 N.E.2d 965, 970 (Ind. Ct. App. 2005), trans. denied(quoting Marley v. State, 747 N.E.2d 1123, 1128 (Ind. 2001))

Evidence: The “open the door” effect of pleading the insanity defense

• A plea of insanity opens the door for the admission of testimony about the defendant’s entire life.

Shepherd v. State, 547 N.E.2d 839, 841 (Ind. 1989)(citing Lock v. State, 403 N.E.2d 1360, 1366 (Ind. 1980))

See Lock v. State, 403 N.E.2d 1360, 1366 (Ind. 1980)(“A plea of insanity opens up all the defendant’s life for examination.”)

• Evidence which might otherwise be inadmissible becomes admissible when there is a question as to the accused’s sanity.

Shepherd v. State, 547 N.E.2d 839, 841 (Ind. 1989)

• Even evidence which is otherwise incompetent or immaterial may be admitted to show the mental state of the defendant.

Wood v. State, 512 N.E.2d 1094, 1098 (Ind. 1987)(citing Twomey v. State, 267 N.E.2d 176, 179 (Ind. 1971), reh’g denied)

• Any evidence, remote though it may be, which has a logical relevance to the defendant’s sanity, is admissible on that issue.

Shepherd v. State, 547 N.E.2d 839, 841 (Ind. 1989)

See Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002)(citing Garner v. State, 704 N.E.2d 1011, 1014 (Ind. 1998))(“It is true that when the defense of insanity is raised, otherwise inadmissible evidence may be admitted. However, to fall within this doctrine, otherwise inadmissible evidence must be relevant to the mental state of the defendant.”)

See also Tabor v. State, 461 N.E.2d 118, 123 (Ind. 1984)(quoting Smith v. State, 432 N.E.2d 1363, 1371 (Ind. 1982))(“‘It is well settled in Indiana that when a defendant raises the defense of insanity, the general rule is that there is great latitude in admitting evidence of other conduct of the defendant, limited to the extent that such conduct must be relevant to the issue of insanity.’”)

• The remoteness in time and the difference in the factual settings are all matters to be weighed by the jury.

Shepherd v. State, 547 N.E.2d 839, 841 (Ind. 1989)(citing Miller v. State, 518 N.E.2d 794, 796 (Ind. 1988), reh’g denied)

Evidence: Prior criminal conduct

• A plea of not guilty by reason of insanity opens the door for evidence of past behavior, including prior criminal conduct.

Bobbitt v. State, 361 N.E.2d 1193, 1198 (Ind. 1977)(citing Whitten v. State, 333 N.E.2d 86, 90 (Ind. 1975))

See Barnes v. State, 330 N.E.2d 743, 746 (Ind. 1975)(citations omitted)(“The general rule is that in a prosecution for a particular crime evidence of other crimes committed by the defendant independently of the offense for which he is on trial is irrelevant and therefore inadmissible. However, there are numerous exceptions to this general rule. One of these well-established exceptions is that if insanity is an issue in a criminal cause, evidence of relevant acts and conduct during the life of the defendant are admissible for the purpose of determining defendant’s sanity.”)

See also Stacks v. State, 372 N.E.2d 1201, 1209 (Ind. Ct. App. 1978), reh’g denied(citing Whitten v. State, 333 N.E.2d 86, 90 (Ind. 1975))((“[I]f insanity is an issue in a criminal prosecution, all relevant evidence of the defendant’s past behavior, including his past criminal behavior, is admissible for the purpose of determining his sanity.”)

See also Evans v. State, 563 N.E.2d 1251, 1261 (Ind. 1990), reh’g denied(“[A]ll relevant evidence is deemed admissible including [the defendant’s] past criminal conduct.”)

Evidence: Prior convictions

• The State was permitted, over [the defendant’s] objection, to ask [the defendant] whether he had ever been convicted of illegal possession of firearms. [The defendant] argues that for impeachment purposes, the only prior convictions which are admissible are those involving dishonesty or false statement, and for those crimes which by statute would have rendered a witness incompetent. This contention has no merit in a case in which a defendant has raised the defense of insanity. “‘We have held on numerous occasions that when the [defendant] enters a plea of not guilty by reason of insanity, he opens wide the door to all evidence relating to his past behavior and his environment including prior commission of crimes.’”

Resnover v. State, 342 N.E.2d 838, 843 (Ind. 1976)(quoting Riggs v. State, 342 N.E.2d 838, 843 (Ind. 1976)(quoting Stamper v. State, 294 N.E.2d 609, 612 (Ind. 1973), reh’g denied))(emphasis added)

Evidence: Exceptions to the “open the door” effect of pleading the insanity defense

• We have not in the past considered the effect of an insanity plea on an evidentiary privilege. We now hold that such a plea does not ‘open the door’ to privileged matter, although a defendant may waive a privilege by himself introducing evidence falling within that privilege.

Stevens v. State, 354 N.E.2d 727, 734 (Ind. 1976), aff’d on reh’g

• Although it is correct that “[a] plea of insanity opens the door for the admission of testimony about the defendant’s entire life,” raising the insanity defense does not allow the admission into evidence of testimony obtained in violation of a defendant’s Miranda rights.

Robinette v. State, 741 N.E.2d 1162, 1166 (Ind. 2001)(quoting Shepherd v. State, 547 N.E.2d 839, 841 (Ind.1989))

Evidence: Waiver of the doctor-patient privilege

• This court has repeatedly held that a Defendant who pleads not guilty by reason of insanity waives the doctor-patient privilege as to all physicians who might testify at trial

Phelan v. State, 406 N.E.2d 237, 238 (Ind. 1980)

See Bailey v. State, 346 N.E.2d 741, 745 (Ind. 1976)(citing Lockridge v. State, 338 N.E.2d 275, 282 (Ind. 1975))(“The doctor-patient privilege which would preclude the testimony of these and other physicians is waived when a plea of not guilty by reason of insanity is entered.”)

Evidence: Demeanor of the defendant

• Demeanor evidence requires the trier of fact to infer what the defendant was thinking based on his or her conduct. The trier of fact uses its common knowledge of what is normal and what is abnormal to make these inferences. But insanity is not limited to the stereotypical view of a “raging lunatic”—a person experiencing a psychotic delusion may appear normal to passersby.

Galloway v. State, 938 N.E.2d 699, 713-14 (Ind. 2010), reh’g denied

• We have recognized the importance of demeanor evidence in insanity cases. Demeanor is useful because a defendant’s “behavior before, during, and after a crime may be more indicative of actual mental health at [the] time of the crime than mental exams conducted weeks or months later.”

Galloway v. State, 938 N.E.2d 699, 712 (Ind. 2010), reh’g denied(quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004))

• Demeanor evidence may be most useful where there is some indication that the defendant is feigning mental illness and insanity.

Galloway v. State, 938 N.E.2d 699, 712 (Ind. 2010), reh’g denied(quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004))

• Although demeanor evidence often is useful, there are limits to its probative value.

Galloway v. State, 938 N.E.2d 699, 713 (Ind. 2010), reh’g denied

• [D]emeanor evidence is of more limited value when the defendant has a long history of mental illness with psychosis.

Galloway v. State, 938 N.E.2d 699, 713 (Ind. 2010), reh’g denied

• [D]emeanor evidence before and after a crime is of more limited value than the defendant’s demeanor during the crime.

Galloway v. State, 938 N.E.2d 699, 714 (Ind. 2010), reh’g denied

• Although courtroom demeanor is probative as to an insanity defense, it is not dispositive.

State v. Van Orden, 647 N.E.2d 641, 646 (Ind. Ct. App. 1995), trans. denied

• Thus, as a general rule, demeanor evidence must be considered as a whole, in relation to all the other evidence.

Galloway v. State, 938 N.E.2d 699, 713 (Ind. 2010), reh’g denied

Evidence: Medical reports

• Although medical reports containing observations and expert opinions relating to a defendant’s sanity or insanity should not be admitted directly into evidence, they may be used to aid another expert in formulating his opinion as to the defendant’s sanity.

Smith v. State, 285 N.E.2d 275, 275-76 (Ind. 1972), cert. denied, 409 U.S. 1129 (1973)

See Weedman v. State, 416 N.E.2d 1268, 1269 (Ind. 1981)(citing Smith v. State, 285 N.E.2d 275, 275-76 (Ind. 1972), cert. denied, 409 U.S. 1129 (1973))(“[T]he defendant attempted to bring a medical record containing an observation about his sanity or insanity directly into evidence, which we have stated should not be done.”)

Evidence: History of mental illness

• We acknowledge that a mental illness must begin sometime, and the lack of a long-standing history of mental illness should not automatically preclude a finding of insanity. Still, the lack of such history is a circumstance that a fact-finder may consider in evaluating an insanity defense.

Lawson v. State, 966 N.E.2d 1273, 1282 (Ind. Ct. App. 2012), trans. denied

• The fact that [the defendant] was civilly committed almost a year subsequent to the offense is, at most, a circumstance to be considered, in determining whether defendant was legally sane at the time of the offense.

Dunbar v. State, 319 N.E.2d 630, 633-34 (Ind. Ct. App. 1974), reh’g denied

Evidence: Defendant’s failure to cooperate with examiners

• If a defendant does not adequately communicate, participate, and cooperate with the mental health witnesses appointed by the court after being ordered to do so by the court, the defendant may not present as evidence the testimony of any other mental health witness:

(1) with whom the defendant adequately communicated, participated, and cooperated; and

(2) whose opinion is based upon examinations of the defendant;

unless the defendant shows by a preponderance of the evidence that the defendant’s failure to communicate, participate, or cooperate with the mental health witnesses appointed by the court was caused by the defendant’s mental illness.

IC 35-36-2-2(d)

• [I]f a defendant refuses to cooperate with a court-appointed psychiatric expert, the State should seek an order from the trial court compelling the defendant’s cooperation. Thereafter, if the defendant still refuses to cooperate after being warned that his continued refusal could result in the exclusion of the testimony of his psychiatric experts, then the trial court should so exclude the testimony of the defendant’s experts.

Esmond v. State, 20 N.E.3d 213, 217 (Ind. Ct. App. 2014)

See State v. Berryman, 801 N.E.2d 170, 170 (Ind. 2004)(quotation marks omitted)(“Had there been such an order compelling [the defendant’s] cooperation, and a hearing advising him that the testimony of his experts could be excluded if he failed to cooperate with the court-appointed experts, the State would have prevailed on this issue.”)

• [I]f a defendant is, in fact, insane or incompetent to stand trial, such an infirmity may just as likely extend to his seemingly irrational refusal to cooperate as to the anti-social conduct that prompted the criminal charges. The problem obviously has no perfect solution, but since the issue of insanity becomes the most vital issue, if not the only one, in such a case[,] and must ultimately be determined by the jury, it seems that the relevant competent evidence should not be precluded, for whatever reason.

McCall v. State, 408 N.E.2d 1218, 1220 (Ind. 1980)

Testimony of court-appointed examiners: In general

• The individuals appointed under this subsection shall examine the defendant and testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including the testimony of any mental health experts employed by the state or by the defense.

IC 35-36-2-2(b)

IC 35-36-2-2(c)

Testimony of court-appointed examiners: Order of proof

• The meaning of this statute is not in doubt. Court-appointed mental health professionals are to testify after the prosecution and defense have concluded their presentations of evidence. We have held as much since at least 1954, when we stated that “it is the clear intent of the statute that an expert appointed by the court shall not be permitted to testify on the subject of the sanity or insanity of the accused until after the presentation of the evidence of the prosecution and the defense.”

Crawford v. State, 770 N.E.2d 775, 778 (Ind. 2002)(quoting Henderson v. State, 122 N.E.2d 340, 342 (Ind. 1954))

See Palmer v. State, 486 N.E.2d 477, 482 (Ind. 1985)(citing IC 35-36-2-2)(“The statute requires that these witnesses be called following all the evidence presented by the State and by the defendant.”)

• The clear purpose of requiring this particular order of proof is to separate the evidence relating to the substantive crime from that related to the issue of sanity.

Mendenhall v. State, 963 N.E.2d 553, 566 (Ind. Ct. App. 2012), trans. denied(citing Crawford v. State, 770 N.E.2d 775, 778 (Ind. 2002))

Thomas v. State, 486 N.E.2d 531, 533 (Ind. 1985)(“We believe the clear purpose of the statute in requiring this particular order of proof is to separate the evidence relating to the substantive crime from that related to the issue of sanity.”)

Testimony of court-appointed examiners: Exceptions to the order of proof

• [N]either the statute nor case law provides an exception to the mandated witness order in this situation.

Crawford v. State, 770 N.E.2d 775, 779 (Ind. 2002)

Testimony of court-appointed examiners: Reversible error and presenting evidence out of order

• “The mere fact that the evidence presented out of order was not in defendant’s favor is insufficient to make out a case of prejudicial error.”

Phelan v. State, 406 N.E.2d 237, 238 (Ind. 1980)(quoting Blackburn v. State, 291 N.E.2d 686, 689 (Ind. 1973), appeal dismissed, 412 U.S. 925 (1973))

• [F]or an error to be reversible, the [the defendant] must show how his substantial rights were prejudiced, and must do so in the record and in his brief.

Blackburn v. State, 291 N.E.2d 686, 689 (Ind. 1973), appeal dismissed, 412 U.S. 925 (1973)

Testimony of court-appointed examiners: Cross examination and rebuttal

• The mental health witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of a mental health witness.

IC 35-36-2-2(e)

• [T]he court-appointed medical witnesses “may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.”

Mendenhall v. State, 963 N.E.2d 553, 566 (Ind. Ct. App. 2012), trans. denied(quoting IC 35-36-2-2(e))

See Lee v. State, 392 N.E.2d 470, 475 (Ind. 1979)(“[T]he statute expressly authorizes both the prosecution and the accused to present evidence in rebuttal to the testimony of the court-appointed witnesses.”)

• This opportunity for cross-examination and rebuttal evidence “relieves both parties of the burden of having the court-appointed physicians become their witnesses with the result that they would be bound by such testimony.”

Mendenhall v. State, 963 N.E.2d 553, 566 (Ind. Ct. App. 2012), trans. denied(quoting Blackburn v. State, 291 N.E.2d 686, 698 (Ind. 1973), appeal dismissed, 412 U.S. 925 (1973))

Page updated

Google Sites

Report abuse