What’s on their Minds: Proper Use at Trial of Defendant’s Statements to Court-Appointed Psychologist During a Competency Exam. State v. Harris

Update: On January 22, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On March 11, 2014, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Joseph Harris, 2013-414. The issue in this state’s appeal is whether a psychologist’s trial testimony about a defendant’s feigned mental illness based on statements made during a competence and sanity evaluation is admissible during the state’s case-in-chief.

Case Background

Joseph Harris was charged with Aggravated Murder, Murder, Aggravated Robbery and Having Weapons While Under Disability for shooting a man during a drug deal. Harris entered a plea of Not Guilty by Reason of Insanity (NGRI). The court ordered an evaluation of his mental condition. Harris was found competent to stand trial.

At Harris’ trial, during the state’s case-in-chief, Dr. Carla Dreyer, the court appointed psychologist who performed the competency evaluation, testified that in her expert opinion Harris was feigning or exaggerating symptoms of mental illness in an effort to escape prosecution. The prosecution also called four inmates from the Hamilton County Justice Center, who testified that Harris said he was going to the psychiatric ward to fake being “crazy.”

The jury found Harris guilty of all charges. Harris was sentenced to an aggregate sentence of life without parole, plus sixteen years. The First District Court of Appeals reversed, finding the trial court erred by allowing the testimony of the court appointed psychologist during the state’s case-in-chief. The appeals court found the state’s use of Dr. Dreyer’s testimony about Harris malingering was improper evidence of consciousness of guilt under R.C. 2945.371(J). Read the oral argument preview of the case here.

The Statute

When a defendant enters a plea of not guilty by reason of insanity, R.C. 2945.371 allows the court to order evaluation of the defendant’s mental condition at the time of the offense. R.C. 2945.371(J) bars statements made during that evaluation from use against the defendant for determination of guilt; however, it allows the prosecutor or defense counsel in a criminal action or proceeding to call as a witness any person who evaluated the defendant or prepared a report under this section.

At Oral Argument

State’s Argument

The psychologist’s very limited testimony in the state’s case in chief was totally proper. The only thing Dr. Dreyer testified to was her opinion that Harris was malingering, and that was proper evidence of Harris’ consciousness of guilt.  This was an appropriate comment on his conduct after the crime and after his arrest. There were no statements implicating Harris in the crime, which are the only statements the law excludes. Testifying that the defendant came in and faked answers is not implicating him in the commission of the crime.

The theme of the state’s case was Harris’ manipulation of the system, which affected his credibility and showed consciousness of guilt. The state is always permitted to bring in evidence of consciousness of guilt. Malingering is a permissible comment on consciousness of guilt during the case in chief. The whole purpose of  R.C. 2945.371 is to protect those legitimately being examined, not those gaming the system.

Harris’ Argument

In this case, the evidence of malingering in the state’s case in chief was inappropriate. The only way a psychologist can testify about what was said to her by the defendant in a competency evaluation is to rebut a mental capacity defense. But Harris did not advance such a defense in this case, so the psychologist’s testimony was improper. And that testimony was particularly harmful in this case because there were no eyewitnesses as to exactly what occurred at the shooting.

The statute says no statements can be used against the defendant on the issue of guilt, which is what was done in this case. The prosecution was not offering the psychologist’s testimony on a mental capacity issue, but rather on the issue of guilt.  As this Court made very clear in State v. Cooey, this type of evidence cannot be used except in rebuttal to counter a mental capacity defense.

Subjecting the defendant to a competency exam without counsel being present, and without warning the defendant the examiner’s testimony could be used against him, and turned into a witness for the state raises serious constitutional concerns.

What Was on their Minds

The Significance of the Psychologist’s Testimony

Doesn’t the psychologist’s opinion take away the jury’s determination of credibility, asked Justice Lanzinger, adding that what bothered her was the vouching—the state arguing the psychologist should be allowed to say that in her opinion the defendant wasn’t a person who should be believed?

Wasn’t the psychologist just one more witness in an array of witnesses in the state’s case giving perspective on the defendant’s credibility, asked Chief Justice O’Connor?  Didn’t her statements go to credibility rather than guilt? The content of the interview and the testing was never introduced, just the conclusion that he is a malingerer?  And didn’t the state have other eyewitnesses to what happened? (no, according to defense counsel).  Since the defense received a copy of the examiner’s report, the defense could not have been surprised at her testimony, commented the Chief.

Case-in-Chief or Rebuttal?

In a key exchange of the day, Justice Lanzinger wondered aloud whether the fatal problem was the state raising the issue of credibility, subtly or not, before the defendant has made the choice about whether to testify? Wasn’t this forcing the defendant to take the stand? Wasn’t this why this should only be done in rebuttal? If the defendant had called the psychologist in his case in chief, then could the state have inquired further in rebuttal, she asked later?

When a psychologist comes in and testifies that a person is malingering, isn’t the psychologist calling that person a liar,  and therefore isn’t worthy of belief, asked Justice O’Neill?

Wasn’t the psychologist hired in the first place to determine whether Harris was faking it, asked Chief Justice O’Connor? Later the Chief asked defense counsel right off the bat if she would agree that the psychologist could come in after the defendant had testified? (The Chief was visibly taken aback when Harris’ lawyer answered no, because the statute limits the way the information obtained from this kind of examination can be used. It can only be used in rebuttal to rebut a mental capacity defense. But in this case the defendant did not advance a mental capacity defense so the testimony was improper, period. )

Prejudice to the Defendant

Even if the psychologist’s testimony is allowed under the statute, isn’t there still the danger under the evidence rules that its probative value would be outweighed by its prejudicial effect, asked Justice French? Isn’t that an independent problem?

Didn’t Harris put all of this on the table, and not the prosecutor, asked Chief Justice O’Connor? Isn’t the concern here the timing? Whether it was prejudicial to have someone with the credentials of the psychologist come in right off the bat before the defendant even gets a chance to talk and say the guy is a malingerer ? Even though the cellmates could come and pretty much say the same thing, is it by virtue of who this witness is that causes the prejudice?

The Statute

What part of the statute limited the examiner’s testimony to rebuttal, asked Justice Lanzinger, noting that the statute does allow either side to call the examiner as a witness?

Justice French asked the meaning of the language added to the statute in 1997, stating “in a criminal proceeding a prosecutor or defense counsel may call as a witness any person who evaluated the defendant or who prepared a report pursuant to a referral. ”

The NGRI Plea

The fact that the NGRI plea wasn’t withdrawn until after all the testimony was finished was on everyone’s mind.

At what point was the NGRI plea withdrawn, asked Justice O’Donnell? Was it withdrawn when the psychologist testified? (both parties agreed it had not been) Was the jury given an NGRI instruction? (no) Wouldn’t it be totally appropriate for the psychologist to testify that the defendant did not qualify for an NGRI because in her opinion he was malingering? Is the examiner limited to just a yes or no answer on NGRI? Can’t counsel probe the reasons for any opinion?

Wasn’t the psychologist a permissible witness as long as NGRI was still on the table, asked Justice French?

If the NGRI had gone forward, should the psychologist still not have testified about the malingering, asked Justice O’Neill?

Was the defense saying the psychologist could never testify about whether the defendant was malingering or not? Either in the case in chief or on rebuttal, asked Justice Lanzinger? (answer by defense counsel:  In this case, the evidence of malingering in the state’s case in chief was inappropriate. Nor could it have been offered in rebuttal in this case, but perhaps could be in another case where the defendant offers a mental capacity defense.  She said the same thing earlier in response to a question by the Chief.)

Did the defense have on its witness list an expert of its own who was going to attest to the defendant’s mental state, asked Chief Justice O’Connor? (no).  What about the fact that defense counsel had not taken the NGRI defense off the table during the trial?

Couldn’t the defendant still have raised the NGRI defense in his case, asked Justice French? Based on what he heard in the state’s case in chief?

How it Looks from the Bleachers

 To Professor Bettman

I’m going to call this as a win for the defense, although not unanimously.  In State v. Cooey, in the second syllabus paragraph, the Court was very clear, in interpreting an earlier version of the statute here at issue, that “a defendant’s statements made in the course of a court-ordered psychological examination may be used to refute his assertion of mental incapacity, but may not be used to show that he committed the acts constituting the offense.”

The fact here is that although Harris didn’t withdraw his NGRI plea until very late in the day, it seems clear that at trial he never intended to pursue it.  So since he did not put his mental condition at issue in this case, allowing the psychologist’s testimony in the state’s case in chief will likely be found to be error.

Justice Lanzinger seemed clearest on the inherent prejudice of the psychologist’s testimony in the state’s case in chief here, and at times seemed to be dueling with the Chief on this point.  While an opinion that the Harris was malingering isn’t a direct statement that the psychologist thought he was guilty, it cast a cloud over Harris before he decided whether to testify. It was allowing an expert to say in the state’s case in chief that the defendant was not a person worthy of belief. I think Justice Lanzinger and Justice French saw this the most clearly. And clearly an expert’s opinion in this regard carries far more weight than that of the jailhouse inmates (I doubt any of the justices disagree with that).

While Justice Pfeifer asked no questions at all, I think he and Justice O’Neill will agree that allowing this testimony in the case in chief was improper.  Justice French may also do what she did in State v. Ricks, 2013-Ohio-3712—which is to focus on the violation of Evid. R. 403, and find the prejudicial effect of the examiner’s testimony outweighs its probative value.

Chief Justice O’Connor, joined by Justice O’Donnell, seemed most sympathetic to the state here, and more likely to accept the argument that malingering is a permissible comment on consciousness of guilt during the state’s case in chief. The Chief threw the prosecutor quite a few softball questions, and toward the end of the defense argument sounded like the prosecutor she once was, cross examining defense counsel in a series of staccato questions about the way the whole case came down.

Defense counsel in this case insisted several times that the psychologist’s testimony on malingering should not have been allowed at all in this case—even in rebuttal– because the defendant never put his mental state at issue.  I don’t think any justice is likely to go that far, and will probably say the psychologist’s testimony would have been appropriate in rebuttal in this case.

To Student Contributor Rebecca Campbell

Justices Lanzinger and French both championed protecting the defendant, by focusing early in the State’s argument on how an expert’s testimony cannot impinge upon the jury’s fact finding role, and how the rules of evidence specifically protect a defendant from facing highly prejudicial testimony. Because the primary issue is whether the State can introduce the examiner’s testimony during its case-in-chief, timing of the introduction of evidence was also an important issue to be clarified. Justice Lanzinger directly asked the State whether the fatal problem in Harris is that the introduction came during the case-in-chief, before the defendant had an opportunity to testify, which would ultimately force the defendant to take the stand.  The State primarily advanced its  argument that the testimony was not an admission of guilt, and the defendant opened himself up to the testimony by pleading not guilty by reason of insanity (NGRI); because the psychologist did not directly introduce statements given by the defendant, her testimony was allowed to corroborate lay witnesses, and R.C. 2945.371 allowed introduction of the testimony.

Justice O’Donnell focused on the use of the NGRI defense. Primarily, he wanted to know whether the plea was formally withdrawn, and whether the jury had been given an NGRI instruction. The State clarified the plea was not withdrawn, but no instruction was given. Harris argued that, even though the plea was not formally withdrawn, pre-trial strategy indicated the defense would not be advancing the NGRI defense, therefore foreclosing the State’s need to introduce the psychologist’s testimony at all.

Justice O’Neill focused on competency, and the influence of expert testimony on the jury’s ultimate decision. Specifically, he wanted to know why Dr. Dreyer was even given the opportunity to testify if it was not on the issue of Harris’ competence to stand trial.

Initially, Chief Justice O’Connor focused on the expert’s role in corroborating credibility, giving the State an opportunity to explore the psychologist as one additional witness in a string of witnesses who could testify to the defendant’s credibility. From this, the State advanced an argument that the testimony was admissible during the case-in-chief, because it was conclusory, not sharing the content of the discussion Dr. Dreyer actually had with Harris. Once defense counsel began her argument, the Chief Justice latched on to the fact that no statements made by the defendant were disclosed, proposing there was no admission of guilt presented through the psychologist. The defense countered, arguing the expert’s opinion that Harris was malingering goes directly to guilt, particularly as it was presented in the State’s case-in-chief. The Chief Justice drove a lot of the questions during the Harris argument, firing many fastballs at defense counsel, who did a splendid job maintaining her own argument and getting to the point: the testimony would only be allowed in rebuttal to the NGRI defense, and was inappropriately allowed in Harris’ case.

Ultimately, I think the Court will side with Harris on this argument. The questions from Justices Lanzinger, French, and O’Neill give the impression they’ll side with Harris. Justices Pfeifer and Kennedy did not contribute any questions, but Justice Pfeifer wrote the majority opinion in State v. Goff which has been used to support the assertion statements used during state ordered psychiatric examinations may only be used in rebuttal, so it is likely he will continue to support that argument. I think the Chief Justice may dissent, finding support for the prosecution’s use of Dr. Dreyer based on the content of her testimony (including the lack of direct statements of guilt) and the use of the testimony not as an assertion of guilt but as corroboration of other witnesses’ testimony in conjunction with R.C. 2945.371(J)’s assertion that either the prosecution or the defense may call the examiner as a witness so long as they comply with that section’s requirement that no statement made by the defendant be used against the defendant on the issue of guilt.


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