Expert testimony on mental state – Virginia criminal lawyer on its limits

Expert testimony on diminished mental capacity – Limited to insanity defenses

Expert testimony often is crucial to criminal defendants, as I have seen many times as a Virginia criminal lawyer. Nonetheless, today the Virginia Court of Appeals confirmed that, in criminal trials, expert testimony on diminished mental capacity are limited to insanity defenses. Johnson v. Virginia, ___ Va. App. ___ (March 5, 2019).

Expert testimony and the Virginia quid pro quo of defense disclosure of such testimony for insanity defenses

In so concluding, Johnson reiterates that:

“By offering expert evidence of his mental state, but refusing to plead insanity, [an] appellant [may] attempt[] to avoid the rules that dictate how such evidence must be disclosed. [An] [a]ppellant essentially wants all the benefits afforded an insanity argument without the associated responsibility for notice to the court required by statute and case law.” Johnson (quoting Schmuhl v. Commonwealth, 69 Va. App. 281, 304 (2018)).

Virginia criminal lawyer on the irrelevance of diminished capacity expert testimony in absence of insanity defense

Put another way: “For the purposes of determining criminal responsibility a perpetrator is either legally insane or sane; there is no sliding scale of insanity… [E]vidence of a criminal defendant’s mental state at the time of the offense is, in the absence of an insanity defense, irrelevant to the issue of guilt.” Johnson (quoting Stamper v. Commonwealth, 228 Va. 707 (1985)).

Virginia limits on expert testimony for diminished capacity defenses do not extend to lay testimony

Consequently, Johnson affirms the trial court’s rejection of expert testimony (through a licensed clinical social worker) at Johnson’s felony fleeing the police trial, to help argue Johnson’s purported diminished mental capacity arising from such factors as recent violent assault by her boyfriend, when she testified that she mistakenly thought that the car chasing her was her boyfriend’s rather than the police.

Johnson confirms the right of the criminal defense to present lay testimony to support diminished mental capacity, but not expert testimony, unless an insanity defense is pursued.

A problem about presenting an insanity defense is that if the defendant is found to be insane, the question becomes how long the defendant will be civilly committed/ detained as a result. For such an alleged crime as the fleeing and eluding in Johnson, it can make more sense to not seek to pursue an insanity defense where the risks of civil incarceration for an insanity finding are too great.

Virginia criminal lawyer Jonathan L. Katz doggedly pursues his clients’ beneficial defenses on the road to obtaining as much victory as possible. To discuss your case with Jon Katz in confidence, please call his staff at 703-383-1100 to schedule a consultation.