GEI and Malingering
by: Abassos • January 2, 2012 • no comments
Guilty except insanity (GEI) trials don't happen too often. But when they do you can count on a predictable DA theory: the defendant is faking. The defendant is making up or exaggerating his symptoms to try to get out of real punishment. The argument is a powerful one because there is a widespread cultural belief that defendants commonly pretend to have a mental illness.
The DA is sometimes assisted in this argument by a psychologist who testifies that the scales of some test, like the MMPI, indicate that the defendant is malingering. Here though, the state has gone too far. Testimony regarding the defendant's purported "malingering" is inadmissible. Like the diagnosis of sex abuse in State v. Southard and the polygraph in State v. Brown, there are a variety of reasons why testimony by a psychologist regarding a test for truthfulness is prohibited:
1. It is a comment by a witness on the credibility of another witness
State v. Brown (of "Brown/O'Key" fame) ruled that polygraphs are inadmissible in any civil or criminal trial. Contrary to popular belief, the ruling was not based on the tenous scientific validity of polygraphs. In fact, Brown specifically found that polygraphs were valid scientific evidence. The anathema inherent in polygraph evidence is that it involves one witness testifying about the credibility of another:
"We find no rule or provision in our evidence code or any Oregon evidentiary decision by this court allowing for any witness, lay or expert, whether utilizing scientific equipment or not, to pass upon the credibility of a trial witness."
A polygrapher's testimony is that scientific tests were performed to determine whether the subject was being truthful or not and the results are X.
A psychologists testimony on malingering will be that scientific tests were performed to determine whether the subject was being truthful and the results are X.
We can assume, arguendo, that the MMPI malingering scales (or whatever test the psychologist uses) has a higher level of validity and reliability than a polygraph. It doesn't matter because it's a comment on credibility, regardless of its validity. We don't even need to rely on the polygraph analogy. The court has repeatedly ruled that psychiatric testimony as to the truthfulness of witnesses is inadmissible:
We have said before, and we will say it again, but this time with emphasis - we really mean it - no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. The assessment of credibility is for the trier of fact and not for psychotherapists.
As if this weren't clear enough, there are other bases for inadmissibility.
2. It's a specific instance of conduct under 608(2)
OEC 608(2) expressly prohibits the admission of evidence of specific instances of conduct for the purpose of supporting or attacking a witness's credibility. Like a polygraph, a psychological test or scale for malingering can do no more than assess whether the person is being honest at the time of the test. State v. Brown ruled that a polygraph is prohibited by OEC 608(2) as a specific instance of conduct. There is nothing to distinguish a polygraph test from a psychological test in this regard.
3. It fails the balancing test under OEC 403
The 403 analysis here is exactly the same as in State v. Brown and State v. Southard: the probative value is marginal because the evidence simply assesses credibility, just as the jury is tasked to do and it's prejudicial value is high because the evidence purports to take over the jury's central function of assessing credibility. The risk that the jury will overvalue and misuse the evidence is great:
"Polygraph evidence may well divert the trier of fact from the direct and circumstantial evidence presented in a case to a distorted valuation of the polygraph evidence. Polygraph evidence is not just another form of scientific evidence presented by experts such as ballistics analysis, fingerprint and handwriting comparisons, blood typing and neutron activation analysis. These other tests do not purport to indicate with any degree of certainty that the witness was or was not credible. By its very nature the polygraph purports to measure truthfulness and deception, the very essence of the jury's role."
A psychological test for "malingering" is of exactly the same relevance and carries with it exactly the same potential for misuse and overvaluation as a polygraph.
So, is there something about a GEI trial that is different than other criminal trials that would make the evidence admissible where otherwise it wouldnt' be? There shouldn't be. One could say that the defendant has put his credibility at issue by asserting an affirmative defense. But that wouldn't change anything. It is prohibited for one witness to testify about another witness's credibility. Period. It applies in civil and criminal trials. The defendant's credibility is no more at issue in a GEI trial than in a garden variety "he said-she said" criminal case. The expert can still testify that she doesn't think the defendant is suffering from a mental illness. She just can't testify that she performed a test which shows the defendant was exaggerating or lying.
There is only one case in Oregon remotely on point and it's not terribly illuminating. In State v. Fulmer, the state's expert in a GEI trial testified that he believed that the defendant's inconsistent statements to the police and to him indicated the unlikelihood of either a fixed delusion or an inability to conform conduct. The appellate court did not find that such statements were admissible. In fact, the court reiterated the rule that "In Oregon, no witness may comment on the credibility of another witness". However, the appellate court took the trial court at it's word that it was not using such evidence to determine the defendant's credibility. That, combined with plentiful evidence of the defendant's inconsistent statements, meant that the error was harmless.
If this issue comes up in one of your cases, please let me know. I would like to know about what happens. And OPDS attorney Zack Mazer, who brought this issue to my attention last week, would really like to brief it.
