“guilty minds - home | princeton universityereading/feb. 9 seminar compressed-1.pdf"guilty...

LAW, PYSCHOANALYSIS, AND IDEAS OF HUMAN AGENCY

Feb. 9, 2011

“GUILTY MINDS”

Bruce Hay Harvard Law School

CONTENTS

page California v. Berry 1

Michigan v. Moran 8

Watson v. United States 27

Morrissette v. United States 33

Criminal Practice Manual (excerpt) 50

Clark v. Arizona 54

Yates v. Texas 89

Notes to seminar participants: (1) Judicial decisions of contain introductory notes summarizing various aspects of the decision, for the convenience of lawyers trying to get a sense of what the case is about. Where possible, I’ve cut most of these notes so that we can focus on the actual writings of the judges. (2) Don’t be put off by the length of the readings; much of it consists of footnotes that can be skimmed quickly.

Feb. 9 Seminar"Guilty Minds" Page 1

Criminal Practice ManualDatabase updated November 2010

PartVI. DefensesChapter

39. Insanity

References

§ 39:2. Standards

• M'Naghten. In the landmark decision of M'Naghten's Case, 8 EngRep 718 (HL 1843), the judges determ-ined that a person could not be held responsible for a criminal act if suffering from a mental defect whichcaused him or her not to know the nature of his or her actions or, if the defendant did understand the qualityof the acts, caused him or her not to comprehend that this was wrong. To this day, the M'Naghten standardserves as the core of most definitions of legal insanity. See, e.g. State v. Hoffman, 328 N.W.2d 709 (Minn.1982); 21 Okla. Stat. § 152; 18 Pa. Cons. Stat. § 315.

• Irresistible Impulse. Irresistible impulse describes the condition whereby the accused is deprived of thepower to choose between right and wrong despite the ability to recognize the distinction. No jurisdiction ap-plies this "test" exclusively, but a number have added an irresistible impulse clause to their M'Naghten pro-visions. See, e.g., Ga. Code § 16-3-3 (a defendant also entitled to acquittal if he or she suffered from "a de-lusional compulsion … which overmastered his [or her] will to resist committing a crime").

• American Law Institute. "A person is not responsible for criminal conduct if at the time of such conduct asa result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of hisconduct or to conform his conduct to the requirements of the law." This test, formulated by the AmericanLaw Institute, is by far the most widely accepted standard for establishing legal insanity. State v. Correra,430 A.2d 1251 (R.I. 1981). It essentially coalesces both the cognitive test of M'Naghten and the volitionalcriteria suggested by the principles of irresistible impulse.

• Durham. The Durham, or "New Hampshire," test places great faith in the testimony of psychiatrists, psy-chologists, and other experts by exculpating an accused when it can be established that the unlawful act wasthe product of a mental defect or illness. State v. Plummer, 117 N.H. 320, 374 A.2d 431 (1977). There is norequirement that the accused be unaware of the illegal nature of the act. This test has fallen out of favor,however, and most jurisdictions, with the exception of New Hampshire, have since rejected it.

• 1984 Insanity Defense Reform Act. Daniel M'Naghten's acquittal on the charge of murdering Prime Minis-ter Peel's secretary initiated a storm of controversy in Victorian England that ultimately led to legislation re-placing the so-called M'Naghten test. The equally notorious acquittal of President Reagan's would-be assas-sin, John Hinckley, provoked similar public outrage that led to reform of the federal insanity defense. Underthe Insanity Defense Reform Act of 1984 (IDRA), the defendant is entitled to acquittal only if "as a result of

CRPMAN § 39:2 Page 12 Crim. Prac. Manual § 39:2

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0000162&FindType=Y&SerialNum=1977102667

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=167819&DocName=CRPMDMYREFCH39&FindType=Y



http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000165&DocName=OKSTT21S152&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000262&DocName=PA18S315&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000468&DocName=GAST16-3-3&FindType=L



a severe mental disease or defect, [he or she] was unable to appreciate the nature and quality or wrongful-ness of his [or her] acts. Mental disease or defect does not otherwise constitute a defense." 18 U.S.C.A. §17(a).

This test is much more rigorous than the traditional standards, eliminating the volitional component of theALI test. No longer can a defendant merely suffering from a mental defect that renders him or her unable toconform conduct to the law be held to be insane. See also Tex. Penal Code § 8.01 (eliminating volitionalelement and limiting defense to cognitive component). Moreover, the Act only countenances "severe" men-tal diseases—as opposed to, presumably, "ordinary" mental diseases.

By eliminating the volitional prong of the old insanity test, Congress eliminated any form of legal excusebased upon legal impairment that does not come within the carefully tailored definition of insanity set out in18 U.S.C.A. § 17. Still, there is disagreement among the circuit courts of appeal over whether psychiatricevidence of mental impairment falling short of insanity can still be introduced to negate specific intent.Some courts have chosen to interpret the new law literally and have concluded that mental disease or defectevidence is inadmissible for purposes other than establishing insanity. U.S. v. Robinson, 804 F Supp 830(W.D. Va. 1992) (holding that mental disease or defect is inadmissible to show diminished capacity); accordU.S. v. White, 766 F.2d 22 (1st Cir. 1985).

Other courts, however, have concluded that Congress must have meant to allow mental disease evidence tonegate specific intent. U.S. v. Brown, 880 F.2d 1012 (9th Cir. 1989) (wherein mental-disease evidence wasused to negate specific intent to commit first-degree murder); see also U.S. v. Cameron, 907 F.2d 1051, 31Fed. R. Evid. Serv. 46 (11th Cir. 1990); U.S. v. Bartlett, 856 F.2d 1071, 27 Fed. R. Evid. Serv. 321 (8th Cir.1988). These courts point out that Congress only intended to eliminate diminished capacity and the like asfull defenses to criminal conduct. Since using psychiatric evidence to controvert mens rea only negates anelement, and does not create a separate defense, it should be admitted.

The key for the defense, it would seem, is to focus heavily on the negation of intent aspect because courtsmay be reluctant to allow post-traumatic stress disorder (PTSD) and other diminished capacity testimony in-to evidence if it seems that the defendant is simply using the diagnosis to construct and inject a diminishedcapacity defense through the back door. For instance, in State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425(Ct. App. 1995), the court rejected defense efforts to use post-traumatic stress disorder testimony relating tothe defendant's "urban psychosis" as evidence that she did not have the requisite specific mental intent tokill. The court distinguished State v. Coogan, 154 Wis. 2d 387, 453 N.W.2d 186 (Ct. App. 1990) (holdingPTSD Vietnam flashback evidence admissible to negate a specific intent to kill) and State v. Richardson,189 Wis. 2d 418, 525 N.W.2d 378 (Ct. App. 1994) (holding battered woman syndrome evidence admissiblein limited situations). In those cases the disorder diagnosis was either used in a way that was relevant to anaccepted defense, for example, self-defense, or to establish a "dissociative state of mind" which led the de-fendant to believe that he or she was authorized to kill.

• Guilty but Mentally Ill. Another reform probably traceable to the Hinckley verdict is the creation of the op-tional verdict "guilty but mentally ill." See, e.g., Mich. Comp. Laws Ann. § 768.36; 18 Pa. Cons. Stat. § 314. These statutes acknowledge that although a defendant may be sufficiently ill to merit treatment, the de-fendant should not necessarily be acquitted as legally insane. In practice, however, it appears that these stat-utes simply encourage juries to effect a compromise between the extreme alternatives of acquitting a crimin-al or incarcerating a madman. With the "guilty but mentally ill" verdict a jury can ease their collective con-




http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000262&DocName=PA18S314&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=18USCAS17&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=18USCAS17&FindType=L&ReferencePositionType=T&ReferencePosition=SP_8b3b0000958a4

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000182&DocName=TXPES8.01&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=18USCAS17&FindType=L














http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000043&DocName=MIST768.36&FindType=L

science by acknowledging that a person is "sick" but, at the same time, not leaving the actions unpunished.After the verdict is returned, the defendant is committed to a hospital facility; upon recovery, the defendantwould be incarcerated.

Although these statutes might appear suspect because they seemingly punish a mentally ill defendant wholacked criminal intent, they nonetheless have survived constitutional attack. People v. Ramsey, 422 Mich.500, 375 N.W.2d 297, 71 A.L.R.4th 661 (1985) (holding that such statute was not violative of due process);Com. v. Sohmer, 519 Pa. 200, 546 A.2d 601 (1988) (holding that the guilty but mentally ill provision notunconstitutional simply because it apparently encourages a jury to vote a compromise verdict).

Some courts have recognized that this new verdict can lead to substantial juror confusion and consequentlyhave held that a defendant claiming mental illness is entitled to an instruction that explains the con-sequences of a not guilty by reason of insanity verdict versus a guilty but mentally ill verdict. Cordova v.People, 817 P.2d 66 (Colo. 1991) (holding the defense entitled to an instruction so the jury does not mis-takenly believe that an insanity verdict will turn the defendant loose); Erdman v. State, 315 Md. 46, 553A.2d 244, 81 A.L.R.4th 645 (1989) (holding that the failure to give the dispositional consequences of theverdict grounds for a new trial); see generally People v. Young, 189 Cal. App. 3d 891, 234 Cal. Rptr. 819(2d Dist. 1987); People v. Thomson, 197 Colo. 232, 591 P.2d 1031 (1979); Roberts v. State, 335 So. 2d 285(Fla. 1976); State v. Babin, 319 So. 2d 367 (La. 1975); Com. v. Mutina, 366 Mass. 810, 323 N.E.2d 294(1975).

The ABA recommended a similar instruction which informs the jury that a not guilty by reason of insanityverdict results in involuntary commitment. ABA Criminal Justice Mental Health Standards 7-6.8 (1989).See N.Y. Crim. Proc. Law § 300.10(3) (the jury must be apprised that if acquitted, a hearing will be conduc-ted and the defendant will be committed to an appropriate facility).

Adherents of the special jury instruction regarding involuntary commitment have argued that such an in-struction is absolutely necessary, particularly in federal court, to cure the common misperception that a de-fendant found not guilty by reason of insanity (NGI) is freed from custody. Arguably, jurors reluctant to un-leash a dangerous crazy person on society will vote to convict even though the defendant is clearly insane.

But in Shannon v. U.S., 512 U.S. 573, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994), the Court rejected this ar-gument, concluding that neither the 1984 Insanity Defense Reform Act nor general federal practice requiresthat a jury be told that a NGI verdict will result in involuntary commitment. Such an instruction may bewarranted in those circumstances where an inaccurate statement of the consequences of a NGI verdict issomehow injected into trial, the Court said, but normally such an instruction will only confuse and distractthe jury from their duties.

• Abolition of the Defense. Some states have in the wake of the Hinckley verdict legislatively abolished theinsanity defense. E.g. Idaho Code § 18-207 (mental condition shall not be a defense to a charge of criminalconduct but such evidence might be admissible on mens rea issue); Mont. Code Ann § 46-14-102; UtahCode § 76-2-305. To date, these statutes have survived constitutional challenges. State v. Searcy, 118 Idaho632, 798 P.2d 914 (1990) (holding that such a statute does not violate state or federal due process); State v.Korell, 213 Mont. 316, 690 P.2d 992 (1984) (holding that abolition of the defense violates neither due pro-cess nor the Eighth Amendment); State v. Cowan, 260 Mont. 510, 861 P.2d 884 (1993) (holding that thestate statute does not constitute an impermissible presumption in violation of due process).




















http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000066&DocName=NYCMS300.10&FindType=L


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000007&DocName=IDSTS18-207&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1002018&DocName=MTST46-14-102&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000511&DocName=UTSTS76-2-305&FindType=L

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000511&DocName=UTSTS76-2-305&FindType=L





In several earlier state decisions, the courts declared unconstitutional statutes which purported to abolish theinsanity defense. E.g. State v. Lange, 168 La. 958, 123 So. 639, 67 A.L.R. 1447 (1929); State v. Strasburg,60 Wash. 106, 110 P. 1020 (1910). In Searcy, however, the Idaho court distinguished this line of vintage au-thority on the ground that those statutes precluded any trial testimony regarding mental condition whichwould have rebutted the state's evidence on the defendant's mens rea. By contrast, the Idaho, Montana, andUtah statutes specifically allow mental condition evidence to rebut mens rea.

Westlaw. © 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

CRPMAN § 39:2

END OF DOCUMENT







2709CLARK v. ARIZONACite as 126 S.Ct. 2709 (2006)

548 U.S. 735

violation depends on whether suppressionis the only remedy available that will effec-tively cure related prejudice. And becauseneither state court applied this standardbelow, I would remand each case for thatinitial consideration. See 338 Ore., at 269,108 P.3d, at 574 (rejecting Sanchez–Lla-mas’ S 398request for suppression remedysolely on the ground that the Convention‘‘does not create rights that individual for-eign nationals may assert in a criminalproceeding’’); App. to Pet. for Cert. 47a(rejecting Bustillo’s request for state post-conviction relief based on a standard dif-ferent from that set forth here).

The interpretation of the Conventionthat I would adopt is consistent with theICJ’s own interpretation and should notimpose significant new burdens upon statecriminal justice systems. America’s legaltraditions have long included detailed rulesfor discovering and curing prejudicial legalerrors. Indeed, many States already have‘‘cause and prejudice’’ exceptions likelybroad enough to provide the ‘‘effective’’relief the Convention demands. And, inany event, it leaves the States free toapply their own judicial remedies in lightof, and bounded by, the Convention’s gen-eral instructions.

The Court, I fear, does not rise to theinterpretive challenge. Rather than seekto apply Article 36’s language and pur-poses to the federal-state relationshipsthat characterize America’s legal system, itsimply rejects the notion that Article 36(2)sets forth any relevant requirement. Thatapproach leaves States free to deny effec-tive relief for Convention violations, de-spite America’s promise to provide justsuch relief. That approach risks weaken-ing respect abroad for the rights of foreignnationals, a respect that America, in 1969,sought to make effective throughout theworld. And it increases the difficultiesfaced by the United States and other na-

tions who would, through binding treaties,strengthen the role that law can play inassuring all citizens, including Americancitizens, fair treatment throughout theworld.

Accordingly, I respectfully dissent.

,

548 U.S. 735, 165 L.Ed.2d 842

Eric Michael CLARK, Petitioner,

v.

ARIZONA.No. 05–5966.

Argued April 19, 2006.

Decided June 29, 2006.

Background: Defendant was convicted, inbench trial, of first-degree murder for kill-ing police officer in line of duty. He appeal-ed. The Court of Appeals of Arizona af-firmed. Certiorari was granted.

Holdings: The Supreme Court, JusticeSouter, held that:

(1) Arizona’s narrowing of its insanity testdid not violate due process, and

(2) exclusion of evidence of mental illnessand incapacity due to mental illness onissue of mens rea did not violate dueprocess.

Affirmed.

Justice Breyer filed opinion concurring inpart and dissenting in part.

Justice Kennedy filed dissenting opinion inwhich Justices Stevens and Ginsburgjoined.


2716 126 SUPREME COURT REPORTER 548 U.S. 741

in which STEVENS and GINSBURG, JJ.,joined, post, p. 2738.

Paul D. Clement, for the United Statesas amicus curiae, by special leave of theCourt, supporting the respondent.

David I. Goldberg, Attorney at Law,Flagstaff, AZ, for petitioner.

Terry Goddard, Attorney General, MaryO’Grady, Solicitor General, Randall M.Howe, Chief Counsel, Counsel of Record,Michael O’Toole, Assistant Attorney Gen-eral, Phoenix, Arizona, for respondent.

For U.S. Supreme Court briefs, see:2006 WL 282168 (Pet.Brief)2006 WL 951124 (Reply.Brief)2006 WL 565617 (Resp.Brief)

Justice SOUTER delivered the opinionof the Court.S 742The case presents two questions:whether due process prohibits Arizona’suse of an insanity test stated solely interms of the capacity to tell whether an actcharged as a crime was right or wrong;and whether Arizona violates due processin restricting consideration of defense evi-dence of mental illness and incapacity toits bearing on a claim of insanity, thuseliminating its significance directly on theissue of the mental element of the crimecharged (known in legal shorthand as themens rea, or guilty mind). We hold thatthere is no violation of due process ineither instance.

S 743IIn the early hours of June 21, 2000,

Officer Jeffrey Moritz of the Flagstaff Po-lice responded in uniform to complaints

that a pickup truck with loud music blaringwas circling a residential block. When helocated the truck, the officer turned on theemergency lights and siren of his markedpatrol car, which prompted petitioner EricClark, the truck’s driver (then 17), to pullover. Officer Moritz got out of the patrolcar and told Clark to stay where he was.Less than a minute later, Clark shot theofficer, who died soon after but not beforecalling the police dispatcher for help.Clark ran away on foot but was arrestedlater that day with gunpowder residue onhis hands; the gun that killed the officerwas found nearby, stuffed into a knit cap.

Clark was charged with first-degreemurder under Ariz.Rev.Stat. Ann. § 13–1105(A)(3) (West Supp.2005) for intention-ally or knowingly killing a law enforcementofficer in the line of duty.1 In March 2001,Clark was found incompetent to stand trialand was committed to a state hospital fortreatment, but two years later the sametrial court found his competence restoredand ordered him to be tried. Clark waivedhis right to a jury, and the case was heardby the court.

At trial, Clark did not contest the shoot-ing and death, but relied on his undisputedparanoid schizophrenia at the time of theincident in denying that he had the specificintent to shoot a law enforcement officeror knowledge that he was doing so, asrequired by the statute. Accordingly, theprosecutor offered circumstantial evidencethat Clark knew Officer Moritz was a lawenforcement officer. The evidence showedthat the officer was in uniform at the time,that he caught S 744up with Clark in amarked police car with emergency lightsand siren going, and that Clark acknowl-

1. Section 13–1105(A)(3) provides that ‘‘[a]person commits first degree murder if TTT[i]ntending or knowing that the person’s con-duct will cause death to a law enforcement

officer, the person causes the death of a lawenforcement officer who is in the line ofduty.’’



548 U.S. 745

edged the symbols of police authority andstopped. The testimony for the prosecu-tion indicated that Clark had intentionallylured an officer to the scene to kill him,having told some people a few weeks be-fore the incident that he wanted to shootpolice officers. At the close of the State’sevidence, the trial court denied Clark’smotion for judgment of acquittal for failureto prove intent to kill a law enforcementofficer or knowledge that Officer Moritzwas a law enforcement officer.

In presenting the defense case, Clarkclaimed mental illness, which he sought tointroduce for two purposes. First, heraised the affirmative defense of insanity,putting the burden on himself to prove byclear and convincing evidence, § 13–502(C)(West 2001), that ‘‘at the time of the com-mission of the criminal act [he] was afflict-ed with a mental disease or defect of suchseverity that [he] did not know the crimi-nal act was wrong,’’ § 13–502(A).2 Second,he aimed to rebut the prosecution’s evi-dence of the requisite mens rea, that hehad acted intentionally or knowingly to killa law enforcement officer. See, e.g., Rec-ord in No. CR 2000–538 (Ariz.Super.Ct.),Doc. 374 (hereinafter Record).S 745The trial court ruled that Clark couldnot rely on evidence bearing on insanity todispute the mens rea. The court cited

State v. Mott, 187 Ariz. 536, 931 P.2d 1046,cert. denied, 520 U.S. 1234, 117 S.Ct. 1832,137 L.Ed.2d 1038 (1997), which ‘‘refused toallow psychiatric testimony to negate spe-cific intent,’’ 187 Ariz., at 541, 931 P.2d, at1051, and held that ‘‘Arizona does not al-low evidence of a defendant’s mental disor-der short of insanity TTT to negate themens rea element of a crime,’’ ibid.3

As to his insanity, then, Clark present-ed testimony from classmates, school offi-cials, and his family describing his increas-ingly bizarre behavior over the year beforethe shooting. Witnesses testified, for ex-ample, that paranoid delusions led Clark torig a fishing line with beads and windchimes at home to alert him to intrusionby invaders, and to keep a bird in hisautomobile to warn of airborne poison.There was lay and expert testimony thatClark thought Flagstaff was populatedwith ‘‘aliens’’ (some impersonating govern-ment agents), the ‘‘aliens’’ were trying tokill him, and bullets were the only way tostop them. A psychiatrist testified thatClark was suffering from paranoid schizo-phrenia with delusions about ‘‘aliens’’ whenhe killed Officer Moritz, and he concludedthat Clark was incapable of luring theofficer or understanding right from wrong

2. Section 13–502(A) provides in full that

‘‘A person may be found guilty except insaneif at the time of the commission of the crim-inal act the person was afflicted with a men-tal disease or defect of such severity that theperson did not know the criminal act waswrong. A mental disease or defect constitut-ing legal insanity is an affirmative defense.Mental disease or defect does not includedisorders that result from acute voluntary in-toxication or withdrawal from alcohol ordrugs, character defects, psychosexual disor-ders or impulse control disorders. Condi-tions that do not constitute legal insanity in-clude but are not limited to momentary,temporary conditions arising from the pres-

sure of the circumstances, moral decadence,depravity or passion growing out of anger,jealousy, revenge, hatred or other motives ina person who does not suffer from a mentaldisease or defect or an abnormality that ismanifested only by criminal conduct.’’

A defendant found ‘‘guilty except insane’’ iscommitted to a state mental-health facility fortreatment. See § 13–502(D).

3. The trial court permitted Clark to introducethis evidence, whether primarily going to in-sanity or lack of intent, ‘‘because it goes to theinsanity issue and because we’re not in frontof a jury.’’ App. 9. It also allowed him tomake an offer of proof as to intent to preservethe issue on appeal. Ibid.



and that he was thus insane at the time ofthe killing. In rebuttal, a psychiatrist forthe State gave his opinion that Clark’sparanoid schizophrenia did not keep himfrom appreciating the wrongfulness of hisconduct, as shown by his actions beforeand after the shooting (such as circling theresidential block with music blaring as if tolure the police to intervene, evading thepolice after the shooting, and hiding thegun).

At the close of the defense case consist-ing of this evidence bearing on mentalillness, the trial court denied Clark’sreSnewed746 motion for a directed verdictgrounded on failure of the prosecution toshow that Clark knew the victim was apolice officer.4 The judge then issued aspecial verdict of first-degree murder, ex-pressly finding that Clark shot and causedthe death of Officer Moritz beyond a rea-sonable doubt and that Clark had notshown that he was insane at the time.The judge noted that though Clark wasindisputably afflicted with paranoid schizo-phrenia at the time of the shooting, themental illness ‘‘did not TTT distort his per-ception of reality so severely that he didnot know his actions were wrong.’’ App.334. For this conclusion, the judge ex-pressly relied on ‘‘the facts of the crime,the evaluations of the experts, [Clark’s]actions and behavior both before and afterthe shooting, and the observations of thosethat knew [Clark].’’ Id., at 333. The sen-tence was life imprisonment without thepossibility of release for 25 years.

Clark moved to vacate the judgment andsentence, arguing, among other things,that Arizona’s insanity test and its Mottrule each violate due process. As to theinsanity standard, Clark claimed (as hehad argued earlier) that the Arizona Leg-

islature had impermissibly narrowed itsstandard in 1993 when it eliminated thefirst part of the two-part insanity test an-nounced in M’Naghten’s Case, 10 Cl. &Fin. 200, 8 Eng. Rep. 718 (1843). Thecourt denied the motion.

The Court of Appeals of Arizona af-firmed Clark’s conviction, treating the con-clusion on sanity as supported by enoughevidence to withstand review for abuse ofdiscretion, and holding the State’s insanityscheme consistent with due process. App.336. As to the latter, the Court of Appealsreasoned that there is no constitutionalrequirement to recognize an insanity de-fense at all, the bounds of which are left tothe State’s discretion. Beyond that, theappellate court followed Mott, reading it asbarring the trial court’s considSeration747 ofevidence of Clark’s mental illness and ca-pacity directly on the element of mens rea.The Supreme Court of Arizona denied fur-ther review.

We granted certiorari to decide whetherdue process prohibits Arizona from thusnarrowing its insanity test or from exclud-ing evidence of mental illness and incapaci-ty due to mental illness to rebut evidenceof the requisite criminal intent. 546 U.S.1060 (2005). We now affirm.

II

Clark first says that Arizona’s definitionof insanity, being only a fragment of theVictorian standard from which it derives,violates due process. The landmark En-glish rule in M’Naghten’s Case, supra,states that

‘‘the jurors ought to be told TTT that toestablish a defence on the ground ofinsanity, it must be clearly proved that,

4. Clark did not at this time make an addition-al offer of proof, as contemplated by the trialcourt when it ruled that it would consider

evidence bearing on insanity as to insanity butnot as to mens rea. See n. 3, supra.



548 U.S. 749

at the time of the committing of the act,the party accused was laboring undersuch a defect of reason, from disease ofthe mind, as not to know the nature andquality of the act he was doing; or, if hedid know it, that he did not know he wasdoing what was wrong.’’ Id., at 210, 8Eng. Rep., at 722.

The first part asks about cognitive capaci-ty: whether a mental defect leaves a de-fendant unable to understand what he isdoing. The second part presents an osten-sibly alternative basis for recognizing adefense of insanity understood as a lack ofmoral capacity: whether a mental diseaseor defect leaves a defendant unable tounderstand that his action is wrong.

When the Arizona Legislature first codi-fied an insanity rule, it adopted the fullM’Naghten statement (subject to modifica-tions in details that do not matter here):

‘‘A person is not responsible for criminalconduct if at the time of such conductthe person was suffering from such amental disease or defect as not to knowthe naSture748 and quality of the act or, ifsuch person did know, that such persondid not know that what he was doingwas wrong.’’ Ariz.Rev.Stat. Ann. § 13–502 (West 1978).5

In 1993, the legislature dropped the cogni-tive incapacity part, leaving only moralincapacity as the nub of the stated defini-tion. See 1993 Ariz. Sess. Laws ch. 256,§§ 2–3.6 Under current Arizona law, adefendant will not be adjudged insane un-

less he demonstrates that ‘‘at the time ofthe commission of the criminal act [he] wasafflicted with a mental disease or defect ofsuch severity that [he] did not know thecriminal act was wrong,’’ Ariz.Rev.Stat.Ann. § 13–502(A) (West 2001).

A[1] Clark challenges the 1993 amend-

ment excising the express reference to thecognitive incapacity element. He insiststhat the side-by-side M’Naghten test rep-resents the minimum that a governmentmust provide in recognizing an alternativeto criminal responsibility on grounds ofmental illness or defect, and he arguesthat elimination of the M’Naghten refer-ence to nature and quality ‘‘ ‘offends [a]principle of justice so rooted in the tradi-tions and conscience of our people as to beranked as fundamental,’ ’’ Patterson v.S 749New York, 432 U.S. 197, 202, 97 S.Ct.2319, 53 L.Ed.2d 281 (1977) (quotingSpeiser v. Randall, 357 U.S. 513, 523, 78S.Ct. 1332, 2 L.Ed.2d 1460 (1958)); seealso Leland v. Oregon, 343 U.S. 790, 798,72 S.Ct. 1002, 96 L.Ed. 1302 (1952).

The claim entails no light burden, seeMontana v. Egelhoff, 518 U.S. 37, 43, 116S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurali-ty opinion), and Clark does not carry it.History shows no deference to M’Naghtenthat could elevate its formula to the levelof fundamental principle, so as to limit thetraditional recognition of a State’s capacityto define crimes and defenses, see Patter-son, supra, at 210, 97 S.Ct. 2319; see also

5. This statutory standard followed the ArizonaSupreme Court’s declaration that Arizona has‘‘uniformly adhered’’ to the two-partM’Naghten standard. State v. Schantz, 98Ariz. 200, 206, 403 P.2d 521, 525 (1965) (cit-ing cases), cert. denied, 382 U.S. 1015, 86S.Ct. 628, 15 L.Ed.2d 530 (1966).

6. This change was accompanied by others,principally an enumeration of mental statesexcluded from the category of ‘‘mental dis-

ease or defect,’’ such as voluntary intoxicationand other conditions, and a change of theinsanity verdict from ‘‘not responsible forcriminal conduct’’ by reason of insanity to‘‘guilty except insane.’’ See 1993 Ariz. Sess.Laws ch. 256, §§ 2–3. The 1993 amendmentswere prompted, at least in part, by an acquit-tal by reason of insanity in a murder case.See Note, Arizona’s Insane Response to In-sanity, 40 Ariz. L.Rev. 287, 290 (1998).



Foucha v. Louisiana, 504 U.S. 71, 96, 112S.Ct. 1780, 118 L.Ed.2d 437 (1992) (KEN-NEDY, J., dissenting).

Even a cursory examination of the tra-ditional Anglo–American approaches to in-sanity reveals significant differencesamong them, with four traditional strainsvariously combined to yield a diversity ofAmerican standards. The main variantsare the cognitive incapacity, the moral in-capacity, the volitional incapacity, and theproduct-of-mental-illness tests.7 The firsttwo emanate from the alternatives statedin the M’Naghten rule. The volitional in-

capacity or irresistible-impulse test, whichsurfaced over two centuries ago (first inEngland,8 then in this country 9), askswhether a person was so lacking in voli-tion due to a mental defect or illness thathe could not have controlled his actions.And the product-of-mental-illness test wasused as early as 1870,10 and simply askswhether a person’s action was a prod Suct750

of a mental disease or defect.11 SeventeenStates and the Federal Government haveadopted a recognizable version of theM’Naghten test with both its cognitive in-capacity and moral incapacity compo-nents.12 One State has adopted S 751only

7. ‘‘Capacity’’ is understood to mean the abili-ty to form a certain state of mind or motive,understand or evaluate one’s actions, or con-trol them.

8. See Queen v. Oxford, 9 Car. & P. 525, 546,173 Eng. Rep. 941, 950 (1840) (‘‘If somecontrolling disease was, in truth, the actingpower within [the defendant] which he couldnot resist, then he will not be responsible’’);Hadfield’s Case, 27 How. St. Tr. 1281, 1314–1315, 1354–1355 (K.B.1800). But cf. Queenv. Burton, 3 F. & F. 772, 780, 176 Eng. Rep.354, 357 (1863) (rejecting the irresistible-im-pulse test as ‘‘a most dangerous doctrine’’).

9. E.g., Parsons v. State, 81 Ala. 577, 2 So. 854(1887); State v. Thompson, Wright’s OhioRep. 617 (1834).

10. State v. Jones, 50 N.H. 369 (1871); State v.Pike, 49 N.H. 399 (1870).

11. This distillation of the Anglo–American in-sanity standards into combinations of fourbuilding blocks should not be read to signifythat no other components contribute to theseinsanity standards or that there are no materi-al distinctions between jurisdictions testinginsanity with the same building blocks. Forexample, the jurisdictions limit, in varyingdegrees, which sorts of mental illness or de-fect can give rise to a successful insanitydefense. Compare, e.g., Ariz.Rev.Stat. Ann.§ 13–502(A) (West 2001) (excluding from def-inition of ‘‘mental disease or defect’’ acutevoluntary intoxication, withdrawal from alco-hol or drugs, character defects, psychosexualdisorders, and impulse control disorders)with, e.g., Ind.Code § 35–41–3–6(b) (West

2004) (excluding from definition of ‘‘mentaldisease or defect’’ ‘‘abnormality manifestedonly by repeated unlawful or antisocial con-duct’’). We need not compare the standardsunder a finer lens because our coarser analy-sis shows that the standards vary significant-ly.

12. See 18 U.S.C. § 17; Ala.Code § 13A–3–1(1994); Cal.Penal Code Ann. § 25 (West1999); Colo.Rev.Stat.Ann. § 16–8–101.5(2005); Fla. Stat. § 775.027 (2003); IowaCode § 701.4 (2005); Minn.Stat. § 611.026(2004); Stevens v. State, 806 So.2d 1031,1050–1051 (Miss.2001); Mo.Rev.Stat.§ 562.086 (2000); State v. Harms, 263 Neb.814, 836–837, 643 N.W.2d 359, 378–379(2002); Nev.Rev.Stat. § 194.010 (2004); Fin-ger v. State, 117 Nev. 548, 553–577, 27 P.3d66, 70–85 (2001); N.J. Stat. Ann. § 2C:4–1(West 2005); N.Y. Penal Law Ann. § 40.15(West 2004); State v. Thompson, 328 N.C.477, 485–486, 402 S.E.2d 386, 390 (1991);Burrows v. State, 640 P.2d 533, 540–541(Okla.Crim.App.1982) (interpreting statutorylanguage excusing from criminal responsibili-ty mentally ill defendants when ‘‘at the timeof committing the act charged against themthey were incapable of knowing its wrongful-ness,’’ Okla. Stat., Tit. 21, § 152(4) (West2001), to mean the two-part M’Naghten test);18 Pa. Cons.Stat. § 315 (2002); Tenn.CodeAnn. § 39–11–501 (2003); Wash. Rev.Code§ 9A.12.010 (2004). North Dakota has aunique test, which appears to be a modifiedversion of M’Naghten, asking whether a de-fendant ‘‘lacks substantial capacity to com-prehend the harmful nature or consequences



548 U.S. 752

M’Naghten’s cognitive incapacity test,13

and 10 (including Arizona) have adoptedthe moral incapacity test alone.14 Four-teen jurisdictions, inspired by the ModelPenal Code,15 have in place an amalgam ofthe volitional incapacity test and somevariant of the moral incapacity test, satis-faction of either (generally by showing adefendant’s substantial lack of capacity)being enough to excuse.16 Three Statescombine a full M’Naghten test with a voli-tional incapacity formula.17 And NewHampshire alone stands by the product-

of-mental-illness test.18 The alternativesare multiplied further by variations in theprescribed insanity verdict: a significantnumber of these jurisdictions supplementthe traditional ‘‘not guilty by reason of in-sanity’’ verdict with an S 752alternative of‘‘guilty but mentally ill.’’ 19 Finally, fourStates have no affirmative insanity de-fense,20 though one provides for a ‘‘guiltyand mentally ill’’ verdict.21 These four,like a number of others that recognize anaffirmative insanity defense, allow consid-

of the conduct, or the conduct is the result ofa loss or serious distortion of the individual’scapacity to recognize reality,’’ N.D. Cent.CodeAnn. § 12.1–04.1–01(1)(a) (Lexis 1997), when‘‘[i]t is an essential element of the crimecharged that the individual act willfully,’’§ 12.1–04.1–01(1)(b).

13. Alaska Stat. § 12.47.010 (2004).

14. Ariz.Rev.Stat. Ann. § 13–502 (West 2001);Del.Code Ann., Tit. 11, § 401 (1995); Ind.Code § 35–41–3–6 (West 2004); Ill. Comp.Stat., ch. 720, § 5/6–2 (West 2004); La. Stat.Ann. § 14:14 (West 1997); Me.Rev.Stat. Ann.,Tit. 17–A, § 39 (2006); Ohio Rev.Code Ann.§ 2901.01(A)(14) (Lexis 2006); S.C.Code Ann.§ 17–24–10 (2003); S.D. Codified Laws § 22–1–2(20) (2005 Supp. Pamphlet); Tex. PenalCode Ann. § 8.01 (West 2003).

15. ALI, Model Penal Code § 4.01(1), p. 66(Proposed Official Draft 1962) (‘‘A person isnot responsible for criminal conduct if at thetime of such conduct as a result of mentaldisease or defect he lacks substantial capacityeither to appreciate the criminality [wrongful-ness] of his conduct or to conform his con-duct to the requirements of law’’).

16. Ark.Code Ann. § 5–2–312 (2006); Conn.Gen.Stat. § 53a–13 (2005); Malede v. UnitedStates, 767 A.2d 267, 269 (D.C.2001); Ga.Code Ann. §§ 16–3–2, 16–3–3 (2003); Haw.Rev.Stat. § 704–400 (1993); Ky.Rev.Stat.Ann. § 504.020 (West 2003); Md.Crim. Proc.Code Ann. § 3–109 (Lexis 2001); Common-wealth v. McLaughlin, 431 Mass. 506, 508,729 N.E.2d 252, 255 (2000); Ore.Rev.Stat.§ 161.295 (2003); State v. Martinez, 651 A.2d1189, 1193 (R.I.1994); Vt. Stat. Ann., Tit. 13,§ 4801 (1998); State v. Lockhart, 208 W.Va.622, 630, 542 S.E.2d 443, 451 (2000); Wis.

Stat. § 971.15 (2003–2004); Wyo. Stat. Ann.§ 7–11–304 (2005).

17. Mich. Comp. Laws Ann. § 768.21a (West2000); State v. Hartley, 90 N.M. 488, 490–491, 565 P.2d 658, 660–661 (1977); Bennett v.Commonwealth, 29 Va.App. 261, 277, 511S.E.2d 439, 446–447 (1999).

18. State v. Plante, 134 N.H. 456, 461, 594A.2d 1279, 1283 (1991).

19. See, e.g., Alaska Stat. §§ 12.47.020(c),12.47.030 (2004); Del.Code Ann., Tit. 11,§ 401 (1995); Ga.Code Ann. § 17–7–131(2004); Ill. Comp. Stat., ch. 720, § 5/6–2(West 2004); Ind.Code §§ 35–35–2–1, 35–36–1–1, 35–36–2–3 (West 2004); Ky.Rev.Stat.Ann. § 504.130 (West 2003); Mich. Comp.Laws Ann. § 768.36 (West Supp.2006); N.M.Stat. Ann. § 31–9–3 (2000); 18 Pa. Cons.Stat.§ 314 (2002); S.C.Code Ann. § 17–24–20(2003); S.D. Codified Laws § 23A–26–14(2004). Usually, a defendant found ‘‘guiltybut mentally ill’’ will receive mental-healthtreatment until his mental health has re-bounded, at which point he must serve theremainder of his imposed sentence. See, e.g.,Alaska Stat. § 12.47.050 (2004).

20. Idaho Code § 18–207 (Lexis 2004); Kan.Stat. Ann. § 22–3220 (1995); Mont.Code Ann.§§ 46–14–102, 46–14–311 (2005); Utah CodeAnn. § 76–2–305 (Lexis 2003). We have nev-er held that the Constitution mandates aninsanity defense, nor have we held that theConstitution does not so require. This casedoes not call upon us to decide the matter.

21. §§ 77–16a–101, 77–16a–103, 77–16a–104(Lexis 2003).



eration of evidence of mental illness di-rectly on the element of mens rea definingthe offense.22

With this varied background, it is clearthat no particular formulation has evolvedinto a baseline for due process, and thatthe insanity rule, like the conceptualizationof criminal offenses, is substantially opento state choice. Indeed, the legitimacy ofsuch choice is the more obvious when oneconsiders the interplay of legal concepts ofmental illness or deficiency required for aninsanity defense, with the medical conceptsof mental abnormality that influence theexpert opinion testimony by psychologistsand psychiatrists commonly introduced tosupport or contest insanity claims. Formedical definitions devised to justify treat-ment, like legal ones devised to excusefrom conventional criminal responsibility,are subject to flux and disagreement. Seeinfra, at S 7532734; cf. Leland, 343 U.S., at800–801, 72 S.Ct. 1002 (no due processviolation for adopting the M’Naghten stan-dard rather than the irresistible-impulsetest because scientific knowledge does notrequire otherwise and choice of test is amatter of policy). There being such fod-der for reasonable debate about what thecognate legal and medical tests should be,due process imposes no single canonicalformulation of legal insanity.

B

Nor does Arizona’s abbreviation of theM’Naghten statement raise a proper claimthat some constitutional minimum hasbeen shortchanged. Clark’s argument of

course assumes that Arizona’s formerstatement of the M’Naghten rule, with itsexpress alternative of cognitive incapacity,was constitutionally adequate (as weagree). That being so, the abbreviatedrule is no less so, for cognitive incapacity isrelevant under that statement, just as itwas under the more extended formulation,and evidence going to cognitive incapacityhas the same significance under the shortform as it had under the long.

Though Clark is correct that the appli-cation of the moral incapacity test (tellingright from wrong) does not necessarilyrequire evaluation of a defendant’s cogni-tive capacity to appreciate the nature andquality of the acts charged against him,see Brief for Petitioner 46–47, his argu-ment fails to recognize that cognitive inca-pacity is itself enough to demonstratemoral incapacity. Cognitive incapacity, inother words, is a sufficient condition forestablishing a defense of insanity, albeitnot a necessary one. As a defendant cantherefore make out moral incapacity bydemonstrating cognitive incapacity, evi-dence bearing on whether the defendantknew the nature and quality of his actionsis both relevant and admissible. In prac-tical terms, if a defendant did not knowwhat he was doing when he acted, hecould not have known that he was per-forming the wrongful act charged as S 754acrime.23 Indeed, when the two-part rulewas still in effect, the Supreme Court ofArizona held that a jury instruction oninsanity containing the moral incapacitypart but not a full recitation of the cogni-tive incapacity part was fine, as the cogni-tive incapacity part might be ‘‘ ‘treated as

22. See statutes cited in n. 20, supra.

23. He might, of course, have thought delu-sively he was doing something just as wrong-ful as the act charged against him, but this isnot the test: he must have understood that hewas committing the act charged and that itwas wrongful, see Ariz.Rev.Stat. Ann. § 13–

502(A) (West 2001) (‘‘A person may be foundguilty except insane if at the time of thecommission of the criminal act the personwas afflicted with a mental disease or defectof such severity that the person did not knowthe criminal act was wrong’’).



548 U.S. 756

adding nothing to the requirement thatthe accused know his act was wrong.’ ’’State v. Chavez, 143 Ariz. 238, 239, 693P.2d 893, 894 (1984) (quoting A. Goldstein,The Insanity Defense 50 (1967)).

The Court of Appeals of Arizona ac-knowledged as much in this case, too, seeApp. 350 (‘‘It is difficult to imagine that adefendant who did not appreciate the ‘na-ture and quality’ of the act he committedwould reasonably be able to perceive thatthe act was ‘wrong’ ’’), and thus aligneditself with the long-accepted understandingthat the cognitively incapacitated are asubset of the morally incapacitated withinthe meaning of the standard M’Naghtenrule, see, e.g., Goldstein, supra, at 51 (‘‘Inthose situations where the accused doesnot know the nature and quality of his act,in the broad sense, he will not know that itwas wrong, no matter what construction‘wrong’ is given’’); 1 W. LaFave, Substan-tive Criminal Law § 7.2(b)(3), p. 536 (2ded. 2003) (‘‘Many courts feel that knowl-edge of ‘the nature and quality of the act’is the mere equivalent of the ability toknow that the act was wrong’’ (citing

cases)); id., § 7.2(b)(4), at 537 (‘‘If thedefendant does not know the nature andquality of his act, then quite obviously hedoes not know that his act is ‘wrong,’ andthis is true without regard to the interpre-tation given to the word S 755‘wrong’ ’’); cf.1 R. Gerber, Criminal Law of Arizona 502–7, n. 1 (2d ed.1993).24

Clark, indeed, adopted this very analysishimself in the trial court: ‘‘[I]f [Clark] didnot know he was shooting at a police offi-cer, or believed he had to shoot or be shot,even though his belief was not based inreality, this would establish that he did notknow what he was doing was wrong.’’Record, Doc. 374, at 1. The trial courtapparently agreed, for the judge admittedClark’s evidence of cognitive incapacity forconsideration under the State’s moral inca-pacity formulation. And Clark can pointto no evidence bearing on S 756insanity thatwas excluded. His psychiatric expert anda number of lay witnesses testified to hisdelusions, and this evidence tended to sup-port a description of Clark as lacking thecapacity to understand that the police offi-

24. We think this logic holds true in the face ofthe usual rule of statutory construction of‘‘ ‘ ‘‘giv[ing] effect, if possible, to every clauseand word of a statute,’’ ’ ’’ Duncan v. Walker,533 U.S. 167, 174, 121 S.Ct. 2120, 150L.Ed.2d 251 (2001) (quoting United States v.Menasche, 348 U.S. 528, 538–539, 75 S.Ct.513, 99 L.Ed. 615 (1955)); see also 2 J. Suth-erland, Statutes and Statutory Construction§ 4705 (3d ed.1943). Insanity standards areformulated to guide the factfinder to deter-mine the blameworthiness of a mentally illdefendant. See, e.g., Jones v. United States,463 U.S. 354, 373, n. 4, 103 S.Ct. 3043, 77L.Ed.2d 694 (1983) (Brennan, J., dissenting).The M’Naghten test is a sequential test, firstasking the factfinder to conduct the easierenquiry whether a defendant knew the natureand quality of his actions. If not, the defen-dant is to be considered insane and there isno need to pass to the harder and broaderenquiry whether the defendant knew his ac-tions were wrong. And, because, owing tothis sequence, the factfinder is to ask whether

a defendant lacks moral capacity only whenhe possesses cognitive capacity, the only de-fendants who will be found to lack moralcapacity are those possessing cognitive capac-ity. Cf. 2 C. Torcia, Wharton’s Criminal Law§ 101 (15th ed.1994). Though, before 1993,Arizona had in place the full M’Naghten testwith this sequential enquiry, see, e.g., Schantz,98 Ariz., at 207, 403 P.2d, at 525, it wouldappear that the legislature eliminated the cog-nitive capacity part not to change the mean-ing of the insanity standard but to implementits judgment that a streamlined standard withonly the moral capacity part would be easierfor the jury to apply, see Arizona House ofRepresentatives, Judiciary Committee Notes 3(Mar. 18, 1993); 1 R. Gerber, Criminal Lawof Arizona 502–6, 502–11 (2d ed.1993 andSupp.2000). This is corroborated by theState’s choice for many years against revisingthe applicable recommended jury instruction(enumerating the complete M’Naghten test) inorder to match the amended statutory stan-



cer was a human being. There is no doubtthat the trial judge considered the evi-dence as going to an issue of cognitivecapacity, for in finding insanity not provenhe said that Clark’s mental illness ‘‘did notTTT distort his perception of reality soseverely that he did not know his actionswere wrong,’’ App. 334.

We are satisfied that neither in theorynor in practice did Arizona’s 1993 abridg-ment of the insanity formulation depriveClark of due process.

IIIClark’s second claim of a due process

violation challenges the rule adopted bythe Supreme Court of Arizona in State v.Mott, 187 Ariz. 536, 931 P.2d 1046, cert.denied, 520 U.S. 1234, 117 S.Ct. 1832, 137L.Ed.2d 1038 (1997). This case ruled onthe admissibility of testimony from a psy-chologist offered to show that the defen-dant suffered from battered women’s syn-drome and therefore lacked the capacity toform the mens rea of the crime chargedagainst her. The opinion variously re-ferred to the testimony in issue as ‘‘psy-chological testimony,’’ 187 Ariz., at 541, 931P.2d, at 1051, and ‘‘expert testimony,’’ibid., and implicitly equated it with ‘‘expertpsychiatric evidence,’’ id., at 540, 931 P.2d,at 1050 (internal quotation marks omitted),and ‘‘psychiatric testimony,’’ id., at 541,931 P.2d, at 1051.25 The state court held

that testimony of a professional psycholo-gist or psychiatrist about a defendant’smental incapacity owing to mental diseaseor defect was admissible, and could beconsidered, only for its bearing on an in-sanity defense; such evidence could not beconsidered on the element S 757of mens rea,that is, what the State must show about adefendant’s mental state (such as intent orunderstanding) when he performed the actcharged against him. See id., at 541, 544,931 P.2d, at 1051, 1054.26

AUnderstanding Clark’s claim requires

attention to the categories of evidence witha potential bearing on mens rea. First,there is ‘‘observation evidence’’ in the ev-eryday sense, testimony from those whoobserved what Clark did and heard whathe said; this category would also includetestimony that an expert witness mightgive about Clark’s tendency to think in acertain way and his behavioral characteris-tics. This evidence may support a profes-sional diagnosis of mental disease and inany event is the kind of evidence that canbe relevant to show what in fact was onClark’s mind when he fired the gun. Ob-servation evidence in the record coversClark’s behavior at home and with friends,his expressions of belief around the time ofthe killing that ‘‘aliens’’ were inhabitingthe bodies of local people (including gov-ernment agents),27 his driving around the

dard. See 1 Gerber, supra, at 502–6 (2ded.1993 and Supp.2000).

25. We thus think the dissent reads Mott toobroadly. See post, at 2740–2741 (opinion ofKENNEDY, J.) (no distinction between obser-vation and mental-disease testimony, see in-fra, at 2724–2725, or lay and expert).

26. The more natural reading of Mott suggeststo us that this evidence cannot be consideredas to mens rea even if the defendant estab-lishes his insanity, though one might readMott otherwise.

27. Clark’s parents testified that, in the monthsbefore the shooting and even days before-hand, Clark called them ‘‘aliens’’ and thoughtthat ‘‘aliens’’ were out to get him. See, e.g.,Tr. of Bench Trial in No. CR 2000–538, pp.110–112, 136, 226–228 (Aug. 20, 2003). Onenight before the shooting, according toClark’s mother, Clark repeatedly viewed apopular film characterized by her as telling astory about ‘‘aliens’’ masquerading as govern-ment agents, a story Clark insisted was realdespite his mother’s protestations to the con-trary. See id., at 59–60 (Aug. 21, 2003). Andtwo months after the shooting, Clark purport-edly told his parents that his hometown, Flag-



548 U.S. 759

neighborhood before the police arrived,and so on. Contrary to the dissent’s char-acterization, see post, at 2738–2739 (opin-ion of KENNEDY, J.), obserSvation758 evi-dence can be presented by either lay orexpert witnesses.

Second, there is ‘‘mental-disease evi-dence’’ in the form of opinion testimonythat Clark suffered from a mental diseasewith features described by the witness.As was true here, this evidence character-istically but not always 28 comes from pro-fessional psychologists or psychiatristswho testify as expert witnesses and basetheir opinions in part on examination of adefendant, usually conducted after theevents in question. The thrust of thisevidence was that, based on factual re-ports, professional observations, and tests,Clark was psychotic at the time in ques-tion, with a condition that fell within thecategory of schizophrenia.

Third, there is evidence we will refer toas ‘‘capacity evidence’’ about a defendant’scapacity for cognition and moral judgment(and ultimately also his capacity to formmens rea ). This, too, is opinion evidence.Here, as it usually does,29 this testimonycame from the same experts and concen-trated on those specific details of themental condition that make the differencebetween sanity and insanity under theArizona definition.30 In their respectivetestimony on S 759these details the expertsdisagreed: the defense expert gave hisopinion that the symptoms or effects ofthe disease in Clark’s case included inabil-ity to appreciate the nature of his actionand to tell that it was wrong, whereas theState’s psychiatrist was of the view thatClark was a schizophrenic who was stillsufficiently able to appreciate the realityof shooting the officer and to know that itwas wrong to do that.31

staff, was inhabited principally by ‘‘aliens,’’who had to be stopped, and that the only wayto stop them was with bullets. See, e.g., id.,at 131–132 (Aug. 20, 2003); id., at 24–25(Aug. 21, 2003).

28. This is contrary to the dissent’s under-standing. See post, at 2738–2739 (opinion ofKENNEDY, J.).

29. In conflict with the dissent’s characteriza-tion, see post, at 2738–2739 (opinion of KEN-NEDY, J.), it does not always, however, comefrom experts.

30. Arizona permits capacity evidence, see,e.g., State v. Sanchez, 117 Ariz. 369, 373, 573P.2d 60, 64 (1977); see also Ariz. Rule Evid.704 (2006) (allowing otherwise admissible ev-idence on testimony ‘‘embrac[ing] an ultimateissue to be decided by the trier of fact’’),though not every jurisdiction permits suchevidence on the ultimate issue of insanity.See, e.g., Fed. Rule Evid. 704(b) (‘‘No expertwitness testifying with respect to the mentalstate or condition of a defendant in a criminalcase may state an opinion or inference as towhether the defendant did or did not have themental state or condition constituting an ele-ment of the crime charged or of a defense

thereto. Such ultimate issues are matters forthe trier of fact alone’’); United States v. Dix-on, 185 F.3d 393, 400 (C.A.5 1999) (in theface of mental-disease evidence, Rule 704(b)prohibits an expert ‘‘from testifying that [themental-disease evidence] does or does notprevent the defendant from appreciating thewrongfulness of his actions’’).

31. Arizona permits evidence bearing on in-sanity to be presented by either lay or expertwitnesses. See State v. Bay, 150 Ariz. 112,116, 722 P.2d 280, 284 (1986). According toBay, ‘‘[f]oundationally, a lay witness musthave had an opportunity to observe the pastconduct and history of a defendant; the factthat he is a lay witness goes not to the admis-sibility of the testimony but rather to itsweight.’’ Ibid. (citation omitted); see alsoState v. Hughes, 193 Ariz. 72, 83, 969 P.2d1184, 1195 (1998). In fact, a defendant cantheoretically establish insanity solely via laytestimony. See Bay, supra, at 116, 722 P.2d,at 284. But cf. State v. McMurtrey, 136 Ariz.93, 100, 664 P.2d 637, 644 (1983) (‘‘[I]t isdifficult to imagine how a defendant couldplace his or her sanity in issue TTT withoutexpert testimony as to the defendant’s state ofmind at the time of the crime’’).



A caveat about these categories is inorder. They attempt to identify differentkinds of testimony offered in this case interms of explicit and implicit distinctionsmade in Mott. What we can say aboutthese categories goes to their cores, how-ever, not their margins. Exact limits havethus not been worked out in any Arizonalaw that has come to our attention, and inthis case, neither the courts in their rul-ings nor counsel in objections invoked orrequired precision in applying the Mottrule’s evidentiary treatment, as we explainbelow. Necessarily, then, our own deci-sion can address only core issues, leavingfor other cases any due process claims thatmay be raised about the treatment of evi-dence whose categorization is subject todispute.

S 760BIt is clear that Mott itself imposed no

restriction on considering evidence of thefirst sort, the observation evidence. Weread the Mott restriction to apply, rather,to evidence addressing the two issues intestimony that characteristically comesonly from psychologists or psychiatristsqualified to give opinions as expert wit-nesses: mental-disease evidence (whetherat the time of the crime a defendant suf-fered from a mental disease or defect, suchas schizophrenia) and capacity evidence(whether the disease or defect left himincapable of performing or experiencing amental process defined as necessary forsanity such as appreciating the nature andquality of his act and knowing that it waswrong).

Mott was careful to distinguish this kindof opinion evidence from observation evi-

dence generally and even from observationevidence that an expert witness might of-fer, such as descriptions of a defendant’stendency to think in a certain way or hisbehavioral characteristics; the Arizonacourt made it clear that this sort of testi-mony was perfectly admissible to rebut theprosecution’s evidence of mens rea, 187Ariz., at 544, 931 P.2d, at 1054. Thus, onlyopinion testimony going to mental defector disease, and its effect on the cognitiveor moral capacities on which sanity de-pends under the Arizona rule, is restricted.

In this case, the trial court seems tohave applied the Mott restriction to allevidence offered by Clark for the purposeof showing what he called his inability toform the required mens rea, see, e.g., Rec-ord, Doc. 406, at 7–10 (that is, an intent tokill a police officer on duty, or an under-standing that he was engaging in the act ofkilling such an officer, see Ariz.Rev.Stat.Ann. § 13–1105(A)(3) (West Supp.2005)).Thus, the trial court’s restriction may havecovered not only mental-disease and capac-ity evidence as just defined, but also obser-vation evidence offered by lay (and expert)witnesses who described Clark’s unusualbehavior. Clark’s objection to the applica-tion of the Mott rule does not, however,turn S 761on the distinction between lay andexpert witnesses or the kinds of testimonythey were competent to present.32

CThere is some, albeit limited, disagree-

ment between the dissent and ourselvesabout the scope of the claim of error prop-erly before us. To start with matters ofagreement, all Members of the Courtagree that Clark’s general attack on the

32. With respect to ‘‘the limited factual issuesthe trial court held it could consider under[Ariz.Rev.Stat. Ann.] § 13–502 and Mott, de-fense counsel made no additional ‘offer ofproof’ at the conclusion of the case but pre-

served [Clark’s] legal contentions by askingthe court to consider all of the evidence pre-sented in determining whether the state hadproved its case.’’ Brief for Petitioner 10, n.20 (citation omitted).



548 U.S. 763

Mott rule covers its application in confin-ing consideration of capacity evidence tothe insanity defense.

In practical terms, our agreement onissues presented extends to a second point.Justice KENNEDY understands thatClark raised an objection to confining men-tal-disease evidence to the insanity issue.As he sees it, Clark in effect claimed thatin dealing with the issue of mens rea thetrial judge should have considered experttestimony on what may characteristicallygo through the mind of a schizophrenic,when the judge considered what in factwas in Clark’s mind at the time of theshooting. See post, at 2739 (dissentingopinion) (‘‘[T]he opinion that Clark hadparanoid schizophrenia—an opinion sharedby experts for both the prosecution anddefense—bears on efforts to determine, asa factual matter, whether he knew he waskilling a police officer’’). He thus under-stands that defense counsel claimed a rightto rebut the State’s mens rea demonstra-tion with testimony about how schizo-phrenics may hallucinate voices and othersounds, about their characteristic failure todistinguish the content of their imaginationfrom what most people perceive as exteri-or reality, and so on. It is important to beclear that this supposed objection was notabout dealing with tesStimony762 based onobservation of Clark showing that he hadauditory hallucinations when he was driv-ing around, or failed in fact to appreciateobjective reality when he shot; this objec-tion went to use of testimony about schizo-phrenics, not about Clark in particular.While we might dispute how clearly Clarkraised this objection, we have no doubtthat the objection falls within a generalchallenge to the Mott rule; we understandthat Mott is meant to confine to the insani-ty defense any consideration of character-istic behavior associated with mental dis-ease, see 187 Ariz., at 544, 931 P.2d, at1054 (contrasting State v. Christensen, 129

Ariz. 32, 628 P.2d 580 (1981), and State v.Gonzales, 140 Ariz. 349, 681 P.2d 1368(1984)). We will therefore assume for ar-gument that Clark raised this claim, as weconsider the due process challenge to theMott rule.

[2] The point on which we disagreewith the dissent, however, is this: didClark apprise the Arizona courts that hebelieved the trial judge had erroneouslylimited the consideration of observation ev-idence, whether from lay witnesses likeClark’s mother or (possibly) the expertwitnesses who observed him? This sort ofevidence was not covered by the Mottrestriction, and confining it to the insanityissue would have been an erroneous appli-cation of Mott as a matter of Arizona law.For the following reasons we think no suchobjection was made in a way the Arizonacourts could have understood it, and thatno such issue is before us now. We thinkthe only issue properly before us is thechallenge to Mott on due process grounds,comprising objections to limits on the useof mental-disease and capacity evidence.

It is clear that the trial judge intendedto apply Mott:

‘‘[R]ecognizing that much of the evi-dence that [the defense is] going to besubmitting, in fact all of it, as far as Iknow TTT that has to do with the insani-ty could also arguably be made alongthe lines of the Mott issues as to formand intent and his capacity for the in-tent. I’m going to let you go ahead andget all that stuff in because S 763it goes tothe insanity issue and because we’re notin front of a jury. At the end, I’ll letyou make an offer of proof as to theintent, the Mott issues, but I still thinkthe supreme court decision is the law ofthe land in this state.’’ App. 9.

At no point did the trial judge specifyany particular evidence that he refused to



consider on the mens rea issue. Nor diddefense counsel specify any observation orother particular evidence that he claimedwas admissible but wrongly excluded onthe issue of mens rea, so as to produce aclearer ruling on what evidence was beingrestricted on the authority of Mott andwhat was not. He made no ‘‘offer ofproof’’ in the trial court; 33 and althoughhis brief in the Arizona Court of Appealsstated at one point that it was not inconsis-tent with Mott to consider nonexpert evi-dence indicating mental illness on the issueof mens rea, and argued that the trialjudge had failed to do so, Appellant’sOpening Brief in No. 1CA–CR–03–0851etc., pp. 48–49 (hereinafter Appellant’sOpening Brief), he was no more specificthan that, see, e.g., id., at 52 (‘‘The Court’sruling in Mott and the trial court’s refusalto consider whether as a result of sufferingfrom paranoid schizophrenia [Clark] couldnot formulate the mens rea necessary forfirst degree murder violated his right todue process’’). Similarly, we read the Ari-zona Court of Appeals to have done noth-ing more than rely on Mott to reject theclaim that due process forbids restrictingevidence bearing on ‘‘[a]bility to [f]orm[m]ens [r]ea,’’ App. 351 (em Sphasis764 inoriginal), (i.e., mental-disease and capacityevidence) to the insanity determination.See id., at 351–353.

This failure in the state courts to raiseany clear claim about observation evi-dence, see Appellant’s Opening Brief 46–52, is reflected in the material addressedto us, see Brief for Petitioner 13–32. In

this Court both the question presented andthe following statement of his positionwere couched in similarly worded generalterms:

‘‘I. ERIC WAS DENIED DUE PRO-CESS WHEN THE TRIAL COURTREFUSED TO CONSIDER EVI-DENCE OF HIS SEVERE MENTALILLNESS IN DETERMINING FAC-TUALLY WHETHER THE PROSE-CUTION PROVED THE MENTALELEMENTS OF THE CRIMECHARGED.’’ Id., at 13.

But as his counsel made certain beyonddoubt in his reply brief,

‘‘Eric’s Point I is and always has beenan attack on the rule of State v. Mott,which both courts below held applicableand binding. Mott announced a categor-ical ‘rejection of the use of psychologicaltestimony to challenge the mens rea ele-ment of a crime,’ and upheld this ruleagainst federal due process challenge.’’Reply Brief for Petitioner 2 (citationsomitted).

This explanation is supported by otherstatements in Clark’s briefs in both theState Court of Appeals and this Court,replete with the consistently maintainedclaim that it was error to limit evidence ofmental illness and incapacity to its bearingon the insanity defense, excluding it fromconsideration on the element of mens rea.See, e.g., Appellant’s Opening Brief 46, 47,51; Brief for Petitioner 11, 13, 16, 20–23.

In sum, the trial court’s ruling, with itsuncertain edges, may have restricted ob-servation evidence admissible on mens reato the insanity defense alone, but we can-

33. We do not agree with the State’s argumentthat the failure to make an offer of proof, seen. 4, supra, is a bar to pressing Clark’s claimabout the admissibility of mental-illness orcapacity evidence as to mens rea, see Brief forRespondent 27–29, especially when the Ari-zona Court of Appeals rejected Clark’s argu-ment on the merits rather than clearly on this

ground, see App. 351–353; see also Michiganv. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469,77 L.Ed.2d 1201 (1983) (‘‘[I]t is not clearfrom the opinion itself that the state courtrelied upon an adequate and independentstate ground and TTT it fairly appears that thestate court rested its decision primarily onfederal law’’).



548 U.S. 766

not be S 765sure.34 But because a due pro-cess challenge to such a restriction of ob-servation evidence was, by our measure,neither pressed nor passed upon in theArizona Court of Appeals, we do not con-sider it. See, e.g., Kentucky v. Stincer,482 U.S. 730, 747, n. 22, 107 S.Ct. 2658, 96L.Ed.2d 631 (1987); Illinois v. Gates, 462U.S. 213, 217–224, 103 S.Ct. 2317, 76L.Ed.2d 527 (1983). What we do know,and now consider, is Clark’s claim thatMott denied due process because it ‘‘pre-clude[d] Eric from contending that TTTfactual inferences’’ of the ‘‘mental stateswhich were necessary elements of thecrime charged’’ ‘‘should not be drawn be-cause the behavior was explainable, in-stead, as a manifestation of his chronicparanoid schizophrenia.’’ Brief for Peti-tioner 13 (emphasis in original). We con-sider the claim, as Clark otherwise puts it,that ‘‘Arizona’s prohibition of ‘diminishedcapacity’ evidence by criminal defendantsviolates’’ due process, ibid.

DClark’s argument that the Mott rule vio-

lates the Fourteenth Amendment guaran-tee of due process turns on the applicationof the presumption of innocence in criminalcases, the presumption of sanity, and theprinciple that a criminal defendant is enti-tled to present relevant and favorable evi-dence on an element of the offensecharged against him.

S 7661[3] The first presumption is that a de-

fendant is innocent unless and until the

government proves beyond a reasonabledoubt each element of the offense charged,see Patterson, 432 U.S., at 210–211, 97S.Ct. 2319; In re Winship, 397 U.S. 358,361–364, 90 S.Ct. 1068, 25 L.Ed.2d 368(1970), including the mental element ormens rea. Before the last century, themens rea required to be proven for partic-ular offenses was often described in gener-al terms like ‘‘malice,’’ see, e.g., In re Ec-kart, 166 U.S. 481, 17 S.Ct. 638, 41 L.Ed.1085 (1897); 4 W. Blackstone, Commentar-ies *21 (‘‘[A]n unwarrantable act without avicious will is no crime at all’’), but themodern tendency has been toward morespecific descriptions, as shown in the Ari-zona statute defining the murder chargedagainst Clark: the State had to prove thatin acting to kill the victim, Clark intendedto kill a law enforcement officer on duty orknew that the victim was such an officeron duty. See generally Gardner, TheMens Rea Enigma: Observations on theRole of Motive in the Criminal Law Pastand Present, 1993 Utah L.Rev. 635. Asapplied to mens rea (and every other ele-ment), the force of the presumption ofinnocence is measured by the force of theshowing needed to overcome it, which isproof beyond a reasonable doubt that adefendant’s state of mind was in fact whatthe charge states. See Winship, supra, at361–363, 90 S.Ct. 1068.

2

[4] The presumption of sanity is equal-ly universal in some variety or other, being

34. We therefore have no reason to believe thatthe courts of Arizona would have failed torestrict their application of Mott to the profes-sional testimony the Mott opinion was statedto cover, if Clark’s counsel had specified anyobservation evidence he claimed to be gener-ally admissible and relevant to mens rea.Nothing that we hold here is authority forrestricting a factfinder’s consideration of ob-servation evidence indicating state of mind at

the time of a criminal offense (conventionalmens rea evidence) as distinct from profes-sional mental-disease or capacity evidence go-ing to ability to form a certain state of mindduring a period that includes the time of theoffense charged. And, of course, nothingheld here prevents Clark from raising thisdiscrete claim when the case returns to thecourts of Arizona, if consistent with theState’s procedural rules.



(at least) a presumption that a defendanthas the capacity to form the mens reanecessary for a verdict of guilt and theconsequent criminal responsibility. SeeLeland, 343 U.S., at 799, 72 S.Ct. 1002;Davis v. United States, 160 U.S. 469, 486–487, 16 S.Ct. 353, 40 L.Ed. 499 (1895);M’Naghten’s Case, 10 Cl. & Fin., at 210, 8Eng. Rep., at 722; see generally 1 LaFave,Substantive Criminal Law § 8.3(a), at 598–599, and n. 1. This presumption dispenseswith a requirement on the government’spart S 767to include as an element of everycriminal charge an allegation that the de-fendant had such a capacity.35 The forceof this presumption, like the presumptionof innocence, is measured by the quantumof evidence necessary to overcome it; un-like the presumption of innocence, howev-er, the force of the presumption of sanityvaries across the many state and federaljurisdictions, and prior law has recognizedconsiderable leeway on the part of thelegislative branch in defining the presump-tion’s strength through the kind of evi-dence and degree of persuasiveness neces-

sary to overcome it, see Fisher v. UnitedStates, 328 U.S. 463, 466–476, 66 S.Ct.1318, 90 L.Ed. 1382 (1946).36

There are two points where the sanityor capacity presumption may be placed inissue. First, a State may allow a defen-dant to introduce (and a factfinder to con-sider) evidence of mental disease or inca-pacity for the bearing it can have on thegovernment’s burden to show mens rea.See, e.g., State v. Perez, 882 A.2d 574, 584(R.I.2005).37 In such States the evidenceshowing incapacity to form the guilty stateof mind, for example, qualifies the proba-tive force of other evidence, which consid-ered alone indicates that the defendantactually formed the guilty state of mind.If it is shown that a defendant with mentaldisease thinks all blond people are robots,he could not have intended to kill a personwhen he shot a man with blond hair, eventhough he seemed S 768to act like a manshooting another man.38 In jurisdictionsthat allow mental-disease and capacity evi-dence to be considered on par with any

35. A legislature is nonetheless free to requireaffirmative proof of sanity by the way it de-scribes a criminal offense, see Dixon v. UnitedStates, ante, 548 U.S. 1, 126 S.Ct. 2437, 2443–2444, 165 L.Ed.2d 299, 2006 WL 1698998.

36. Although a desired evidentiary use is re-stricted, that is not equivalent to a Sandstrompresumption. See Sandstrom v. Montana,442 U.S. 510, 514–524, 99 S.Ct. 2450, 61L.Ed.2d 39 (1979) (due process forbids use ofpresumption that relieves the prosecution ofburden of proving mental state by inference ofintent from an act).

37. In fact, Oregon had this scheme in placewhen we decided Leland v. Oregon, 343 U.S.790, 794–796, 72 S.Ct. 1002, 96 L.Ed. 1302(1952). We do not, however, read any part ofLeland to require as a matter of due processthat evidence of incapacity be considered torebut the mens rea element of a crime.

38. We reject the State’s argument that mensrea and insanity, as currently understood, are

entirely distinguishable, so that mental-dis-ease and capacity evidence relevant to insani-ty is simply irrelevant to mens rea. Not onlydoes evidence accepted as showing insanitytrump mens rea, but evidence of behaviorclose to the time of the act charged mayindicate both the actual state of mind at thattime and also an enduring incapacity to formthe criminal state of mind necessary to theoffense charged. See Brief for American Psy-chiatric Association et al. as Amici Curiae 12–13; Arenella, The Diminished Capacity andDiminished Responsibility Defenses: TwoChildren of a Doomed Marriage, 77 Colum.L.Rev. 827, 834–835 (1977); cf. Powell v.Texas, 392 U.S. 514, 535–536, 88 S.Ct. 2145,20 L.Ed.2d 1254 (1968) (plurality opinion)(the ‘‘doctrines of actus reus, mens rea, insani-ty, mistake, justification, and duress’’ are a‘‘collection of interlocking and overlappingconcepts which the common law has utilizedto assess the moral accountability of an indi-vidual for his antisocial deeds’’).



548 U.S. 770

other relevant evidence when decidingwhether the prosecution has proven mensrea beyond a reasonable doubt, the evi-dence of mental disease or incapacity needonly support what the factfinder regardsas a reasonable doubt about the capacity toform (or the actual formation of) the mensrea, in order to require acquittal of thecharge. Thus, in these States the strengthof the presumption of sanity is no greaterthan the strength of the evidence of abnor-mal mental state that the factfinder thinksis enough to raise a reasonable doubt.

The second point where the force of thepresumption of sanity may be tested is inthe consideration of a defense of insanityraised by a defendant. Insanity rules likeM’Naghten and the variants discussed inPart II, supra, are attempts to define, orat least to indicate, the kinds of mentaldifferences that overcome the presumptionof sanity or capacity and therefore excusea defendant from customary criminal re-sponsibility, see Jones v. United States,463 U.S. 354, 373, n. 4, 103 S.Ct. 3043, 77L.Ed.2d 694 (1983) (Brennan, J., dissent-ing); D. Hermann, The Insanity Defense:Philosophical, Historical and Legal Per-spectives 4 (1983) (‘‘A central significanceof the insanity defense TTT S 769is the sepa-ration of nonblameworthy from blamewor-thy offenders’’), even if the prosecution hasotherwise overcome the presumption of in-nocence by convincing the factfinder of allthe elements charged beyond a reasonabledoubt. The burden that must be carriedby a defendant who raises the insanityissue, again, defines the strength of thesanity presumption. A State may provide,for example, that whenever the defendantraises a claim of insanity by some quantumof credible evidence, the presumption dis-

appears and the government must provesanity to a specified degree of certainty(whether beyond reasonable doubt orsomething less). See, e.g., Commonwealthv. Keita, 429 Mass. 843, 846, 712 N.E.2d65, 68 (1999). Or a jurisdiction may placethe burden of persuasion on a defendant toprove insanity as the applicable law de-fines it, whether by a preponderance of theevidence or to some more convincing de-gree, see Ariz.Rev.Stat. Ann. § 13–502(C)(West 2001); Leland, 343 U.S., at 798, 72S.Ct. 1002. In any case, the defendant’sburden defines the presumption of sanity,whether that burden be to burst a bubbleor to show something more.

3The third principle implicated by Clark’s

argument is a defendant’s right as a mat-ter of simple due process to present evi-dence favorable to himself on an elementthat must be proven to convict him.39 Asalready noted, evidence tending to showthat a defendant suffers from mental dis-ease and lacks capacity to form mens reais relevant to rebut evidence that he did infact form the required mens rea at thetime in question; this is the reason thatClark claims a right to require the factfin-der in this case to consider testimonyS 770about his mental illness and his incapac-ity directly, when weighing the persuasive-ness of other evidence tending to showmens rea, which the prosecution has theburden to prove.

[5] As Clark recognizes, however, theright to introduce relevant evidence can becurtailed if there is a good reason fordoing that. ‘‘While the Constitution TTTprohibits the exclusion of defense evidenceunder rules that serve no legitimate pur-

39. Clark’s argument assumes that Arizona’srule is a rule of evidence, rather than a redefi-nition of mens rea, see Montana v. Egelhoff,518 U.S. 37, 58–59, 116 S.Ct. 2013, 135L.Ed.2d 361 (1996) (GINSBURG, J., concur-

ring in judgment); id., at 71, 116 S.Ct. 2013(O’Connor, J., dissenting). We have no rea-son to view the rule otherwise, and on thisassumption, it does not violate due process,see infra, at 2733–2737.



pose or that are disproportionate to theends that they are asserted to promote,well-established rules of evidence permittrial judges to exclude evidence if its pro-bative value is outweighed by certain otherfactors such as unfair prejudice, confusionof the issues, or potential to mislead thejury.’’ Holmes v. South Carolina, 547U.S. 319, 326, 126 S.Ct. 1727, 1732, 164L.Ed.2d 503 (2006); see Crane v. Ken-tucky, 476 U.S. 683, 689–690, 106 S.Ct.2142, 90 L.Ed.2d 636 (1986) (permittingexclusion of evidence that ‘‘poses an unduerisk of ‘harassment, prejudice, [or] confu-sion of the issues’ ’’ (quoting Delaware v.Van Arsdall, 475 U.S. 673, 679, 106 S.Ct.1431, 89 L.Ed.2d 674 (1986))); see alsoEgelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135L.Ed.2d 361; Chambers v. Mississippi,410 U.S. 284, 302, 93 S.Ct. 1038, 35L.Ed.2d 297 (1973). And if evidence maybe kept out entirely, its consideration maybe subject to limitation, which Arizonaclaims the power to impose here. Statelaw says that evidence of mental diseaseand incapacity may be introduced and con-sidered, and if sufficiently forceful to satis-fy the defendant’s burden of proof underthe insanity rule it will displace the pre-sumption of sanity and excuse from crimi-nal responsibility. But mental-disease andcapacity evidence may be considered onlyfor its bearing on the insanity defense, andit will avail a defendant only if it is persua-sive enough to satisfy the defendant’s bur-den as defined by the terms of that de-fense. The mental-disease and capacityevidence is thus being channeled or re-stricted to one issue and given effect onlyif the defendant carries the burden to con-vince the factfinder of insanity; the evi-dence is not being excluded entirely, andthe question is whether reasons for requir-

ing it to be channeled and restricted aregood enough to S 771satisfy the standard offundamental fairness that due process re-quires. We think they are.

E

1The first reason supporting the Mott

rule is Arizona’s authority to define itspresumption of sanity (or capacity or re-sponsibility) by choosing an insanity defini-tion, as discussed in Part II, supra, and byplacing the burden of persuasion on defen-dants who claim incapacity as an excusefrom customary criminal responsibility.No one, certainly not Clark here, deniesthat a State may place a burden of persua-sion on a defendant claiming insanity, seeLeland, supra, at 797–799, 72 S.Ct. 1002(permitting a State, consistent with dueprocess, to require the defendant to bearthis burden). And Clark presses no objec-tion to Arizona’s decision to require per-suasion to a clear and convincing degreebefore the presumption of sanity and nor-mal responsibility is overcome. See Brieffor Petitioner 18, n. 25.

But if a State is to have this authority inpractice as well as in theory, it must beable to deny a defendant the opportunityto displace the presumption of sanity moreeasily when addressing a different issue inthe course of the criminal trial. Yet, as wehave explained, just such an opportunitywould be available if expert testimony ofmental disease and incapacity could beconsidered for whatever a factfinder mightthink it was worth on the issue of mensrea.40 As we mentioned, the presumptionof sanity would then be only as strong asthe evidence a factfinder would accept as

40. Cf. post, at 2739 (KENNEDY, J., dissent-ing) (‘‘The psychiatrist’s explanation ofClark’s condition was essential to understand-ing how he processes sensory data and there-

fore to deciding what information was in hismind at the time of the shooting. Simply put,knowledge relies on cognition, and cognitioncan be affected by schizophrenia’’).



548 U.S. 773

enough to raise a reasonable doubt aboutmens rea for the crime charged; oncereasonable doubt was found, acquittalwould S 772be required, and the standardsestablished for the defense of insanitywould go by the boards.

Now, a State is of course free to acceptsuch a possibility in its law. After all, it isfree to define the insanity defense bytreating the presumption of sanity as abursting bubble, whose disappearanceshifts the burden to the prosecution toprove sanity whenever a defendant pres-ents any credible evidence of mental dis-ease or incapacity. In States with thiskind of insanity rule, the legislature maywell be willing to allow such evidence to beconsidered on the mens rea element forwhatever the factfinder thinks it is worth.What counts for due process, however, issimply that a State that wishes to avoid asecond avenue for exploring capacity, lessstringent for a defendant, has a good rea-son for confining the consideration of evi-dence of mental disease and incapacity tothe insanity defense.

It is obvious that Arizona’s Mott rulereflects such a choice. The State SupremeCourt pointed out that the State had de-clined to adopt a defense of diminishedcapacity (allowing a jury to decide when toexcuse a defendant because of greaterthan normal difficulty in conforming to thelaw).41 The court reasoned that theState’s choice would be undercut if evi-dence of incapacity could be considered forS 773whatever a jury might think sufficientto raise a reasonable doubt about mensrea, even if it did not show insanity. 187Ariz., at 541, 931 P.2d, at 1051. In otherwords, if a jury were free to decide howmuch evidence of mental disease and inca-pacity was enough to counter evidence ofmens rea to the point of creating a reason-able doubt, that would in functional termsbe analogous to allowing jurors to decideupon some degree of diminished capacityto obey the law, a degree set by them, thatwould prevail as a stand-alone defense.42

2A State’s insistence on preserving its

chosen standard of legal insanity cannot be

41. Though the term ‘‘diminished capacity’’has been given different meanings, see, e.g.,Morse, Undiminished Confusion in Diminish-ed Capacity, 75 J.Crim. L. & C. 1 (1984)(‘‘The diminished capacity doctrine allows acriminal defendant to introduce evidence ofmental abnormality at trial either to negate amental element of the crime charged, there-by exonerating the defendant of that charge,or to reduce the degree of crime for whichthe defendant may be convicted, even if thedefendant’s conduct satisfied all the formalelements of a higher offense’’), California, ajurisdiction with which the concept has tra-ditionally been associated, understood it tobe simply a ‘‘ ‘showing that the defendant’smental capacity was reduced by mental ill-ness, mental defect or intoxication,’ ’’ Peoplev. Berry, 18 Cal.3d 509, 517, 134 Cal.Rptr.415, 556 P.2d 777, 781 (1976) (quoting Peo-ple v. Castillo, 70 Cal.2d 264, 270, 74 Cal.Rptr. 385, 449 P.2d 449, 452 (1969); empha-sis deleted), abrogated by Cal.Penal Code

Ann. §§ 25(a), 28(a)-(b), 29 (West 1999 andSupp.2006).

42. It is beyond question that Arizona maypreclude such a defense, see Fisher v. UnitedStates, 328 U.S. 463, 466–476, 66 S.Ct. 1318,90 L.Ed. 1382 (1946), and there is no doubtthat the Arizona Legislature meant to do so,see Ariz.Rev.Stat. Ann. § 13–502(A) (West2001) (‘‘Mental disease or defect does notinclude disorders that result from acute vol-untary intoxication or withdrawal from alco-hol or drugs, character defects, psychosexualdisorders or impulse control disorders. Con-ditions that do not constitute legal insanityinclude but are not limited to momentary,temporary conditions arising from the pres-sure of the circumstances, moral decadence,depravity or passion growing out of anger,jealousy, revenge, hatred or other motives ina person who does not suffer from a mentaldisease or defect or an abnormality that ismanifested only by criminal conduct’’).



the sole reason for a rule like Mott, howev-er, for it fails to answer an objection thedissent makes in this case. See post, at2742–2747 (opinion of KENNEDY, J.).An insanity rule gives a defendant alreadyfound guilty the opportunity to excuse hisconduct by showing he was insane when heacted, that is, that he did not have themental capacity for conventional guilt andcriminal responsibility. But, as the dissentargues, if the same evidence that affirma-tively shows he was not guilty by reason ofinsanity (or ‘‘guilty except insane’’ underArizona law, Ariz.Rev.Stat. Ann. § 13–502(A) (West 2001)) also shows it was atleast doubtful that he could form mensrea, then he should not be found guilty inthe first place; it thus violates due processwhen the State S 774impedes him from usingmental-disease and capacity evidence di-rectly to rebut the prosecution’s evidencethat he did form mens rea.

Are there, then, characteristics of men-tal-disease and capacity evidence givingrise to risks that may reasonably behedged by channeling the consideration ofsuch evidence to the insanity issue onwhich, in States like Arizona, a defendanthas the burden of persuasion? We thinkthere are: in the controversial character ofsome categories of mental disease, in thepotential of mental-disease evidence tomislead, and in the danger of accordinggreater certainty to capacity evidence thanexperts claim for it.

To begin with, the diagnosis may maskvigorous debate within the professionabout the very contours of the mental dis-ease itself. See, e.g., American PsychiatricAssociation, Diagnostic and StatisticalManual of Mental Disorders xxxiii (4th ed.text rev.2000) (hereinafter DSM–IV–TR)(‘‘DSM–IV reflects a consensus about theclassification and diagnosis of mental dis-orders derived at the time of its initial

publication. New knowledge generated byresearch or clinical experience will un-doubtedly lead to an increased understand-ing of the disorders included in DSM–IV,to the identification of new disorders, andto the removal of some disorders in futureclassifications. The text and criteria setsincluded in DSM–IV will require reconsid-eration in light of evolving new informa-tion’’); P. Caplan, They Say You’re Crazy:How the World’s Most Powerful Psychia-trists Decide Who’s Normal (1995) (criti-cism by former consultant to the DSMagainst some of the DSM’s categories).And Members of this Court have previous-ly recognized that the end of such debateis not imminent. See Jones, 463 U.S., at365, n. 13, 103 S.Ct. 3043 (‘‘ ‘The onlycertain thing that can be said about thepresent state of knowledge and therapyregarding mental disease is that sciencehas not reached finality of judgment’ ’’(quoting Greenwood v. United States, 350U.S. 366, 375, 76 S.Ct. 410, 100 L.Ed. 412(1956))); Powell v. Texas, 392 U.S. 514,537, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968)(plurality opinion) (‘‘It S 775is simply not yetthe time to write into the Constitutionformulas cast in terms whose meaning, letalone relevance, is not yet clear TTT todoctors’’). Though we certainly do not‘‘condem[n mental-disease evidence] whole-sale,’’ Brief for American Psychiatric Asso-ciation et al. as Amici Curiae 15, the con-sequence of this professional ferment is ageneral caution in treating psychologicalclassifications as predicates for excusingotherwise criminal conduct.

Next, there is the potential of mental-disease evidence to mislead jurors (whenthey are the factfinders) through the pow-er of this kind of evidence to suggest thata defendant suffering from a recognizedmental disease lacks cognitive, moral, voli-tional, or other capacity, when that maynot be a sound conclusion at all. Evenwhen a category of mental disease is



548 U.S. 777

broadly accepted and the assignment of adefendant’s behavior to that category isuncontroversial, the classification may sug-gest something very significant about adefendant’s capacity, when in fact the clas-sification tells us little or nothing aboutthe ability of the defendant to form mensrea or to exercise the cognitive, moral, orvolitional capacities that define legal sani-ty.43 See DSM–IV–TR xxxii-xxxiii (‘‘Whenthe DSM–IV categories, criteria, and tex-tual descriptions are employed for forensicpurposes, there are significant risks thatdiagnostic information will be misused ormisunderstood. These dangers arise be-cause of the imperfect fit between thequestions of ultimate concern to the lawand the information contained in a clinicaldiagnosis. In most situations, the clinicaldiagnosis of a DSM–IV mental disorder isnot sufficient to establish the existence forlegal S 776purposes of TTT ‘mental diseas[e]’or ‘mental defect.’ In determining wheth-er an individual meets a specified legalstandard (e.g., for TTT criminal responsibil-ity TTT), additional information is usuallyrequired beyond that contained in theDSM–IV diagnosis’’). The limits of theutility of a professional disease diagnosisare evident in the dispute between the twotestifying experts in this case; they agreethat Clark was schizophrenic, but theycome to opposite conclusions on whetherthe mental disease in his particular caseleft him bereft of cognitive or moral capac-ity. Evidence of mental disease, then, caneasily mislead; it is very easy to slidefrom evidence that an individual with aprofessionally recognized mental disease isvery different, into doubting that he hasthe capacity to form mens rea, whereas

that doubt may not be justified. And ofcourse, in the cases mentioned before, inwhich the categorization is doubtful or thecategory of mental disease is itself subjectto controversy, the risks are even greaterthat opinions about mental disease mayconfuse a jury into thinking the opinionsshow more than they do. Because allow-ing mental-disease evidence on mens reacan thus easily mislead, it is not unreason-able to address that tendency by confiningconsideration of this kind of evidence toinsanity, on which a defendant may beassigned the burden of persuasion.

There are, finally, particular risks inher-ent in the opinions of the experts whosupplement the mental-disease classifica-tions with opinions on incapacity: onwhether the mental disease rendered aparticular defendant incapable of the cog-nition necessary for moral judgment ormens rea or otherwise incapable of under-standing the wrongfulness of the conductcharged. Unlike observational evidencebearing on mens rea, capacity evidenceconsists of judgment, and judgmentfraught with multiple perils: a defendant’sstate of mind at the crucial moment can beelusive no matter how conscientious theenquiry, and the law’s categories that setthe terms of the capacity judgment are notthe categories of psychology S 777that governthe expert’s professional thinking. Al-though such capacity judgments may begiven in the utmost good faith, their poten-tially tenuous character is indicated by thecandor of the defense expert in this verycase. Contrary to the State’s expert, hetestified that Clark lacked the capacity to

43. Our observation about the impact of men-tal-disease evidence on understandings of ca-pacity in no way undermines the assertion bythe American Psychiatric Association, theAmerican Psychological Association, and theAmerican Academy of Psychiatry in this case

that ‘‘[e]xpert evidence of mental disordersTTT is TTT relevant to the mental-state issuesraised by mens rea requirements,’’ Brief forAmerican Psychiatric Association et al. as Am-ici Curiae 15.



appreciate the circumstances realisticallyand to understand the wrongfulness ofwhat he was doing, App. 48–49, but he saidthat ‘‘no one knows exactly what was on[his] mind’’ at the time of the shooting, id.,at 48. And even when an expert is confi-dent that his understanding of the mind isreliable, judgment addressing the basiccategories of capacity requires a leap fromthe concepts of psychology, which are de-vised for thinking about treatment, to theconcepts of legal sanity, which are devisedfor thinking about criminal responsibility.See Insanity Defense Work Group, Ameri-can Psychiatric Association Statement onthe Insanity Defense, 140 Am. J. Psychia-try 681, 686 (1983), reprinted in 2 The Roleof Mental Illness in Criminal Trials 117,122 (J. Moriarty ed. 2001) (‘‘The Ameri-can Psychiatric Association is not opposedto legislatures restricting psychiatric testi-mony about the TTT ultimate legal issuesconcerning the insanity defense TTT. WhenTTT ‘ultimate issue’ questions are formulat-ed by the law and put to the expert wit-ness who must then say ‘yea’ or ‘nay,’ thenthe expert witness is required to make aleap in logic. He no longer addresseshimself to medical concepts but insteadmust infer or intuit what is in fact un-speakable, namely, the probable relation-ship between medical concepts and legalor moral constructs such as free will.These impermissible leaps in logic madeby expert witnesses confuse the juryTTTTThis state of affairs does considerable in-justice to psychiatry and, we believe, possi-bly to criminal defendants. These psychi-atric disagreements TTT cause less thanfully understanding juries or the public toconclude that psychiatrists cannot agree.In fact, in many criminal insanity trials

both prosecution and defense psychiatristsdo agree about the nature and even theextent of mental disorder ex Shibited778 bythe defendant at the time of the act’’ (em-phasis in original; footnote omitted));DSM–IV–TR xxxii-xxxiii; P. Giannelli &E. Imwinkelried, Scientific Evidence § 9–3(B), p. 286 (1986) (‘‘[N]o matter how thetest for insanity is phrased, a psychiatristor psychologist is no more qualified thanany other person to give an opinion aboutwhether a particular defendant’s mentalcondition satisfies the legal test for insani-ty’’); cf. R. Slovenko, Psychiatry andCriminal Culpability 55 (1995) (‘‘The scopeof the DSM is wide-ranging and includes‘conduct disorders’ but ‘evil’ is not men-tioned’’). In sum, these empirical and con-ceptual problems add up to a real risk thatan expert’s judgment in giving capacityevidence will come with an apparent au-thority that psychologists and psychiatristsdo not claim to have. We think that thisrisk, like the difficulty in assessing thesignificance of mental-disease evidence,supports the State’s decision to channelsuch expert testimony to consideration onthe insanity defense, on which the partyseeking the benefit of this evidence has theburden of persuasion.

It bears repeating that not every Statewill find it worthwhile to make the judg-ment Arizona has made, and the choicesthe States do make about dealing with therisks posed by mental-disease and capacityevidence will reflect their varying assess-ments about the presumption of sanity asexpressed in choices of insanity rules.44

The point here simply is that Arizona hassensible reasons to assign the risks as ithas done by channeling the evidence.45

44. A State in which the burden of persuasionas to a defendant’s sanity lies with the prose-cution might also be justified in restrictingmental-disease and capacity evidence to in-sanity determinations owing to the potential

of mental-disease evidence to mislead and therisk of misjudgment inherent in capacity evi-dence. We need not, in the context of thiscase, address that issue.



548 U.S. 780

S 779F

Arizona’s rule serves to preserve theState’s chosen standard for recognizing in-sanity as a defense and to avoid confusionand misunderstanding on the part of ju-rors.46 For these reasons, there is noviolation of due process under Chambersand its progeny, and no cause to claim thatchanneling evidence on mental disease andcapacity offends any ‘‘ ‘principle of justiceso rooted in the traditions and conscienceof our people as to be ranked as funda-mental,’ ’’ Patterson, 432 U.S., at 202, 97S.Ct. 2319 (quoting Speiser, 357 U.S., at523, 78 S.Ct. 1332).

* * *

The judgment of the Court of Appeals ofArizona is, accordingly, affirmed.

It is so ordered.

Justice BREYER, concurring in partand dissenting in part.

As I understand the Court’s opinion, itdistinguishes among three categories ofevidence related to insanity: (1) fact-relat-ed evidence as to the defendant’s specificstate of mind at the time of the crime, e.g.,evidence that shows he S 780thought the po-liceman was not a human being; (2) expert

opinion evidence that the defendant suf-fered from a mental disease that wouldhave affected his capacity to form an in-tent to kill a policeman, e.g., that he suffersfrom a disease of a kind where powerfulvoices command the sufferer to kill; and(3) expert opinion evidence that the defen-dant was legally insane, e.g., evidence thathe did not know right from wrong. Ante,at 2724–2726.

I agree with the Court’s basic categori-zation. I also agree that the Constitutionpermits a State to provide for consider-ation of the second and third types ofevidence solely in conjunction with the in-sanity defense. A State might reasonablyfear that, without such a rule, the types ofevidence as to intent would become con-fused in the jury’s mind, indeed that insome cases the insanity question woulddisplace the intent question as the partieslitigate both simultaneously.

Nonetheless, I believe the distinctionamong these kinds of evidence will be un-clear in some cases. And though I acceptthe majority’s reading of the record, Iremain concerned as to whether the lowercourts, in setting forth and applying Statev. Mott, 187 Ariz. 536, 931 P.2d 1046, cert.denied, 520 U.S. 1234, 117 S.Ct. 1832, 137

45. Arizona’s rule is supported by a furtherpractical reason, though not as weighty asthose just considered. As mentioned before,if substantial mental-disease and capacity evi-dence is accepted as rebutting mens rea in agiven case, the affirmative defense of insanitywill probably not be reached or ruled upon;the defendant will simply be acquitted (orperhaps convicted of a lesser included of-fense). If an acquitted defendant suffers froma mental disease or defect that makes himdangerous, he will neither be confined nortreated psychiatrically unless a judge so or-ders after some independent commitmentproceeding. But if a defendant succeeds inshowing himself insane, Arizona law (andpresumably that of every other State with an

insanity rule) will require commitment andtreatment as a consequence of that findingwithout more. It makes sense, then, to chan-nel capacity evidence to the issue structuredto deal with mental incapacity when such aclaim is raised successfully. See, e.g., Jones,463 U.S., at 368, 103 S.Ct. 3043 (‘‘The pur-pose of commitment following an insanity ac-quittal TTT is to treat the individual’s mentalillness and protect him and society from hispotential dangerousness’’).

46. The rule also deals in a practical way withthose whose insanity has been shown to makethem dangerous to others. See n. 45, supra.



L.Ed.2d 1038 (1997), focused with suffi-cient directness and precision upon thedistinction.

Consequently, I would remand this caseso that Arizona’s courts can determinewhether Arizona law, as set forth in Mottand other cases, is consistent with thedistinction the Court draws and whetherthe trial court so applied Arizona law here.I would also reserve the question (as Ibelieve the Court has done) as to the bur-den of persuasion in a case where thedefendant produces sufficient evidence ofthe second kind as to raise a reasonabledoubt that he suffered from a mental ill-ness so severe as to prevent him fromforming any relevant intent at all.

For this reason, I dissent only fromParts III–B and III–C of the Court’s opin-ion and the ultimate disposition of thiscase, and I join the remainder.

Justice KENNEDY, with whom JusticeSTEVENS and Justice GINSBURG join,dissenting.

S 781In my submission the Court is incor-rect in holding that Arizona may convictpetitioner Eric Clark of first-degree mur-der for the intentional or knowing killingof a police officer when Clark was notpermitted to introduce critical and reliableevidence showing he did not have thatintent or knowledge. The Court is wrong,too, when it concludes the issue cannot bereached because of an error by Clark’scounsel. Its reasons and conclusions leadme to file this respectful dissent.

Since I would reverse the judgment ofthe Arizona Court of Appeals on thisground, and the Arizona courts might wellalter their interpretation of the State’scriminal responsibility statute were my ra-tionale to prevail, it is unnecessary for meto address the argument that Arizona’sdefinition of insanity violates due process.

IClark claims that the trial court erred in

refusing to consider evidence of his chronicparanoid schizophrenia in deciding wheth-er he possessed the knowledge or intentrequired for first-degree murder. Seizingupon a theory invented here by the Courtitself, the Court narrows Clark’s claim sohe cannot raise the point everyone elsethought was involved in the case. TheCourt says the only issue before us iswhether there is a right to introduce men-tal-disease evidence or capacity evidence,not a right to introduce observation evi-dence. See ante, at 2724–2729. This re-structured evidentiary universe, with noconvincing authority to support it, is un-workable on its own terms. Even werethat not so, however, the Court’s tripartitestructure is something not addressed bythe state trial court, the state appellatecourt, counsel on either side in those pro-ceedings, or the briefs the parties filedwith us. The Court refuses to considerthe key part of Clark’s claim because hiscounsel did S 782not predict the Court’s owninvention. It is unrealistic, and most un-fair, to hold that Clark’s counsel erred infailing to anticipate so novel an approach.If the Court is to insist on its approach, ata minimum the case should be remandedto determine whether Clark is bound byhis counsel’s purported waiver.

The Court’s error, of course, has signifi-cance beyond this case. It adopts an evi-dentiary framework that, in my view, willbe unworkable in many cases. The Courtclassifies Clark’s behavior and expressedbeliefs as observation evidence but insiststhat its description by experts must bemental-disease evidence or capacity evi-dence. See ante, at 2724–2726. Thesecategories break down quickly when it isunderstood how the testimony would applyto the question of intent and knowledge atissue here. The most common type ofschizophrenia, and the one Clark suffered



548 U.S. 784

from, is paranoid schizophrenia. See P.Berner et al., Diagnostic Criteria for Func-tional Psychoses 37 (2d ed.1992). The ex-istence of this functional psychosis is be-yond dispute, but that does not mean thelay witness understands it or that a disput-ed issue of fact concerning its effect in aparticular instance is not something for theexpert to address. Common symptoms ofthe condition are delusions accompanied byhallucinations, often of the auditory type,which can cause disturbances of percep-tion. Ibid. Clark’s expert testified thatpeople with schizophrenia often play radiosloudly to drown out the voices in theirheads. See App. 32. Clark’s attorney ar-gued to the trial court that this, ratherthan a desire to lure a policeman to thescene, explained Clark’s behavior just be-fore the killing. Id., at 294–295. Theobservation that schizophrenics play radiosloudly is a fact regarding behavior, but itis only a relevant fact if Clark has schizo-phrenia.

Even if this evidence were, to use theCourt’s term, mental-disease evidence, be-cause it relies on an expert opinion, whatwould happen if the expert simply were totestify, without mentioning schizophrenia,that people with Clark’s S 783symptoms oftenplay the radio loudly? This seems to befactual evidence, as the term is defined bythe Court, yet it differs from mental-dis-ease evidence only in forcing the witnessto pretend that no one has yet come upwith a way to classify the set of symptomsbeing described. More generally, theopinion that Clark had paranoid schizo-phrenia—an opinion shared by experts forboth the prosecution and defense—bearson efforts to determine, as a factual mat-ter, whether he knew he was killing apolice officer. The psychiatrist’s explana-tion of Clark’s condition was essential tounderstanding how he processes sensorydata and therefore to deciding what infor-mation was in his mind at the time of the

shooting. Simply put, knowledge relies oncognition, and cognition can be affected byschizophrenia. See American PsychiatricAssociation, Diagnostic and StatisticalManual of Mental Disorders 299 (4th ed.text rev. 2000) (‘‘The characteristic symp-toms of Schizophrenia involve a range ofcognitive and emotional dysfunctions thatinclude perception’’); ibid. (Symptoms in-clude delusions, which are ‘‘erroneous be-liefs that usually involve a misinterpreta-tion of perceptions or experiences’’). Themental-disease evidence at trial was alsointertwined with the observation evidencebecause it lent needed credibility. Clark’sparents and friends testified Clark thoughtthe people in his town were aliens tryingto kill him. These claims might not bebelievable without a psychiatrist confirm-ing the story based on his experience withpeople who have exhibited similar behav-iors. It makes little sense to divorce theobservation evidence from the explanationthat makes it comprehensible.

Assuming the Court’s tripartite struc-ture were feasible, the Court is incorrectwhen it narrows Clark’s claim to excludeany concern about observation evidence.In deciding Clark’s counsel failed to raisethis issue, the Court relies on a series ofperceived ambiguities regarding how theclaim fits within the Court’s own catego-ries. See ante, at 2726–2729. The Courtcites no precedent for construing theseambiguities against the claimant and noprudential reason for ignorSing784 thebreadth of Clark’s claim. It is particularlysurprising that the Court does so to thedetriment of a criminal defendant assert-ing the fundamental challenge that thetrier of fact refused to consider criticalevidence showing he is innocent of thecrime charged.

The alleged ambiguities are, in anyevent, illusory. The evidence at trial ad-dressed more than the question of general



incapacity or opinions regarding mentalillness; it went further, as it included so-called observation evidence relevant toClark’s mental state at the moment heshot the officer. There was testimony, forexample, that Clark thought the people inhis town, particularly government officials,were not human beings but aliens whowere trying to kill him. See App. 119–121,131–132, 192–197, 249–256; Tr. of BenchTrial in No. CR 2000–538, pp. 110–112,131–132, 136, 226–228 (Aug. 20, 2003); id.,at 24–25, 59–60 (Aug. 21, 2003). TheCourt recognizes the existence of this es-sential observation evidence. See ante, at2724–2726.

The Court holds, nonetheless, that ‘‘wecannot be sure’’ whether the trial courtfailed to consider this evidence. Ante, at2728–2729. It is true the trial court rulingwas not perfectly clear. Its language doesstrongly suggest, though, that it did notconsider any of this testimony in decidingwhether Clark had the knowledge or in-tent required for first-degree murder. Af-ter recognizing that ‘‘much of the evidencethat [the defense is] going to be submit-ting, in fact all of it, as far as I know TTTthat has to do with the insanity could alsoarguably be made TTT as to form andintent and his capacity for the intent,’’ thecourt concluded ‘‘we will be focusing, as faras I’m concerned, strictly on the insanitydefense.’’ App. 9. In announcing its ver-dict, the trial court did not mention any ofthe mental-illness evidence, observation orotherwise, in deciding Clark’s guilt. Id., at331–335. The most reasonable assump-tion, then, would seem to be that the trialcourt did not consider it, and the Courtdoes not hold otherwise. See ante, at2726.S 785Clark’s objection to this refusal bythe trier of fact to consider the evidence asit bore on his key defense was made at allstages of the proceeding. In his post-trial

motion to vacate the judgment, Clark ar-gued that ‘‘prohibiting consideration ofany evidence reflecting upon a mentally illcriminal defendant’s ability to form thenecessary mens rea violates due process.’’Record, Doc. 406, p. 8. Clark pressed thesame argument in the Arizona Court ofAppeals. See Appellant’s Opening Brief inNo. 1CA–CR–03–0851 etc., pp. 46–52(hereinafter Appellant’s Opening Brief).He also noted that the trial judge haderred in refusing to consider nonexperttestimony—presumably what the Courtwould call observation evidence—onClark’s mental illness. Id., at 47–48 (‘‘Thetrial court therefore violated [Clark’s]right to present a defense because [the]court refused to consider any evidence,including the multiple testimonials of laywitnesses TTT in deciding whether he couldform the requisite mens rea ’’). The ap-peals court decided the issue on the mer-its, holding that the trial court was correctnot to consider the evidence of mentalillness in determining whether Clark hadthe mens rea for first-degree murder.See App. 351–353. It offered no distinc-tion at all between observation or mental-disease evidence.

Notwithstanding the appeals court’s de-cision, the Court states that the issue wasnot clearly presented to the state courts.See ante, at 2727–2729. According to theCourt, Clark only raised an objectionbased on State v. Mott, 187 Ariz. 536, 931P.2d 1046 (1997), cert. denied, 520 U.S.1234, 117 S.Ct. 1832, 137 L.Ed.2d 1038(1997), see ante, at 2727–2729, and Mott’sholding was limited to the exclusion ofmental-disease and capacity evidence, seeante, at 2726. The Court is incorrect, andon both counts.

First, Clark’s claim goes well beyond anobjection to Mott. In fact, he specificallyattempted to distinguish Mott by notingthat the trial court in this case refused toconsider all evidence of mental illness.See Record, Doc. 406, at 8; see S 786also



548 U.S. 787

Appellant’s Opening Brief 48. The Courtnotices these arguments but criticizesClark’s counsel for not being specific aboutthe observation evidence he wanted thetrial court to consider. See ante, at 2727–2728. There was no reason, though, forClark’s counsel to believe additional speci-ficity was required, since there was noevident distinction in Arizona law betweenobservation evidence and mental-diseasetestimony.

Second, Mott’s holding was not restrict-ed to mental-disease evidence. The Ari-zona Supreme Court did not refer to anydistinction between observation and men-tal-disease evidence, or lay and expert tes-timony. Its holding was stated in broadterms: ‘‘Arizona does not allow evidence ofa defendant’s mental disorder short of in-sanity either as an affirmative defense orto negate the mens rea element of acrime.’’ 187 Ariz., at 541, 931 P.2d, at1051; see id., at 540, 931 P.2d, at 1050(‘‘The legislature’s decision TTT evidencesits rejection of the use of psychologicaltestimony to challenge the mens rea ele-ment of a crime’’). The Court attempts todivine a fact/opinion distinction in Mottbased on Mott’s distinguishing a case,State v. Christensen, 129 Ariz. 32, 628 P.2d580 (1981), where evidence about behavior-al tendencies was deemed admissible. Seeante, at 2726. Christensen, though, alsoaddressed an expert opinion; the differ-ence was that the evidence there con-cerned a ‘‘character trait of acting reflex-ively in response to stress,’’ not a mentalillness. Mott, supra, at 544, 931 P.2d, at1054. Since the Court recognizes the Ari-zona Court of Appeals relied on Mott, theexpansive rule of exclusion in Mott—with-out any suggestion of a limitation depend-ing on the kind of evidence—should sufficefor us to reach the so-called observation-evidence issue. Even if, as the Court con-tends, see ante, at 2724, Mott is limited toexpert testimony, the Court’s categories

still do not properly interpret Mott, be-cause the Court’s own definition of obser-vation evidence includes some expert testi-mony, see ante, at 2724–2725.

It makes no difference that in the ap-peals court Clark referred to the issue asinability to form knowledge or intent.S 787See Appellant’s Opening Brief 46–52.He did not insist on some vague, generalincapacity. He stated, instead, that he‘‘suffered from a major mental illness andwas psychotic at the time of the offense.’’Id., at 48. Even if Clark’s argumentswere insufficient to apprise the state courtof the argument, ‘‘[o]ur traditional rule isthat ‘[o]nce a federal claim is properlypresented, a party can make any argumentin support of that claim; parties are notlimited to the precise arguments theymade below.’ ’’ Lebron v. National Rail-road Passenger Corporation, 513 U.S. 374,379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995)(quoting Yee v. Escondido, 503 U.S. 519,534, 112 S.Ct. 1522, 118 L.Ed.2d 153(1992)). The claim is clear. Though itseems to be obscure to this Court, it wasunderstood by the Arizona Court of Ap-peals, which stated: ‘‘Clark argues thatthe trial court erred in refusing to considerevidence of his mental disease or defect indetermining whether he had the requisitemens rea to commit first-degree murder.’’App. 351. When the question is what thestate court held, it is not instructive forthis Court to recast the words the statecourt used.

The razor-thin distinction the Courtdraws between evidence being used toshow incapacity and evidence being usedto show lack of mens rea directly does notidentify two different claims. Clark’s sin-gle claim, however characterized, involvesthe use of the same mental-illness evidenceto decide whether he had the requisiteknowledge or intent. The various ways inwhich the evidence is relevant in disprov-



ing mens rea hardly qualify as separateclaims. The new arguments allowed inLebron and Yee, by comparison, were farmore disconnected from the initial basesfor the alleged violations. See Lebron,supra, at 378, 379, 115 S.Ct. 961 (for pur-poses of showing state action, petitionercould argue that Amtrak was a Govern-ment entity even though he argued belowonly that it was a private entity with closeconnections to Government entities, be-cause the claim was simply ‘‘that Amtrakdid not accord him the rights it wasobliged to provide by the First Amend-ment’’); Yee, supra, at 534, 535, 112 S.Ct.1522 (petitioners S 788could argue that anordinance constituted a regulatory taking,even though they arguably asserted in theCourt of Appeals only a physical taking,because the claim was simply ‘‘that theordinance effects an unconstitutional tak-ing’’). If we give this latitude to litigantsin civil cases, surely we must do so here.Furthermore, to the extent any ambiguityremains on whether the claim was raised,the proper course is to remand. SeeBradshaw v. Richey, 546 U.S. 74, 80, 126S.Ct. 602, 605, 163 L.Ed.2d 407 (2005) (percuriam). Unless the state court clearlydecides an issue on state-law grounds,which the Court does not contend occurredhere, there is no bar to our review of thefederal question. See Harris v. Reed, 489U.S. 255, 261–262, 109 S.Ct. 1038, 103L.Ed.2d 308 (1989).

Before this Court Clark framed the is-sue in broad terms that encompass thequestion whether the evidence of his men-tal illness should have been considered toshow he did not at the time of the offensehave the knowledge or intent to shoot apolice officer. See Brief for Petitioner i(‘‘Questions Presented for Review (1)Whether Arizona’s blanket exclusion of ev-idence and refusal to consider mental dis-ease or defect to rebut the state’s evidenceon the element of mens rea violated Peti-

tioner’s right to due process under theUnited States Constitution, FourteenthAmendment?’’), 22 (‘‘Here, the trial courtheld that under the Mott rule it wasobliged to find as a fact that [Clark] knewhe was shooting a police officer to death—a necessary factual element of the onlyform of first degree murder chargedagainst [Clark]—while simultaneously re-fusing to consider [Clark’s] evidence thatan acute episode of his chronic paranoidschizophrenic illness prevented him fromactually having that knowledge’’ (emphasisdeleted)), 31–32 (the Arizona courts erredin holding Clark ‘‘could be punished asthough he had this knowledge and intentalthough he may not in fact have hadeither’’); Reply Brief for Petitioner 3(challenging the trial judge’s refusal ‘‘togive any consideration to the mental-illnessevidence in making his factual findings asto whether S 789[Clark] did or did not actwith the state of mind required for a first-degree murder conviction’’). An entiresection of Clark’s opening brief arguesthat the evidence of mental illness shouldhave been considered to rebut the prosecu-tion’s inference of knowledge or intentfrom the factual circumstances of thecrime. See Brief for Petitioner 13–21.This line of argument concerns facts ofbehavior and amounts to more than aclaim of general incapacity.

Clark seeks resolution of issues that canbe complex and somewhat overlapping. Inthe end, however, we must decide whetherhe had the right to introduce evidenceshowing he lacked the intent or knowledgethe statute itself sets forth in describing abasic element of the crime. Clark haspreserved this issue at all stages, includingin this Court.

IIClark was charged with first-degree

murder for the shooting of Officer Jeffrey



548 U.S. 791

Moritz. ‘‘A person commits first-degreemurder if,’’ as relevant here, ‘‘[i]ntendingor knowing that the person’s conduct willcause death to a law enforcement officer,the person causes the death of a law en-forcement officer who is in the line ofduty.’’ Ariz.Rev.Stat. Ann. § 13–1105(A)(3) (West Supp.2005). Clark chal-lenges the trial court’s refusal to considerany evidence of mental illness, from lay orexpert testimony, in determining whetherhe acted with the knowledge or intentelement of the crime. See App. 9; seealso Mott, 187 Ariz., at 541, 931 P.2d, at1051.

States have substantial latitude underthe Constitution to define rules for theexclusion of evidence and to apply thoserules to criminal defendants. See UnitedStates v. Scheffer, 523 U.S. 303, 308, 118S.Ct. 1261, 140 L.Ed.2d 413 (1998). Thisauthority, however, has constitutional lim-its. ‘‘ ‘Whether rooted directly in the DueProcess Clause of the Fourteenth Amend-ment or in the Compulsory Process orConfrontation Clauses of the Sixth Amend-ment, the Constitution guarantees criminaldefendants ‘‘a meaningful opportunity topresent a complete deSfense.’’ ’ ’’790 Holmesv. South Carolina, 547 U.S. 319, 324, 126S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006)(quoting Crane v. Kentucky, 476 U.S. 683,690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986),in turn quoting California v. Trombetta,467 U.S. 479, 485, 104 S.Ct. 2528, 81L.Ed.2d 413 (1984)). ‘‘This right isabridged by evidence rules that ‘infring[e]upon a weighty interest of the accused’and are ‘‘arbitrary’’ or ‘‘disproportionate tothe purposes they are designed toserve.’’ ’ ’’ Holmes, supra, at 324, 126 S.Ct.,at 1731 (quoting Scheffer, supra, at 308,118 S.Ct. 1261, in turn citing and quotingRock v. Arkansas, 483 U.S. 44, 58, 56, 107S.Ct. 2704, 97 L.Ed.2d 37 (1987)).

The central theory of Clark’s defensewas that his schizophrenia made him delu-sional. He lived in a universe where thedelusions were so dominant, the theorywas, that he had no intent to shoot a policeofficer or knowledge he was doing so. Itis one thing to say he acted with intent orknowledge to pull the trigger. It is quiteanother to say he pulled the trigger to killsomeone he knew to be a human being anda police officer. If the trier of fact were tofind Clark’s evidence sufficient to discountthe case made by the State, which has theburden to prove knowledge or intent as anelement of the offense, Clark would not beguilty of first-degree murder under Ari-zona law.

The Court attempts to diminish Clark’sinterest by treating mental-illness evidenceas concerning only ‘‘judgment,’’ ratherthan fact. Ante, at 2735–2736. This viewappears to derive from the Court’s charac-terization of Clark’s claim as raising onlygeneral incapacity. See ibid. This iswrong for the reasons already discussed.It fails to recognize, moreover, the mean-ing of the offense element in question here.The mens rea element of intent or knowl-edge may, at some level, comprise certainmoral choices, but it rests in the firstinstance on a factual determination. Thatis the fact Clark sought to put in issue.Either Clark knew he was killing a policeofficer or he did not.

The issue is not, as the Court insists,whether Clark’s mental illness acts as an‘‘excuse from customary criminal responsi-bility,’’ ante, at 2732, but whether his men-tal illness, as S 791a factual matter, made himunaware that he was shooting a policeofficer. If it did, Clark needs no excuse,as then he did not commit the crime asArizona defines it. For the elements offirst-degree murder, where the question isknowledge of particular facts—that one iskilling a police officer—the determination



depends not on moral responsibility but onempirical fact. Clark’s evidence of mentalillness had a direct and substantial bearingupon what he knew, or thought he knew,to be the facts when he pulled the trigger;this lay at the heart of the matter.

The trial court’s exclusion was all themore severe because it barred from con-sideration on the issue of mens rea all thisevidence, from any source, thus preventingClark from showing he did not commit thecrime as defined by Arizona law. Quiteapart from due process principles, we haveheld that a bar of this sort can be inconsis-tent with the Confrontation Clause. SeeDelaware v. Van Arsdall, 475 U.S. 673, 106S.Ct. 1431, 89 L.Ed.2d 674 (1986). In VanArsdall the Court held a state court erredin making a ruling that ‘‘prohibited allinquiry into’’ an event. Id., at 679, 106S.Ct. 1431. At issue was a line of defensequestioning designed to show the bias of aprosecution witness. In the instant casethe ruling in question bars from consider-ation all testimony from all witnesses nec-essary to present the argument that wascentral to the whole case for the defense:a challenge to the State’s own proof on anelement of the crime. The Due Processand Compulsory Process Clauses, and notthe Confrontation Clause, may be the con-trolling standard; but the disability im-posed on the accused is every bit as sub-stantial and pervasive here as it was inVan Arsdall.

Arizona’s rule is problematic because itexcludes evidence no matter how credibleand material it may be in disproving anelement of the offense. The Court’s caseshave noted the potential arbitrariness ofper se exclusions and, on this rationale,have invalidated various state prohibitions.See Holmes, supra, at 329, 126 S.Ct., at1734 (rule excluding, in certain cases, evi-dence that a third party may have commit-ted the crime S 792‘‘even if that evidence, if

viewed independently, would have greatprobative value and even if it would notpose an undue risk of harassment, preju-dice, or confusion of the issues’’); Rock,supra, at 56, 107 S.Ct. 2704 (rule excludingall hypnotically refreshed testimony ‘‘oper-ates to the detriment of any defendant whoundergoes hypnosis, without regard to thereasons for it, the circumstances underwhich it took place, or any independentverification of the information it pro-duced’’); Washington v. Texas, 388 U.S.14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019(1967) (rule excluding accomplice testimo-ny ‘‘prevent[s] whole categories of defensewitnesses from testifying on the basis of apriori categories that presume them un-worthy of belief’’).

This is not to suggest all general ruleson the exclusion of certain types of evi-dence are invalid. If the rule does notsubstantially burden the defense, then it islikely permissible. See Scheffer, 523 U.S.,at 316–317, 118 S.Ct. 1261 (upholding ex-clusion of polygraph evidence in part be-cause this rule ‘‘does not implicate anysignificant interest of the accused’’); id., at318, 118 S.Ct. 1261 (KENNEDY, J., con-curring in part and concurring in judg-ment) (‘‘[S]ome later case might present amore compelling case for introduction ofthe testimony than this one does’’).Where, however, the burden is substantial,the State must present a valid reason forits per se evidentiary rule.

In the instant case Arizona’s proposedreasons are insufficient to support its cate-gorical exclusion. While the State con-tends that testimony regarding mental ill-ness may be too incredible or speculativefor the jury to consider, this does notexplain why the exclusion applies in allcases to all evidence of mental illness. ‘‘AState’s legitimate interest in barring unre-liable evidence does not extend to per seexclusions that may be reliable in an indi-



548 U.S. 794

vidual case.’’ Rock, supra, at 61, 107 S.Ct.2704. States have certain discretion to barunreliable or speculative testimony and toadopt rules to ensure the reliability ofexpert testimony. Arizona has done so,and there is no reason to believe its rulesare insufficient to avoid S 793speculative evi-dence of mental illness. See Ariz. RulesEvid. 403, 702 (2006). This is particularlytrue because Arizona applies its usualcase-by-case approach to permit admissionof evidence of mental illness for a varietyof other purposes. See, e.g., State v. Lind-sey, 149 Ariz. 472, 474–475, 720 P.2d 73,75–76 (1986) (en banc) (psychological char-acteristics of molestation victims); State v.Hamilton, 177 Ariz. 403, 408–410, 868 P.2d986, 991–993 (App.1993) (psychological evi-dence of child abuse accommodation syn-drome); Horan v. Industrial Comm’n, ofAriz., 167 Ariz. 322, 325–326, 806 P.2d 911,914–915 (App.1991) (psychiatric testimonyregarding neurological deficits).

The risk of jury confusion also fails tojustify the rule. The State defends its ruleas a means to avoid the complexities ofdetermining how and to what degree amental illness affects a person’s mentalstate. The difficulty of resolving a factualissue, though, does not present a sufficientreason to take evidence away from thejury even when it is crucial for the de-fense. ‘‘We have always trusted juries tosort through complex facts in various areasof law.’’ United States v. Booker, 543 U.S.220, 289, 125 S.Ct. 738, 160 L.Ed.2d 621(2005) (STEVENS, J., dissenting in part).Even were the risk of jury confusion realenough to justify excluding evidence inmost cases, this would provide little basisfor prohibiting all evidence of mental ill-ness without any inquiry into its likelyeffect on the jury or its role in deciding thelinchpin issue of knowledge and intent.Indeed, Arizona has a rule in place toserve this very purpose. See Rule 403.

Even assuming the reliability and jury-confusion justifications were persuasive insome cases, they would not suffice here.It does not overcome the constitutionalobjection to say that an evidentiary rulethat is reasonable on its face can be ap-plied as well to bar significant defenseevidence without any rational basis for do-ing so. In Van Arsdall, for example, theCourt rejected the application of DelawareRule of Evidence 403, which allows rele-vant evidence to be excluded S 794where itsprobative value is substantially outweighedby the risk of unfair prejudice or otherharms to the trial process. 475 U.S., at676, and n. 2, 106 S.Ct. 1431. While theRule is well established and designed for alegitimate function, the Constitution pre-vented an application that deprived thedefendant of all inquiry into an importantissue. Id., at 679, 106 S.Ct. 1431. Othercases have applied this same case-specificanalysis in deciding the legitimacy of anexclusion. See, e.g., Rock, 483 U.S., at 62,107 S.Ct. 2704 (the ‘‘circumstances presentan argument for admissibility of petition-er’s testimony in this particular case, anargument that must be considered by thetrial court’’); Chambers v. Mississippi, 410U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d297 (1973) (‘‘In these circumstances, whereconstitutional rights directly affecting theascertainment of guilt are implicated, thehearsay rule may not be applied mechanis-tically to defeat the ends of justice’’); cf.Scheffer, supra, at 318, 118 S.Ct. 1261(KENNEDY, J., concurring in part andconcurring in judgment).

The Court undertakes little analysis ofthe interests particular to this case. Byproceeding in this way it devalues Clark’sconstitutional rights. The reliability ratio-nale has minimal applicability here. TheCourt is correct that many mental diseasesare difficult to define and the subject ofgreat debate. See ante, at 2734. Schizo-



phrenia, however, is a well-documentedmental illness, and no one seriously dis-putes either its definition or its mostprominent clinical manifestations. TheState’s own expert conceded that Clarkhad paranoid schizophrenia and was ac-tively psychotic at the time of the killing.See App. 254–257. The jury-confusion ra-tionale, if it is at all applicable here, is theresult of the Court’s own insistence onconflating the insanity defense and thequestion of intent. Considered on its ownterms, the issue of intent and knowledge isa straightforward factual question. A trierof fact is quite capable of weighing defensetestimony and then determining whetherthe accused did or did not intend to kill orknowingly kill a human being who was apolice officer. True, the issue can be dif-fiScult795 to decide in particular instances,but no more so than many matters juriesmust confront.

The Court says mental-illness evidence‘‘can easily mislead,’’ ante, at 2735, andmay ‘‘tel[l] us little or nothing about theability of the defendant to form mens rea,’’ibid. These generalities do not, however,show how relevant or misleading the evi-dence in this case would be (or explain whyArizona Rule of Evidence 403 is insuffi-cient for weighing these factors). As ex-plained above, the evidence of Clark’smental illness bears directly on mens rea,for it suggests Clark may not have knownhe was killing a human being. It is strik-ing that while the Court discusses atlength the likelihood of misjudgment fromplacing too much emphasis on evidence ofmental illness, see ante, at 2733–2736, itignores the risk of misjudging an innocentman guilty from refusing to consider thishighly relevant evidence at all. Clark’sexpert, it is true, said no one could knowexactly what was on Clark’s mind at thetime of the shooting. See ante, at 2736.The expert testified extensively, however,about the effect of Clark’s delusions on his

perceptions of the world around him, andabout whether Clark’s behavior around thetime of the shooting was consistent withdelusional thinking. This testimony wasrelevant to determining whether Clarkknew he was killing a human being. Italso bolstered the testimony of lay wit-nesses, none of which was deemed unrelia-ble or misleading by the state courts.

For the same reasons, the Court errs inseeking support from the American Psy-chiatric Association’s statement that a psy-chiatrist may be justifiably reluctant toreach legal conclusions regarding the de-fendant’s mental state. See ibid. In thisvery case, the American Psychiatric Asso-ciation made clear that psychiatric evi-dence plays a crucial role regardless ofwhether the psychiatrist testifies on theultimate issue: ‘‘Expert evidence of mentaldisorders, presented by qualified profes-sionals and subject to adversarial testing,is both relevant to the mental-state issuesraised by S 796mens rea requirements andreliable TTT. Such evidence could not becondemned wholesale without unsettlingthe legal system’s central reliance on suchevidence.’’ Brief for American PsychiatricAssociation et al. as Amici Curiae 15.

Contrary to the Court’s suggestion, seeante, at 2735, the fact that the state anddefense experts drew different conclusionsabout the effect of Clark’s mental illnesson his mental state only made Clark’s evi-dence contested; it did not make the evi-dence irrelevant or misleading. The trialcourt was capable of evaluating the com-peting conclusions, as factfinders do incountless cases where there is a disputeamong witnesses. In fact, the potential tomislead will be far greater under theCourt’s new evidentiary system, where ju-rors will receive observation evidence with-



548 U.S. 798

out the necessary explanation from ex-perts.

The fact that mental-illness evidencemay be considered in deciding criminalresponsibility does not compensate for itsexclusion from consideration on the mensrea elements of the crime. Cf. ante, at2733–2734. The evidence addresses differ-ent issues in the two instances. Criminalresponsibility involves an inquiry intowhether the defendant knew right fromwrong, not whether he had the mens reaelements of the offense. While there maybe overlap between the two issues, ‘‘theexistence or nonexistence of legal insanitybears no necessary relationship to the ex-istence or nonexistence of the requiredmental elements of the crime.’’ Mullaneyv. Wilbur, 421 U.S. 684, 706, 95 S.Ct. 1881,44 L.Ed.2d 508 (1975) (Rehnquist, J., con-curring).

Even if the analyses were equivalent,there is a different burden of proof forinsanity than there is for mens rea. Ari-zona requires the defendant to prove hisinsanity by clear and convincing evidence.See Ariz.Rev.Stat. Ann. § 13–502(C) (West2001). The prosecution, however, mustprove all elements of the offense beyond areasonable doubt. See Mullaney, supra,at 703–704, 95 S.Ct. 1881; In re Winship,397 U.S. 358, 364, 90 S.Ct. 1068, 25L.Ed.2d 368 (1970). The shift in the bur-den on the criminal responsibility issue,while permissible under our precedent, seeLeSland797 v. Oregon, 343 U.S. 790, 72 S.Ct.1002, 96 L.Ed. 1302 (1952), cannot be ap-plied to the question of intent or knowl-edge without relieving the State of its re-sponsibility to establish this element of theoffense. See Sandstrom v. Montana, 442U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39(1979) (jury instruction that had the effectof placing the burden on the defendant todisprove that he had the requisite mentalstate violates due process). While eviden-

tiary rules do not generally shift the bur-den impermissibly, where there is a rightto have evidence considered on an elementof the offense, the right is not respected byallowing the evidence to come in only onan issue for which the defendant bears theburden of proof. See Cool v. UnitedStates, 409 U.S. 100, 103, 93 S.Ct. 354, 34L.Ed.2d 335 (1972) (per curiam) (jury in-struction that allowed jury to consider ac-complice’s testimony only if it was truebeyond a reasonable doubt ‘‘places an im-proper burden on the defense and allowsthe jury to convict despite its failure tofind guilt beyond a reasonable doubt’’);Martin v. Ohio, 480 U.S. 228, 233–234, 107S.Ct. 1098, 94 L.Ed.2d 267 (1987) (Statecan shift the burden on a claim of self-defense, but if the jury were disallowedfrom considering self-defense evidence forpurposes of deciding the elements of theoffense, it ‘‘would relieve the State of itsburden and plainly run afoul of Winship’smandate’’). By viewing the Arizona ruleas creating merely a ‘‘presumption of sani-ty (or capacity or responsibility),’’ ante, at2732, rather than a presumption that themens rea elements were not affected bymental illness, the Court fails to appreciatethe implications for Winship.

The State attempts to sidestep the evi-dentiary issue entirely by claiming that itsmental-illness exclusion simply alters oneelement of the crime. The evidentiaryrule at issue here, however, cannot beconsidered a valid redefinition of the of-fense. Under the State’s logic, a personwould be guilty of first-degree murder ifhe knowingly or intentionally killed a po-lice officer or committed the killing undercircumstances that would show knowledgeor intent but for the defendant’s mentalillness. To begin with, Arizona law doesS 798not say this. And if it did, it would beimpermissible. States have substantialdiscretion in defining criminal offenses.In some instances they may provide that



the accused has the burden of persuasionwith respect to affirmative defenses. SeePatterson v. New York, 432 U.S. 197, 210,97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). ‘‘Butthere are obviously constitutional limitsbeyond which the States may not go in thisregard.’’ Ibid. If it were otherwise, Statescould label all evidentiary exclusions asredefinitions and so evade constitutionalrequirements. There is no rational basis,furthermore, for criminally punishing aperson who commits a killing withoutknowledge or intent only if that person hasa mental illness. Cf. Robinson v. Califor-nia, 370 U.S. 660, 666, 82 S.Ct. 1417, 8L.Ed.2d 758 (1962). The State attempts tobring the instant case within the ambit ofMontana v. Egelhoff, 518 U.S. 37, 116S.Ct. 2013, 135 L.Ed.2d 361 (1996); but inEgelhoff the excluded evidence concernedvoluntary intoxication, for which a personcan be held responsible. Viewed either asan evidentiary rule or a redefinition of theoffense, it was upheld because it ‘‘comportswith and implements society’s moral per-ception that one who has voluntarily im-paired his own faculties should be respon-sible for the consequences.’’ Id., at 50, 116S.Ct. 2013 (plurality opinion). An involun-tary mental illness does not implicate thisjustification.

Future dangerousness is not, as theCourt appears to conclude, see ante, at2737, n. 45, a rational basis for convictingmentally ill individuals of crimes they didnot commit. Civil commitment proceed-ings can ensure that individuals who pres-ent a danger to themselves or others re-ceive proper treatment without unfairlytreating them as criminals. The Statepresents no evidence to the contrary, andthe Court ought not to imply otherwise.

The State gains little support from Fish-er v. United States, 328 U.S. 463, 66 S.Ct.1318, 90 L.Ed. 1382 (1946). There the

defendant requested an instruction fromthe trial court that the jury consider hismental deficiencies in determining his ca-pacity for premeditation and deliberation.Id., at 470, 66 S.Ct. 1318. The Courtnoted that S 799‘‘[i]n view of the status of thedefense of partial responsibility in the Dis-trict and the nation no contention is orcould be made of the denial of due pro-cess.’’ Id., at 466, 66 S.Ct. 1318. Thisdictum may be attributable to the fact thatthe cases recognizing a defendant’s eviden-tiary rights and the prosecution’s duty toprove all elements beyond a reasonabledoubt were still decades away. It mayalso reflect the fact that the jury instruc-tions as given did seem to allow the jury toconsider evidence of mental deficiency if itdisproved the elements of the offense.See id., at 467, n. 3, 66 S.Ct. 1318 (Thejury instructions stated, ‘‘ ‘It is furthercontended that even if sane and responsi-ble, there was no deliberate intent to kill,nor in fact any actual intent to kill.Therefore if not guilty by reason of insani-ty, the defendant at most is guilty only ofsecond degree murder or manslaughter’ ’’).Even further ambiguity comes from thefact that the defense in Fisher concerned aclaim that the petitioner was ‘‘mentallysomewhat below the average’’ with a ‘‘psy-chopathic personality’’ of aggression. Id.,at 467, 66 S.Ct. 1318. This general claimof mental deficiencies was relevant to the‘‘theory of partial responsibility,’’ id., at470, 66 S.Ct. 1318, he wanted the jury toconsider. Unlike the mental illness here,though, which concerns inadequacy of per-ception and information processing, the pe-titioner’s claim may not have been relevantto mens rea unless mens rea were rede-fined to include an element of responsibili-ty. Fisher’s language, then, does not con-trol this case.

While Arizona’s rule is not unique, ei-ther historically or in contemporary prac-tice, this fact does not dispose of Clark’s


2749HAMDAN v. RUMSFELDCite as 126 S.Ct. 2749 (2006)

548 U.S. 557

constitutional argument. To the extentFisher may have suggested the contrary,subsequent cases make clear that whilethe existence of the rule in some jurisdic-tions is a significant factor to consider, seeEgelhoff, supra, at 43, 116 S.Ct. 2013 (plu-rality opinion), it is not dispositive for eval-uation of a claim that the accused wasforeclosed from introducing evidence cru-cial to the defense. The evidentiary exclu-sion of accomplice testimony the Courtinvalidated in Washington was, in fact,S 800well established. See 388 U.S., at 21–22, 87 S.Ct. 1920. The exclusion of hyp-notically refreshed testimony likewise hadsome support when the Court held it un-constitutional as applied to a defendant’sown testimony. Rock, 483 U.S., at 57, 107S.Ct. 2704. While 13 States still imposesignificant restrictions on the use of men-tal-illness evidence to negate mens rea, asubstantial majority of the States current-ly allow it. Brief for United States asAmicus Curiae 22–23, and n. 13. The factthat a reasonable number of States re-strict this evidence weighs into the analy-sis, but applying the rule as a per se bar,as Arizona does, is so plainly unreasonablethat it cannot be sustained.

Putting aside the lack of any legitimatestate interest for application of the rule inthis case, its irrationality is apparent whenconsidering the evidence that is allowed.See Washington, supra, at 22, 87 S.Ct.1920 (‘‘The absurdity of the rule is amplydemonstrated by the exceptions that havebeen made to it’’). Arizona permits thedefendant to introduce, for example, evi-dence of ‘‘behavioral tendencies’’ to showhe did not have the required mental state.See Mott, 187 Ariz., at 544, 931 P.2d, at1054; Christensen, 129 Ariz., at 35–36, 628P.2d, at 583–584. While defining mentalillness is a difficult matter, the State seemsto exclude the evidence one would thinkmost reliable by allowing unexplained anduncategorized tendencies to be introduced

while excluding relatively well-understoodpsychiatric testimony regarding well-docu-mented mental illnesses. It is unclear,moreover, what would have happened inthis case had the defendant wanted totestify that he thought Officer Moritz wasan alien. If disallowed, it would be tanta-mount to barring Clark from testifying onhis behalf to explain his own actions. Ifallowed, then Arizona’s rule would simplyprohibit the corroboration necessary tomake sense of Clark’s explanation. Insum, the rule forces the jury to decideguilt in a fictional world with undefinedand unexplained behaviors but withoutmental illness. This rule has no rationaljustification and S 801imposes a significantburden upon a straightforward defense:He did not commit the crime with whichhe was charged.

These are the reasons for my respectfuldissent.

,

548 U.S. 557, 165 L.Ed.2d 723

Salim Ahmed HAMDAN, Petitioner,

v.

Donald H. RUMSFELD, Secretaryof Defense, et al.

No. 05–184.Argued March 28, 2006.

Decided June 29, 2006.Background: Alien, who was detained atGuantanamo Bay, Cuba, and charged withvarious terrorism-related offenses, wasdesignated for trial before a military com-mission. He petitioned for habeas relief.The United States District Court for theDistrict of Columbia granted petition. Gov-ernment appealed. The United States


215Tex.YATES v. STATECite as 171 S.W.3d 215 (Tex.App.—Houston [1st Dist.] 2005)

come into being under the terms of thelease.’’ Id.

VIn appellees’ motion for summary judg-

ment, they also contended that Evelyn Tit-tizer was entitled to a unit royalty of.0241152 on the 100.03–acre tract. Uniondoes not dispute the percentage of unitroyalty interest, as such. It only indirect-ly disputed this portion of the summaryjudgment in its interpleader and severancearguments. As stated, we overrule thesearguments. See Gisler, at 152, 154. Un-ion did not appeal the award of attorney’sfees in this case.

VIThe judgment of the trial court is af-

firmed in all aspects save the inceptiondate of appellees’ rights to royalties. Thatportion of the judgment awarding royaltiesbefore August 7, 2000 is reversed and ren-dered. The remainder of the judgment isaffirmed, including entitlement to propor-tional royalties beginning August 7, 2000.

,

Andrea Pia YATES, Appellant,

v.

The STATE of TEXAS, Appellee.

Nos. 01–02–00462–CR, 01–02–00463–CR.

Court of Appeals of Texas,Houston (1st Dist.).

Jan. 6, 2005.

Rehearing Overruled April 7, 2005.

Discretionary Review RefusedNov. 9, 2005.

Background: Defendant was convicted,after jury trial in the 230th District Court,

Harris County, Belinda Hill, J., of capitalmurder for drowning three of her fivechildren, and after trial court denied de-fendant’s post-verdict but pre-punishmentmotion for mistrial, jury assessed punish-ment at life in prison. Defendant appealed.Holding: The Court of Appeals, Sam Nuc-hia, J., held that prosecution made use offalse testimony, of its sole mental healthexpert at guilt phase, that television crimedrama series, for which he acted as consul-tant, had broadcast an episode, shortlybefore defendant’s alleged crimes, in whicha mother drowned her children butclaimed postpartum depression and wasfound insane.Reversed and remanded.

1. Criminal Law O1155The appellate court reviews the denial

of a motion for mistrial under an abuse ofdiscretion standard.

2. Criminal Law O942(2)Generally, if a witness has testified to

material, inculpatory facts against a defen-dant and, after the verdict but before amotion for new trial has been ruled upon,the witness makes an affidavit that hetestified falsely, a new trial should begranted.

3. Criminal Law O942(2)Prosecution made use of false testimo-

ny, elicited on defense cross-examinationof prosecution’s sole mental health expertat guilt phase of capital murder trial inwhich defendant asserted insanity defenseto charges she drowned three of her chil-dren, that television crime drama series,for which expert acted as consultant, hadbroadcast an episode, shortly before defen-dant’s alleged crimes, in which a motherdrowned her children but claimed postpar-tum depression and was found insane, andthus, defendant was entitled to guilt phase


216 Tex. 171 SOUTH WESTERN REPORTER, 3d SERIES

mistrial upon discovery, between guilt andsentencing phases, that expert’s testimonywas false; prosecutor, during cross-exami-nation of defense mental health expert,emphasized common facts of defendant’scase and alleged television episode andasked whether defense expert, if she hadknown about the television episode, wouldhave explored whether it gave defendantthe idea she would ‘‘not suffer hell orprison’’ if she drowned her children, andprosecutor’s guilt phase closing argumentjuxtaposed defendant’s depression, herdark thoughts, watching the televisionshow, and seeing ‘‘a way out.’’

Daucie Elana Shefman, Wendell Odom,George J. Parnham, W. Troy McKinney,Schneider & McKinney, P.C., Houston,TX, for Appellant.

Charles A. Rosenthal, Jr., District At-torney—Harris County, Alan Curry, Assis-tant District Attorney, Houston, TX, forAppellee.

Panel consists of Chief JusticeRADACK and Justices TAFT andNUCHIA.

OPINION

SAM NUCHIA, Justice.

Appellant, Andrea Pia Yates, wascharged by two indictments with capitalmurder for the drowning deaths of threeof her five children.1 Rejecting appellant’sinsanity defense, the jury found her guiltyand, having answered the special issue re-

garding appellant’s continuing threat tosociety ‘‘No,’’ assessed punishment at lifein prison. Following the verdict and be-fore the punishment phase of the trial,appellant learned that the State’s expertwitness, Dr. Park Dietz, had presentedfalse testimony. Appellant moved for mis-trial, but the trial court denied the motion.Appellant asserts 19 points of error inwhich she challenges, among other things,the factual sufficiency of the evidence tosupport the verdict rejecting the insanitydefense, the denial of a motion for mistrialbased on false testimony, and the denial ofher right to due process by the use of falseor perjured testimony. We reverse andremand.

BACKGROUND

Appellant and Russell Yates (Yates)were married on April 17, 1993. Theirfirst child, Noah, was born in February1994; their second child, John, was born inDecember 1995; and their third child,Paul, was born in September 1997. Dur-ing this time, the Yates family moved fromFriendswood to Florida and back to theHouston area, living in a recreational vehi-cle. In 1998, they moved from the recre-ational vehicle to a converted bus and con-tinued to live in a trailer park. At onepoint, appellant told her husband she feltdepressed and overwhelmed, and he sug-gested that she talk to her mother and afriend.

In February 1999, a fourth child, Luke,was born. On June 18, 1999, appellantsuffered severe depression and tried tocommit suicide by taking an overdose of

1. Appellant was charged in cause number880205 with intentionally and knowinglycausing the deaths of Noah Yates and JohnYates. See TEX. PEN.CODE ANN. § 19.03(a)(7)(A)(Vernon Supp.2004–2005) (providing thatmurder of more than one person in sametransaction is capital murder). Appellant was

charged in cause number 883590 with inten-tionally and knowingly causing the death ofMary Yates. See TEX. PEN.CODE ANN.

§ 19.03(a)(8) (Vernon Supp.2004–2005) (pro-viding that murder of an individual under sixyears of age is capital murder).



an antidepressant that had been pre-scribed for her father. She was admittedto the psychiatric unit of Methodist Hospi-tal. After her release six days later, shebegan seeing a psychiatrist, Dr. EileenStarbranch, as an outpatient. On July 20,1999, Yates found appellant in the bath-room, holding a knife to her neck. Dr.Starbranch recommended that appellantbe admitted to Spring Shadows Glen Hos-pital. Appellant was admitted, against herwishes, the next day. At Spring ShadowsGlen, appellant told a psychologist, Dr.James Thompson, that she had had visionsand had heard voices since the birth of herfirst child. Dr. Starbranch ranked appel-lant, at the time of her admission toSpring Shadows Glen, among the five sick-est patients she had ever seen. Beforedischarging appellant from the hospital,Dr. Starbranch told appellant and Yatesthat appellant had a high risk of anotherpsychotic episode if she had another baby.

In August 1999, the Yates family movedfrom the converted bus to a house thatYates had bought while appellant was inthe hospital. That fall, appellant beganhome-schooling Noah. Appellant saw Dr.Starbranch for the last time on January12, 2000. She told Dr. Starbranch thatshe had stopped taking her medication inNovember 1999. In November 2000, ap-pellant’s fifth child, Mary, was born. InMarch 2001, appellant’s father died. Thisdeath seemed to precipitate a decline inappellant’s functioning, and she began tosuffer from depression. On March 28,2001, Yates contacted Dr. Starbranch andtold her that appellant was ill again. Dr.Starbranch wanted to see appellant imme-diately, but Yates said he could not bringher in until the next Monday.

Appellant was not taken to Dr. Star-branch’s office, but was admitted to Dever-eux Hospital in League City on March 31,2001. There, she was observed as being

catatonic or nearly catatonic and possiblydelusional or having bizarre thoughts.She was treated by Dr. Mohammed Saeedand was placed on a suicide watch. Appel-lant was discharged on April 13, 2001 uponher own and Yates’s request. She beganan outpatient program at Devereux, andDr. Saeed recommended that someonestay with her at all times and that she notbe left alone with her children.

On April 19, Yates’s mother came for avisit. She had intended to stay for aboutone week, but, when Yates told his motherthat appellant was suffering from depres-sion, his mother decided to stay longer andmoved to a nearby extended-stay hotel.

Yates’s mother went to appellant’shome every day. She observed that ap-pellant was almost catatonic, did not re-spond to conversation or made a delayedresponse, stared into space, trembled,scratched her head until she created baldspots, and did not eat. On May 3, appel-lant filled a bathtub with water, but couldnot give a good reason for doing so.When asked, she said, ‘‘I might need it.’’On May 4, appellant was re-admitted toDevereux, and on May 14, she was dis-charged, seeming to be better. Dr. Saeedhad prescribed the medication, Haldol,and appellant continued to take it afterher discharge. Dr. Saeed also recom-mended electroconvulsive therapy, but ap-pellant rejected that recommendation.

After her second discharge from Dever-eux, appellant was able to take care of herchildren, but was still uncommunicativeand withdrawn. She smiled infrequentlyand seemed to have no emotions, but Yatesdid not think it was unsafe to leave heralone with the children. On June 4, appel-lant had a follow-up appointment with Dr.Saeed, who decided to taper her off ofHaldol. Appellant denied having any sui-cidal or psychotic thoughts. Appellantmet with Dr. Saeed again on June 18, and



she again denied having any psychoticsymptoms or suicidal thoughts. She wasno longer taking Haldol, and Dr. Saeedadjusted the dosages of her other anti-depressant medications.

On June 20, 2001, at 9:48 a.m., appellantcalled 9–1–1 and told the operator, SylviaMorris, that she needed the police. Mor-ris transferred the call to the HoustonPolice Department, and appellant told thepolice operator that she needed a policeofficer to come to her home. Appellantalso called Yates at his work and told himthat he needed to come home, but wouldnot say why. As Yates was leaving, hecalled her and asked if anyone was hurt,and she said that the kids were hurt. Heasked, ‘‘Which ones?’’ She responded, ‘‘Allof them.’’

Within minutes of appellant’s 9–1–1 call,several police officers arrived at appel-lant’s home. They discovered four deadchildren, soaking wet and covered with asheet, lying on appellant’s bed. The fifthchild, Noah, was still in the bathtub, float-ing face down. Appellant was quiet andcooperative with the police officers.

At trial, ten psychiatrists and two psy-chologists testified regarding appellant’smental illness. Four of the psychiatristsand one of the psychologists had treatedappellant either in a medical facility or as aprivate patient before June 20, 2001.They testified regarding the symptoms,severity, and treatment of appellant’s men-tal illness. Five psychiatrists and one psy-chologist saw appellant on or soon afterJune 20 for assessment and/or treatmentof her mental illness. Four of these fivepsychiatrists and the psychologist testified,in addition to their observations and opin-ions regarding appellant’s mental illness,

that appellant, on June 20, 2001, did notknow right from wrong, was incapable ofknowing what she did was wrong, or be-lieved that her acts were right.2

The tenth psychiatrist, Dr. Park Dietz,who interviewed appellant and was theState’s sole mental-health expert in thecase, testified that appellant, although psy-chotic on June 20, knew that what she didwas wrong. Dr. Dietz reasoned that be-cause appellant indicated that her thoughtswere coming from Satan, she must haveknown they were wrong; that if she be-lieved she was saving the children, shewould have shared her plan with othersrather than hide it as she did; that if shereally believed that Satan was going toharm the children, she would have calledthe police or a pastor or would have sentthe children away; and that she coveredthe bodies out of guilt or shame.

On cross-examination, appellant’s coun-sel asked Dr. Dietz about his consultingwork with the television show, ‘‘Law &Order,’’ which appellant was known towatch. The testimony was as follows:

Q. Now, you are, are you not, a consul-tant on the television programknown as ‘‘Law & Order’’?

A. Two of them.Q. Okay. Did either one of those deal

with postpartum depression orwomen’s mental health?

A. As a matter of fact, there was ashow of a woman with postpartumdepression who drowned her chil-dren in the bathtub and was foundinsane and it was aired shortly be-fore the crime occurred.

The second mention of ‘‘Law & Order’’came during Dr. Lucy Puryear’s testimo-

2. The fifth psychiatrist in this group, Dr. Mel-issa Ferguson, testified that she had not madea determination regarding appellants abilityto know whether her actions were wrong.

However, she testified that appellant madethe statement that, in the context that thechildren would perish in the fires of hell,[their drowning] was the right thing to do.



ny. Dr. Puryear, a defense expert wit-ness, was cross-examined by the State re-garding her evaluation of appellant. TheState specifically asked about her failureto inquire into whether or not appellanthad seen ‘‘Law & Order.’’ Dr. Puryeartestified as follows:

Q. You know she watched ‘‘Law & Or-der’’ a lot; right?

A. I didn’t know. No.Q. Did you know that in the weeks

before June 20th, there was a ‘‘Law& Order’’ episode where a womankilled her children by drowningthem in a bathtub, was defended onthe basis of whether she was saneor insane under the law, and thediagnosis was postpartum depres-sion and in the program the personwas found insane, not guilty by rea-son of insanity? Did you knowthat?

A. No.Q. If you had known that and had

known that Andrea Yates was sub-ject to these delusions, not that shewas the subject of a delusion ofreference, but that she regularlywatched ‘‘Law & Order’’ and mayhave seen that episode, would youhave changed the way you wentabout interviewing her, would youhave interviewed whether she gotthe idea somehow she could do thisand not suffer hell or prison?

A. I certainly wouldn’t have asked herthat question. No.

Q. Would you have—you didn’t have toask her that question, but you couldhave explored that?

A. If I had known she watched thatshow, I would have ask[ed] herabout it, yes.

In his final argument at the guilt-inno-cence phase of the trial, appellant’s attor-ney referred to Dr. Dietz’s testimony bystating, ‘‘Or maybe even we heard someevidence that she saw some show on TVand knew she could drown her childrenand get away with it.’’

The prosecutor, in his final argument,made the following reference to Dietz’stestimony about the ‘‘Law & Order’’ epi-sode:

She gets very depressed and goes intoDevereux. And at times she says thesethoughts came to her during that month.These thoughts came to her, and shewatches ‘‘Law & Order’’ regularly, shesees this program. There is a way out.She tells that to Dr. Dietz. A way out.

After the jury had returned a guiltyverdict, appellant’s counsel discovered thatDr. Dietz had given false testimony. Theproducer of ‘‘Law & Order’’ spoke to coun-sel by telephone and said he could notrecall such an episode. An attorney repre-senting the producer, after talking to Dr.Dietz and researching the shows, verifiedto counsel that there was no show with aplot as outlined by Dr. Dietz. Dr. Dietzacknowledged that he had made an errorin his testimony.3 Appellant and the Stateentered into the following written stipula-tion:

1. Dr. Park Dietz testified on cross-examination that ‘‘As a matter offact, there was a show of a womanwith postpartum depression whodrowned her children in the bathtuband was found insane and it wasaired shortly before this crime oc-curred.’’

2. Dr. Park Dietz would testify that hewas in error and that no episode of‘‘Law & Order’’ and/or ‘‘Law & Or-

3. Dr. Dietz’s acknowledgment is not on therecord. The record is unclear as to whether

it was made to the attorney representing theproducer or to appellant’s counsel.



der: Criminal Intent’’ as describedabove was ever produced for the‘‘Law & Order’’ television series.

Appellant moved for a mistrial based onDr. Dietz’s false testimony, and the trialcourt denied the motion. Appellant thenrequested that the stipulation be admittedinto evidence and read to the jury. Thetrial court granted this request. In con-nection with the stipulation, the trial court,in response to appellant’s request, madethe following statement to the jury:

Ladies and gentlemen, during thecourse of this trial there have been occa-sions when written stipulations havebeen introduced for your consider-ationTTTT While those witnesses thatgive information which is contained inthis stipulation do not physically appearhere in court to testify, you must consid-er the matters which they have indicatedin the written stipulation as if they actu-ally appeared in court and give it what-ever weight you wish to give to it. So thewitness does not have to actually appearin court, but the matters contained inthe stipulation are offered into evidenceas if they had appeared.

The jury returned verdicts on bothcharges that at least 10 jurors had a rea-sonable doubt that appellant would commitcriminal acts of violence that would consti-tute a continuing threat to society.

DISCUSSION

Motion for Mistrial

In her second point of error, appellantcontends that the trial court abused itsdiscretion by denying her motion for mis-trial when it was revealed that the State’sexpert witness had presented false testi-mony. Appellant argues that Dr. Dietz’stestimony was essential to the jury’s‘‘guilty’’ verdict and that his testimony re-lating to the ‘‘Law & Order’’ episode was

the most compelling testimony supportingDr. Dietz’s conclusion that appellant knewright from wrong.

The State recognizes that the State’sknowing use of perjured testimony that islikely to materially affect the judgmentviolates the Due Process Clause of theFourteenth Amendment of the UnitedStates Constitution. See Ex parte Castel-lano, 863 S.W.2d 476, 485 (Tex.Crim.App.1993). The State argues that it did notknow that the testimony was false, did notuse the false information, and the informa-tion was not material. We agree that thiscase does not involve the State’s knowinguse of perjured testimony. At the hearingon appellant’s motion for mistrial, appel-lant did not complain that there had beenprosecutorial misconduct. Rather, appel-lant stated,

[M]ake no mistake, the issue is notwhether or not the State was aware andwe have no reason to believe the Statewas aware that such a program did notexist. The issue is that the defense ofinsanity was rebutted by the testimonyof Dr. Dietz relative to an act of premed-itation, that is a planned and/or a decep-tive act on Mrs. Yates’ part, that issomething that would give her an idea, away out of these particular allegations.And that was relayed to this jury and webelieve that the jury relied upon thepresentation of Dr. Dietz as well as thecross-examination by [the State’s attor-ney] of Dr. Puryear relative to this par-ticular issue.

[1] We review the denial of a motionfor mistrial under an abuse of discretionstandard. Ladd v. State, 3 S.W.3d 547,567 (Tex.Crim.App.1999). In this case, themotion for mistrial was the functionalequivalent of a motion for new trial; there-fore, we look to the standards governingthe review of the granting or denial of amotion for new trial. See State v. Garza,



774 S.W.2d 724, 726 (Corpus Christi 1989,pet. ref’d) (concluding that State may ap-peal order granting mistrial that is func-tionally indistinguishable from ordergranting motion for new trial).

[2] Generally, if a witness has testifiedto material, inculpatory facts against a de-fendant and, after the verdict but before amotion for new trial has been ruled upon,the witness makes an affidavit that hetestified falsely, a new trial should begranted.4 Williams v. State, 375 S.W.2d449, 451 (Tex.Crim.App.1964). The excep-tions to this rule—such as, when the re-canting witness is an accomplice, or therecantation is found to be incredible inlight of the evidence, or the recantationhas been coerced—do not apply in thepresent case. See Villarreal v. State, 788S.W.2d 672, 674 (Tex.App.-Corpus Christi1990, pet. ref’d) (applying general rule todetermine that, because State offered noevidence to controvert recantation or testi-mony, denial of motion for new trial wasabuse of discretion). We note that thisrule does not require that the State haveknowledge that the testimony was false.We review the record to determine wheth-er the State used the false testimony and,if so, whether there is a reasonable likeli-hood that the false testimony could haveaffected the judgment of the jury. SeeRamirez v. State, 96 S.W.3d 386, 394–95(Tex.App.-Austin 2002, pet. ref’d).5

[3] It is uncontested that the testimo-ny of Dr. Dietz regarding his consultationon a ‘‘Law & Order’’ television show hav-

ing a plot remarkably similar to the actscommitted by appellant was untrue andthat there was no ‘‘Law & Order’’ televi-sion show with such a plot. The State isbound by its stipulation to these facts. SeeDougherty v. State, 745 S.W.2d 107, 107(Tex.App.-Amarillo 1988), aff’d, 773 S.W.2d320 (Tex.Crim.App.1989) (stating thatState was bound by its stipulation). How-ever, the State asserts that it is ‘‘veryquestionable whether it can be said thatthe trial prosecutors used Dr. Dietz’ testi-mony on cross-examination, especially inlight of the fact that it played absolutelyno role in the development of Dr. Dietz’conclusion that the appellant knew thather conduct was wrongTTTT’’

The record reflects that the State usedDr. Dietz’s testimony twice. First, theState used the testimony to cross-examineDr. Puryear, who had seen appellant forseveral months while appellant was in thecounty jail, asking Dr. Puryear whethershe knew that appellant watched ‘‘Law &Order’’ and whether she knew that therewas an episode with a plot line mirroringappellant’s acts. In so doing, the Staterepeated those facts that were common toappellant’s acts and the referenced epi-sode, thus emphasizing those facts alreadystated by Dr. Dietz. Second, the Stateconnected the dots in its final argument byjuxtaposing appellant’s depression, herdark thoughts, watching ‘‘Law & Order,’’and seeing ‘‘a way out.’’ Thus, the Stateused Dr. Dietz’s false testimony to suggest

4. In our case, Dr. Dietz did not make anaffidavit that he testified falsely. However,because the State stipulated that Dr. Dietzwould testify that his testimony was in error,there is no credibility issue requiring an affi-davit. See Dougherty v. State, 745 S.W.2d107, 107 (Tex.App.-Amarillo 1988), aff’d, 773S.W.2d 320 (Tex.Crim.App.1989) (stating thatState was bound by its stipulation).

5. We recognize that Ramirez v. State involvedthe prosecutor’s knowing use of false testimo-ny. 96 S.W.3d 386, 393 (Tex.App.-Austin2002, pet. ref’d). However, when false testi-mony is a factor in securing a conviction, theeffect is the same, regardless of whether theState used the false testimony knowingly ornot. See Trujillo v. State, 757 S.W.2d 169,172 n. 1 (Tex.App.-San Antonio 1988, no pet.)(Cadena, C.J.concurring).



to the jury that appellant patterned heractions after that ‘‘Law & Order’’ episode.We emphasize that the State’s use of Dr.Dietz’s false testimony was not prosecuto-rial misconduct. Rather, it served to giveweight to that testimony.

The State argues that Dr. Dietz’s testi-mony regarding the ‘‘Law & Order’’ epi-sode was not material. The State assertsthat ‘‘there is no reasonable likelihood’’that the testimony ‘‘could have affected thejudgment of the jury,’’ but does not makeany argument to support such a conclusorystatement. We conclude that the testimo-ny, combined with the State’s cross-exami-nation of Dr. Puryear and closing argu-ment, was material. The materiality ofthe testimony is further evidenced by thefact that appellant’s attorney felt com-pelled to address it in his own closingargument.

The State also asserts that Dr. Dietz didnot suggest that appellant used the plot ofthe show to plan killing her children. Al-though it is true that Dr. Dietz did notmake such a suggestion, the State did inits closing argument.

Five mental health experts testified thatappellant did not know right from wrongor that she thought what she did wasright. Dr. Dietz was the only mentalhealth expert who testified that appellantknew right from wrong. Therefore, histestimony was critical to establish theState’s case. Although the record doesnot show that Dr. Dietz intentionally liedin his testimony, his false testimony un-doubtedly gave greater weight to his opin-ion.6

We conclude that there is a reasonablelikelihood that Dr. Dietz’s false testimonycould have affected the judgment of the

jury. We further conclude that Dr. Dietz’sfalse testimony affected the substantialrights of appellant. Therefore, the trialcourt abused its discretion in denying ap-pellant’s motion for mistrial.

Accordingly, we sustain appellant’s sec-ond issue.

CONCLUSIONHaving sustained appellant’s second is-

sue, we need not reach her other issues.We reverse the trial court’s judgment andremand the cause for further proceedings.

,

King CHAPMAN & Broussard Consult-ing Group, Inc. and William

Broussard, Appellants,

v.

NATIONAL UNION FIRE INSUR-ANCE COMPANY OF PITTS-

BURGH, PA, Appellee.

No. 01–03–00989–CV.

Court of Appeals of Texas,Houston (1st Dist.).

Jan. 6, 2005.

Rehearing Overruled Feb. 16, 2005.Background: Insured corporation and of-ficer sued directors and officers’ (D&O)liability insurer for breaching defense andindemnification obligations in suit by offi-cer’s former wife to recover alimony andother payments due under divorce settle-

6. On the other hand, had the jury knownprior to their deliberations in the guilt-inno-cence phase of the trial, that Dr. Dietz’s testi-mony regarding the ‘‘Law & Order’’ episode

was false, the jury would likely have consid-ered him, the State’s only mental health ex-pert, to be less credible.


“guilty minds - home | princeton universityereading/feb. 9 seminar compressed-1.pdf"guilty...

Documents