Statements during insanity evaluation: Admissible?

Can the state introduce at trial incriminating statements made by a defendant during a court-ordered insanity evaluation?

That is one of several intriguing evidentiary issues in the case of Naveed Haq, whose trial gets underway today in a Seattle courtroom.

Haq has pleaded not guilty by reason of insanity (NGI) to multiple charges stemming from a shooting rampage last year at the Jewish Federation of Greater Seattle that left one woman dead and five other people wounded.

Defense attorneys argue that any self-incriminating statements made by Haq to psychologists and psychiatrists should be excluded from evidence, because the evaluations were court-ordered and Haq could not invoke his Fifth Amendment right to silence.

Senior Deputy Prosecuting Attorney Don Raz retorted that "to slice and dice" what information his expert witness can rely on goes against "proper methodology" and is "an affront to good forensic psychology."

This is a thorny issue and one worthy of contemplation by forensic psychologists and psychiatrists. The reigning text in our field, Gary Melton and colleagues' Psychological Evaluations for the Courts, suggests that experts should be "circumspect" in relying upon statements of defendants, especially defendants' statements to police, and should initially refuse to even consider third-party information that is known to be inadmissible so as not to contaminate our opinions. Parsing out specific statements made during a clinical evaluation is probably trickier, but certainly not impossible.

Judge Paris Kallas deferred ruling on the matter pending further contemplation. It will be interesting to see how she decides to balance Haq's rights against self-incrimination with the state’s right to challenge the insanity defense.

Haq's lengthy history of bipolar disorder is not disputed; indeed, it was a basis of the prosecution's decision to drop the death penalty. What is at issue is the severity of his illness, and whether his mental state at the time of the crime met Washington's legal standard for insanity, the M'Naghten test, which requires that a defendant be unable to tell the difference between right and wrong. (For more detail on the standard in Washington, see the 2003 appellate opinion in Washington v. Applin.)

Defense lawyers say Haq was delusional at the time of the murders. The prosecution contends that his careful planning belies psychosis. Insanity verdicts are notoriously difficult to obtain, in part because many people driven by persecutory delusions appear superficially rational and are capable of carrying out complex plans in furtherance of their delusionally based goals.

The judge denied a motion by defense attorneys to place the burden on the prosecution to prove that Haq was sane at the time of the rampage. Although the judge observed that Washington's higher courts had "not squarely resolved" this issue, prosecutors argued that a century of state law established that the burden was on the defense to prove insanity. (States handle this issue differently, with about one-third of states putting the burden on the prosecution to prove sanity beyond a reasonable doubt.)

In another evidentiary issue, the judge ruled last week that Haq's videotaped statement to police could not be introduced at his trial, because police ignored not just one but at least six requests for an attorney.

The Seattle Times has ongoing coverage; Wikipedia has additional background on the case.