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THE NEW DIMINISHED CAPACITY DEFENSE IN WASHINGTON By Brett C. Trowbridge,
Ph.D., J.D. Originally published
in: INTRODUCTION The diminished capacity defense has existed in Washington since 1925. [1] All Washington felonies involve as an element the requisite mental state required to commit the crime. RCW 9A.08.010(1) lists four possibilities: intent, knowledge, recklessness, or criminal negligence. Most diminished capacity defenses are aimed at negating either "knowledge" or "intent". In a diminished capacity case the State has the burden to prove the defendant formulated the appropriate mental element, beyond a reasonable doubt, as opposed to a defense of insanity, which has long been held to be an affirmative defense, in which the defendant has the burden of proving he was insane at the time of the incident by a preponderance of the evidence. [2] Furthermore, if the defendant prevails in an insanity defense he is likely to be sent to a state mental hospital for treatment, and may be held in the hospital as a patient for up to as long as the maximum sentence for the crime charged. However, if the defendant prevails in a diminished capacity defense he will either be acquitted outright, or will be convicted of a lesser degree of offense than the one charged. Finally, an insanity defense requires that the reason for the incapacitation be a "mental disease of defect", but any incapacitating factor can be used in a diminished capacity defense, including voluntary intoxication. [3] For all of these reasons the diminished capacity defense has become more popular than the insanity defense. BACKGROUND Various developments have served to broaden the diminished capacity defense in Washington. The common law presumed that every person intended (or knew) the natural and probable consequences of his own voluntary acts, and juries were instructed that "intent" or "knowledge" could be presumed if it appeared that the defendant was acting "intentionally" or "knowingly". [4] However, in 1977 the Washington Supreme Court struck down presumptions which shift the ultimate burden of persuasion to the defendant, indicating the jury must be informed that any presumption is permissive, not mandatory. [5] The United States Supreme Court also struck down a presumption of intent as an impermissible shifting of the burden of proof to the defendant. [6] Indeed, it struck down even rebuttable presumptions of intent. [7] The result is that "intent" and "knowledge" can no longer be presumed from acts, and only the statutory definitions of "intent" and "knowledge" may be given in jury instructions.8 Therefore, the State must now prove the mental element in each crime beyond a reasonable doubt with no presumption the accused intended the ordinary consequences of his voluntary acts. It may be very difficult for the State to prove the defendant "intended" or "knew" what he was doing if it cannot suggest that the voluntary act itself suggests such "intent" or "knowledge". Furthermore, although before 1983 no instruction could be given on diminished capacity since the statutory definitions of "intent" and "knowledge" were thought to be sufficient, in 1983 the Washington Supreme Court reversed this policy, stating that instructions on diminished capacity should be given if there had been substantial evidence the defendant's diminished capacity had negated knowledge or intent.9 The court suggested the following instruction:
Obviously this creates a permissive presumption in favor of the defense, since it permits the jury to conclude that mental illness could negate the mental element. A similarly worded instruction has also been upheld for intoxication cases.10 It is frequently said that insanity and diminished capacity are conceptually different, because with an insanity defense the defendant intended (or knew) what he was doing, but thought he was justified in doing so because of some delusion, but with a diminished capacity defense, the defendant did not "intend" (or "know") what he did. Thus, in the case of a charge involving "intent" it is said that diminished capacity goes to whether the defendant actually intended to commit the crime, whereas in insanity cases the prosecution must prove the defendant committed all elements of the crime, including intent. For an insanity defense the defense must prove that "At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that: (a) He was unable to perceive the nature and quality of the act with which he is charged; or (b) He was unable to tell right from wrong with reference to the act charged." RCW 9A.12.010. Thus, insanity is a defense of confession and avoidance ("I did intend it, but I thought I was justified."), but diminished capacity is a defense of denial ("I didn't intend to do it."). However, in practice this distinction becomes unclear
because of the statutory definition of intent, which is used to instruct the
jury as follows: "A person acts with intent or intentionally when acting
with the purpose to accomplish a result which constitutes a crime."
WPIC 10.01 The defense can argue that the delusion which the defendant had,
under which he thought his conduct justified, shows he did not intend to act
with the purpose to commit a crime. For example, a A recent Division 1 Court of Appeals case is an instructive example.11 The defendant was charged with unlawful delivery of a controlled substance, and at trial he sought to call an expert witness, a Dr. Rose, who would testify that his organic brain damage, major depression, and gambling, alcohol, and cocaine problems impaired his ability to form the requisite criminal intent because he was operating under the delusion that he was acting on behalf of the police to help them to capture a "main" drug dealer. At the conclusion of this expert's proferred testimony the trial judge refused to allow the testimony, ruling that it was not material to a diminished capacity defense. The trial judge said that Atsbeha's condition "is what I would find to be insanity", not diminished capacity, and stated, "There is no evidence that we have before us that [Atsbeha] lacked the specific intent to be able to deliver an object from one person to another." The jury convicted Atsbeha, and upon appeal the court held that, "In this case, if Atsbeha believed that he was helping the police capture a "main" drug dealer, that belief even though irrationally formed because of the very nature of his profound disorder would indeed negate specific intent, that is, acting with the objective to produce a result that constitutes a crime, even though Atsbeha could, according to Dr. Rose, respond to a request to do a physical act, that is, to buy something and give it to another person right away." The case was reversed and remanded for a new trial because Dr. Rose's testimony was material and relevant to Atsbeha's diminished capacity defense, and "criminal defendants have a constitutional right to present material and relevant testimony in their defense". The prosecution has appealed this case to the Washington Supreme Court, but the case has not yet been decided. Obviously in this case there is no clear conceptual distinction between insanity and diminished capacity. For both criminal and civil cases, Washington follows the Frye test for admissibility of scientific expert opinion evidence, under which scientific opinion evidence is to be admitted only if the scientific principles from which the opinions are deduced is sufficiently established to have gained general acceptance in the relevant scientific community.12 Washington does not follow the federal rule for admissibility of scientific testimony announced in Daubert v. Merrill Dow 13, but does generally follow the Federal Rules of Evidence. In 1979 the Washington Supreme Court adopted new Evidence Rules that are worded almost exactly the same as the evidence rules which had been passed by Congress and thus enacted as the Federal Rules of Evidence in 1975. Washington's Evidence Rule 702 (worded exactly the same as Fed.R. Evid. 702) directs itself to whether the proposed expert testimony would be "helpful to the trier of fact":
In other words, after a theory has met the Frye test, that is not the end of the inquiry, because the trial court must then determine whether the proposed testimony would be "helpful to the trier of fact" under Washington's ER 702. State v. Cauthron14, enunciated the two-part test to be applied under ER 702: whether, 1.) the witness qualifies as an expert, and 2.) the expert testimony would be helpful to the trier of fact. When reviewing this ER 702 analysis, the reviewing court will give deference to the opinion of the trial court. The Cauthron Court stated, "Unless there has been an abuse of discretion, this court will not disturb the trial court's decision." REQUIREMENT OF EXPERT TESTIMONY FOR DIMINSHED CAPACITY BASED ON MENTAL DISORDER State v. Stumpf sets forth how both expert and lay opinion evidence can be used in cases involving mental defenses.15 In Stumpf the defendant was convicted at the trial court level of the attempted murder of his wife. At pre-trial hearings he indicated his intent to use a "diminished capacity" defense. However, at trial he presented no expert testimony to support his contention he suffered from diminished capacity at the time of the attack, so the trial court did not allow lay opinion evidence as to his alleged diminished capacity, and did not allow a jury instruction on diminished capacity, even though the defendant had testified he had suffered from "command delusions" which prevented him from having had the requisite intent to cause his wife's death. On appeal Division II of the Washington State Court of Appeals held that expert opinion evidence is required for a diminished capacity defense, and stated that the trial court correctly declined to allow a diminished capacity instruction or to allow lay opinion evidence since no expert opinion evidence on diminished capacity was offered. The court explained the ruling as follows:
Using this logic, it seems clear that expert opinion evidence would also be required for other mental defenses, such as incompetency, insanity, childhood incapacity, etc., and that lay opinion evidence would also not be allowed in those cases unless expert testimony was also being presented. However, no expert testimony is required to establish whether a defendant was intoxicated at the time of an alleged offense, as the subject matter of intoxication is not thought to be beyond the expertise of a lay jury.16 Sometimes lay opinion evidence will be admitted as character evidence under ER 404(a)(1), under which an accused may introduce evidence of a "pertinent" state of his character. The Washington Supreme Court addressed this issue in State v. Eakins17. Eakins was convicted at the trial court level of two counts of second degree assault. He admitted he had pointed a loaded gun at two people, but claimed prescription drug and alcohol intoxication had interacted with his mental disorder, and that the resulting condition had induced diminished capacity. A psychiatrist testified Eakins had been incapable of forming the "intent" to assault on the night in question based on his depression and his consumption of alcohol and anti-depressants. Eakins also sought to introduce fifteen lay character witnesses, each of whom would testify to his peaceable nature, but the trial court would not allow these witnesses, holding that since Eakins had admitted to the acts charged, and since the only issue was whether he had had the requisite "intent" to assault, the offered character evidence was irrelevant to that issue. The Court of Appeals reversed, holding that since intent was an essential element of the crime charged the reputation evidence should have been admitted under ER 404(a)(1). The Washington Supreme Court affirmed the Court of Appeals' decision, holding that "pertinent" is synonymous with "relevant" under ER 404(a)(1). The court held:
ADMISSIBILITY OF TESTIMONY ON DIMINISHED CAPACITY Until relatively recently admissibility of expert testimony in diminished capacity cases was strictly limited by State v. Edmon18, which set forth nine foundational requirements (factors), all of which had to be met before an expert could give an opinion as to diminished capacity. However, the Edmon factors’ applicability has been severely limited by the holding in State v. Ellis19, in which the Washington Supreme Court indicated that the ER 702 analysis and the Frye test outlined above were now the appropriate method for trial courts to use in determining the admissibility of expert opinions in the area of diminished capacity. Ellis was an aggravated murder (death penalty) case in which the defendant allegedly bludgeoned his mother and half-sister to death. At a pre-trial hearing the defense elected not to call any witnesses, instead relying on their written motions, but the prosecution called as "hostile witnesses" two psychologists the defense had listed in a letter to the prosecution informing them of the diminished capacity defense. At the hearing the prosecution also called a Western State Hospital psychologist. Both sides agreed the Edmon factors were the appropriate analyses to determine admissibility of the proffered testimony. The Western State Hospital psychologist testified that "ideally the causal nexus between the disability and the lack of intent requires either a scientific or a very good clinical explanation and the disability has to relate to a relatively well-defined and very serious mental disorder and not a minor disorder or personality disorder". The defense experts had diagnosed the defendant as having suffered from a personality disorder at the time of the alleged incident. One expert had opined the defendant had suffered from a borderline personality disorder with an impulse control disorder, and the other had stated he had suffered from antisocial personality disorder with an impulse control disorder. The defense argued that all nine of the requirements had been met, but the State argued that Edmon factors five, six, seven, eight, and nine had not been satisfied, which are: 5. The cause of the inability to form a specific intent must be a mental disorder, not emotions like jealousy, fear, anger, and hatred. 6. The mental disorder must be causally connected to a lack of specific intent, not just reduced perception, overreaction or other irrelevant states. 7. The inability to form a specific intent must occur at a time relevant to the offense. 8. The mental disorder must substantially reduce the probability that the defendant formed the alleged intent. 9. The lack of specific intent may not be inferred from the evidence of the mental disorder, and it is insufficient to give only conclusory testimony that a mental disorder caused an inability to form specific intent. The opinion must contain an explanation of how the mental disorder had this effect." (cites omitted) The State also argued that the testimony of one of the psychologists had not met the requirements of Edmon factors three and four: 3. The expert personally examines and diagnoses the defendant and is able to testify to an opinion with reasonable medical certainty. 4. The expert's testimony is based on substantial supporting evidence in the record relating to the defendant and the case." (cites omitted) The trial judge granted the State's motion to exclude the testimony. Discretionary review was granted by the Washington Supreme Court. Although the defense had not argued at the trial court level that an ER 702 analysis should have been used instead of an Edmon analysis, it so argued to the Washington Supreme Court, and the court accepted that argument, stating:
WPIC 6.51 reads as follows:
In its summary the Washington Supreme Court admitted that the Edmon "foundational requirements" "had not been satisfied", but stated again that Edmon was not controlling. The court indicated the testimony of the witnesses "should be allowed under ER 702. (The witnesses) would be subject to cross-examination as they were as "hostile witnesses" in the pre-trial proceeding on the motion in limine. The trier of fact, the jury, can then determine what weight, if any, it will give to their testimony. This is fundamentally fair and consistent with due process." DID AND DIMINISHED CAPACITY OR INSANITY Any question as to the remaining validity of the Edmon factors was resolved in State v. Greene20, another Washington Supreme Court case which involved the diagnosis of dissociative identity disorder (DID), also known as multiple personality disorder. Greene had pled guilty in an unrelated case to indecent liberties, and had been incarcerated in a prison sex offender treatment program where he underwent treatment with a female psychotherapist, M.S. During the treatment M.S. diagnosed him as suffering from DID as she felt Greene manifested 24 separate identities. When Greene was released from prison M.S. continued to treat him, sometimes at his home. On the occasion in question Greene allegedly sexually assaulted her, left her bound and gagged in his home, and drove off in her car. According to the Washington Supreme Court, "The victim, M.S., was prepared to testify regarding her overall evaluation of the defendant in terms of his personality "system", as well as her perception of the personalities present at the time of the assault. In M.S.' opinion, there were several personalities present at the time of the assault: "Bill", the host personality; "Tyrone", a child alter who appeared to be around the age of three or four; "Sam", another alter; as well as a fourth unidentified alter, possibly "Otto". (cite omitted) Nevertheless, in support of the defense's theory of the case, M.S. was prepared to testify that the child alter, "Tyrone", was primarily in control at the time of the assault, and there were "substantial amnestic barriers" between Tyrone and the other personalities." The primary issue upon appeal was whether DID testimony is admissible under Frye and ER 702 in insanity or diminished capacity cases. At a pre-trial hearing the trial court determined that testimony about DID was not admissible under Frye or ER 702, and after a jury trial Greene was convicted of indecent liberties and first degree kidnapping. The Court of Appeals reversed, but the State sought review to the Washington Supreme Court. The Washington Supreme Court felt that the appropriate Frye analysis was whether the diagnosis itself was generally accepted in the scientific community, not whether the scientific community had reached consensus as to the relationship between DID and insanity or between DID and diminished capacity. The Court felt DID was a generally accepted diagnosis since it is included in The Diagnostic & Statistical Manual of Mental Disorders (4th ed. 1994), usually referred to as DSM IV; thus DID testimony meets the Frye test in Washington, because "DSM IV's diagnostic criteria and classification of mental disorders reflect a consensus of current formulations of evolving knowledge in the mental health field." (cite omitted) Obviously, any other DSM IV diagnosis should also meet the Frye test under the same analysis. However, the Court went on to hold that although the DID testimony met the Frye test, it was not admissible under ER 702 because it was "not helpful to the trier of fact":
The Court felt that the "scientific principle" underlying DID was "generally accepted in the scientific community" under Frye, but nonetheless "incapable of forensic application" and thus not "helpful" to the jury under ER 702 because there is no generally agreed upon way of applying the DID concept to the issue of criminal responsibility. If only one of the "personalities" was responsible for committing the crime, should the defendant be held responsible? That personality is part of the defendant's psychological make-up, but so are his other personalities, and it is not possible to put one in jail or in a mental institution, but to allow the others to remain free! And is it possible to hold an alter such as "Tyrone" responsible if he supposedly only three or four years old? The Court pointed out that in their last DID case 21, they had "refused to adopt a legal standard by which to assess the sanity of a criminal defendant suffering from multiple personality disorder. Our decision was based in large part on the lack of consensus, both in the courts and in the medical community, on the proper forensic method to be used. (cite omitted) We find ourselves in no better position today than we did then." The Court concluded, "We do not exclude the possibility that there may be a case in which the sanity of a defendant suffering from DID can be reliably evaluated. However, based upon the evidence and testimony presented here, we do not find this to be such a case. Accordingly, we must agree with the trial court that the proposed expert testimony in this case was inadmissible under ER 702 because it would not have been helpful to the trier of fact.... In this case DID testimony was properly excluded because to was not possible to reliably connect the symptoms of DID to the sanity of mental capacity of the defendant." In a footnote the Greene court went on to make the following statement, "ER 702 controls the analysis for both insanity and diminished capacity. The State asks us to revisit our recent decision in State v. Ellis (cite omitted), in which we held the admissibility of expert testimony regarding diminished capacity to be determined under ER 702 (cite omitted). We decline the State's invitation. ER 702 is the standard for the admissibility of expert testimony in Washington." CAN PERSONALITY DISORDER DIAGNOSES QUALIFY? Greene clearly established that the holding in Ellis was not confined only to capitol murder cases, but applies presumably to all cases involving testimony about a defendant's mental state at the time of an offense. It would appear that the rigorous approach under the Edmon factors for diminished capacity cases is no longer operative, having been rejected in favor of the more discretionary approach under ER 702. The only apparent exception is the requirement that the expert must have personally examined and diagnosed the defendant.22 These cases show that any DSM IV diagnosis is presumably admissible under Frye; diminished capacity and insanity cases are no longer limited to diagnoses involving major mental illnesses, and even personality disorders will qualify, as in Ellis. However, the expert must be able to show to the trial court's satisfaction that his diagnosis of the defendant is forensically applicable (forensically relevant) to the legal test involved. Evidence that does not help the trier of fact resolve any issue of fact is irrelevant and inadmissible under ER 702. IS "REASONABLE CERTAINTY" REQUIRED? The question still remained whether the Edmon requirement that the expert be able to testify that he holds his opinion within "reasonable medical certainty" was still operative, but that issue seems to have been resolved by a recent case from Division I of the Washington State Court of Appeals.23 Mitchell was appealing his conviction of one count of third degree assault and two counts of fourth degree assault, contending that the trial court had erred when it had ruled that his proffered expert testimony as to diminished capacity had been inadmissible under either an Edmon or an ER 702 analysis. Mitchell had been walking down a sidewalk when for no apparent reason he had allegedly punched a twelve-year-old boy in the face. He continued walking, and three plain-clothed officers approached him. One of them yelled, "Seattle police... you're under arrest", and showed Mitchell her badge, but Mitchell allegedly punched her in the face. A struggle ensued, and Mitchell was arrested with the help of nearby citizens. He was soon sent to Western State Hospital where he was initially thought to be incompetent to stand trial because of schizophrenia, although it was felt he had regained competency after a three month period of treatment with psychotropic medication. Mitchell's attorney asserted diminished capacity, and the trial court held a hearing at which Mitchell's expert, a psychologist, testified that he was "one hundred percent certain" that Mitchell suffered from a mental disorder, most likely a schizophrenic disorder. However, he was not able to testify he was "certain" that the mental disorder had caused him to be unable to form the requisite "knowledge" required; the prosecution had to prove that the defendant knew the victim was a police officer performing official duties at the time. The psychologist could testify only that the disorder "would have the potential to interfere with his knowledge". Noting that Edmon "is the controlling authority" the trial judge ruled the testimony was inadmissible, holding that the psychologist's opinion would confuse the jury and invite it to speculate unless the psychologist could also state that Mitchell's disorder was actually affecting his conduct at the time of the incident. The Court of Appeals decided that "reasonable medical certainty" as to whether the disorder had actually produced the asserted impairment is not necessary, specifically stating that it is only necessary that the expert testify that "it could have" done so. The court stated,
This holding appears to over-rule a line of cases in which courts have held that the expert must hold his opinion with "reasonable certainty" before it is admissible.24 However, the holding seems to be consistent with a line of Washington cases holding that the expert's inability to be certain goes to the weight of his testimony, not to the admissibility. In State v. Lord25, the court noted:
Thus, it appears now that excluding expert testimony as to a defendant's mental state at the time of an alleged crime is disfavored under Washington's ER 702 analysis, whereas before it was commonly done. Furthermore, the expert does not have to be sure that the defendant's disorder caused him to be unable to form "intent" or "knowledge" -- the expert only has to be able to testify that it is possible that the disorder caused the defendant to have diminished capacity. Obviously in many cases this is very helpful to the defense. It is not uncommon for a mentally disordered individual to be unable or unwilling to describe to the expert in any detail what was going on in his mind at he time of an alleged crime, so in the past experts often had great difficulty testifying as to "reasonable certainty" that the disorder had caused the individual to have a mental defense. Indeed, such was the case in Mitchell, in which the defendant was only able to tell the expert that he "did not believe they were police", but was unable or unwilling to provide more information. As the Mitchell court stated,
Obviously this opens up the possibility for the expert to speculate as to the defendant's mental state at the time. Since the expert only has to opine that it was possible that the defendant suffered from a delusion, the expert does not have to know what the delusion was -- only that there is some possible delusion which would have led to the mental defense! DISCOVERY ISSUES AND COMPELLED EXAMINATIONS Washington law has long held that a defendant asserting an insanity defense can be forced to submit to a mental health evaluation by an expert chosen by the State, as insanity is considered an "affirmative defense".27 Washington follows the U.S. Supreme Court in that regard.28 However, until about ten years ago it was not clear whether a defendant asserting a diminished capacity defense could be forced to participate in an examination by a State appointed expert.29 In State v. Hutchinson30, the Washington Supreme Court resolved that issue, holding that a defendant who has indicated that he will rely upon diminished capacity as a defense, but who has not asserted the defense of insanity, can be compelled to submit to a psychiatric and/or psychological examination by an agent of the prosecuting attorney. Defense counsel are entitled to attend any examination of the defendant by the prosecution's expert witnesses, but may not interfere with or participate in the examination. The Court held that because of the defendant's right against self-incrimination, any statement the defendant made about the offense itself to the State's expert could be suppressed. Furthermore, if the defendant takes the stand the trial court should protect the defendant's Fifth Amendment interests by "refusing to allow cross-examination on statements that might appear confessional."31 Citing an Iowa case State v. Craney32, the Hutchinson Court stated, “We follow State v. Craney, supra at 673, in holding
The trial court had ordered the defense experts to write reports at the request of the State, even though the defense had not asked them to prepare such reports. In Hutchinson the Washington Supreme Court also ruled that CrR 4.7(g), under which the Court may require the defendant to "disclose any reports or results, or testimony relative thereto, of physical or mental examinations or of scientific tests, experiments or comparisons, or any other reports or statements of experts which the defendant intends to use at a hearing or trial", the disclosure of any existing reports of mental examinations which have been written is required, but does not require the preparation of such reports if they have not already been prepared. The Court ruled, "The clear language of the rule does not authorize the trial court to require the defendant's experts to prepare written reports for the State when they have not been prepared for the defendant”. A trial court may order a defense attorney to tell the State what the nature of the defense will be, and may order a defense expert to talk to a prosecutor, and to reveal his notes, testing, and background information, but a court may not require a defense expert to write a report if no report has already been prepared. A Division I Court of Appeals case, addressed the issue of whether in a diminished capacity case the defense experts who not found in favor of the defendant had to be revealed to the State, and whether such experts could be used by the State against the defendant.33 It is well settled in Washington that in insanity cases the State has the right to know who the experts are who have evaluated the defendant but will not be called at trial, and to use such experts as part of their own case against the defendant.34 The Hamlet Court decided that the same rule applies to diminished capacity cases, even though diminished capacity is not an affirmative defense as insanity is; in Hamlet the State was even allowed to elicit from the expert that he had originally been retained by the defense. Obviously, "incriminatory" statements made by the defendant to the defense-retained expert should be suppressed during trial as discussed in Hutchinson, supra. The Hutchinson Court, citing a Colorado case35, stated:
Taken together, these cases indicate that there is no practical distinction now between how insanity cases and diminished capacity cases are handled except that the burden of proof is different. For both types of cases (and presumably for all other types of cases involving mental health experts, e.g. competency, juvenile incapacity, self-defense) all experts must be revealed to the other side, and the defense may not "hip-pocket" a witness whose findings were not favorable. In other words, the prosecution may now routinely ask in discovery what experts have evaluated the defendant, and the defense counsel must reveal all such experts, even those whose findings are against the defendant's position. The prosecution may also call such witnesses, may elicit from them that they were originally retained by the defense, and may inquire as to their opinions (even if those opinions are adverse to the defendant), but may not have them testify as to "incriminatory" statements made by the defendant. Each side must inform the other side in discovery what its experts will say in court, and must make its experts available for questioning by the other side, but no expert can be compelled to prepare a report by the side which did not originally retain him. CONCLUSION Whereas before it was at times difficult to have expert psychological or psychiatric testimony admitted in diminished capacity cases, it appears that now excluding such testimony is disfavored. Whether the expert can testify with "reasonable certainty" will not be determinative, since such issues go to the weight to be given to the testimony, not to its admissibility, and juries will be instructed under WPIC 6.51 that they may disregard the expert testimony if they wish to do so. Diagnoses in DSM IV will usually be allowed as meeting the Frye standard of general acceptability, even diagnoses often excluded previously, such as personality disorders. Testimony will be "useful to the trier of fact" under ER 702 if it has "forensic applicability", which seems to mean that there is a clear and generally accepted way for the testimony to be applied to the legal test at hand. All experts who have evaluated the defendant for either side must be revealed, and although they may not be required to prepare reports that do not already exist, all aspects of their evaluation and their opinions must be revealed before trial. [1] State v. Beyers, 136 Wn. 620 (1925) [2] McAllister v. Territory, 1 Wn. Terr. 360 (1872) [3] State v. Norby, 20 Wn. App. 378 (1978); RCW 9A.16.090 [4] State v. Utter, 4 Wn. App. 137 (1971) [5] State v. Roberts, 88 Wn. 2d 337 (1977) [6] Sandstrom v. Montana, 442 U.S. 510 (1979) [7] Francis v. Franklin, 471 U.S. 307 (1985) 8 RCW 9A.08.010(1)(a) and (b); WPIC 10.01 9 State v. Griffin, 100 Wn. 2d 417 (1983) 10 State v. Corwin, 32 Wn. App. 493 (1982); WPIC 18.10 11 State v. Atsbeha, 96 Wn. App. 654 (1999) 12 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923); State v. Woo, 84 Wn. 2d 472 (1974); Reese v. Stroh, 128 Wn. 2d 300 (1995); State v. Copeland, 130 Wn. 2d 244 (1996) 13 Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) 14 State v. Cauthron, 120 Wn. 2d 879 (1993) 15 State v. Stumpf, 64 Wn. App. 522 (1992) 16 State v. Smissaert, 41 Wn. App. 813 (1985) 17 State v. Eakins, 127 Wn. 2d 490 (1995) 18 State v. Edmon, 28 Wn. App. 98 (1981) 19 State v. Ellis, 136 Wn. 2d 498 (1998) 20 State v. Greene, 139 Wn. 2d 64 (1999) 21 State v. Wheaton, 121 Wn. 2d 347 (1993) 22 State v. Stumpf, 64 Wn. App. 522 (1992) 23 State v. Mitchell, No. 42944-I (Feb. 14,2000) 24 McLauglin v. Cooke, 112 Wa.2d 829 (1989) 25 State v. Lord Wn.2d 829 (1991) 26 See also State v. Warness, 77 Wa.App 636 (1995). 27 State v. Nuss, 52 Wn. App 735 (1988); State v. Brewton, 49 Wa. App 589 (1987) 28 Estelle v. Smith, 451 U.S. 454 (1981) 29 See Trowbridge, B, Competency, and Criminal Responsibility in Washington, 21 Gonzaga Law Review 691 (1986). 30 State v. Hutchinson, 111 Wn. 2d 872 (1989) 31 State v. Brewton, 49 Wn. App. 589 (1987); State v. Hutchinson, 111 Wn .2d 872 (1989) 32 State v. Craney 347 N.W. 2d 668 (1984) 33 State v. Hamlet, 83 Wn. App. 350 (1996) 34 State v. Pawlyk, 115 Wa.2d 457 (1990) 35 People v. Rosenthal, 617 P.2d 551 (1980)
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