Trowbridge Foundation: Current Article in Full

EVOLVING STANDARDS FOR ADMISSIBILITY OF EXPERT AND LAY

OPINIONS IN MENTAL DEFENSE CASES IN WASHINGTON

By Brett C. Trowbridge, Ph.D., J.D.

This article supported by The Trowbridge Foundation

ABSTRACT

Traditionally Washington has followed the "Frye" test for admissibility of scientific evidence through opinions of experts. Frye v. U.S., 293 F. 1013 (D.C Cir. 1923). Under this standard, 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. Scientific evidence is admitted through the opinions of experts, who have to be qualified as experts by means of their training and/or their experience. Experts can use as the bases of their opinions information, which would not otherwise be admissible. Lay witnesses' opinions, on the other hand, cannot be based on hearsay, but instead have to be based on their personal knowledge. For example, a lay witness can only testify that in his opinion a person was intoxicated based on his personal observation of the person at the time, but an expert witness can use what he was told (hearsay) by witnesses at the scene and other information to form the basis of his opinion as to whether the person was intoxicated.

In the past there were some distinctions between insanity cases and diminished capacity cases, since the defense bears the burden of proving insanity by a preponderance of the evidence, and insanity is therefore an "affirmative defense", whereas in diminished capacity cases the prosecution has the burden of proving the requisite mental state beyond a reasonable doubt. However, such differences have now all but disappeared in Washington law. Furthermore, until recently the foundational requirements that had to be met before an expert could testify to diminished capacity were relatively strict, but now these requirements have been reduced under the more discretionary test of ER 702, and diagnoses such as personality disorders may now form the basis of diminished capacity defenses although in the past such diagnoses did not qualify. Finally, in the past experts generally had to be able to testify to their opinions with "reasonable scientific (or "medical") certainty", but this requirement has now apparently also been abolished.

FRYE

As an example of the application of Frye, in State v. Woo, 84 Wa.2d 472 (1974) the Washington Supreme Court held that polygraph evidence is inadmissible in Washington absent an agreed stipulation to admissibility by both sides. Frye itself had been a polygraph case, and had come down against the admissibility of polygraph evidence because it was not generally accepted in the scientific community. In Woo the Washington Supreme Court saw no reason to depart "from a virtually unanimous rule against the admissibility of polygraph examinations". In State v. Canaday, 90 Wa.2d 808 (1978) the Washington Supreme Court upheld the findings of superior courts that ampoule retesting procedures were not generally accepted in the community of breathalyzer scientists, thus holding that opinions based on such procedures were inadmissible. In elucidating the Frye standard the Court stated,

"The rationale of the Frye standard is that expert testimony may be permitted to reach a trier of fact only when the reliability of the underlying scientific principles has been accepted by the scientific community (cite omitted). In other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate. This court adheres to the rule that the reliability of scientific evidence must be shown as a prerequisite to its admission (cite omitted). We therefore hold that the superior courts below properly applied the Frye standard of general acceptance in the scientific community to determine the admissibility of expert testimony regarding retesting of breathalyzer ampoules."

DAUBERT AND FED. R. EVID. 702

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. In 1993 the United States Supreme Court decided Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, and held that the legislatively enacted Federal Rules of Evidence, and in particular Fed. R. Evid. 702, superseded Frye's "general acceptance" test. Rule 702 directs itself to whether the proposed expert testimony would be "helpful to the trier of fact"

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

The Daubert court said that under this rule "general acceptance" is not a necessary precondition to admissibility. It also said that the requirement that the expert's opinion rest on "scientific...knowledge" assigns to the trial court the task of ensuring that the expert's opinion testimony rests on a reliable foundation, and that it has a reliable scientific connection to the inquiry. Under this Daubert analysis the trial judge must determine at the outset under Fed R. Evid. 104 whether the expert will be testifying to scientific knowledge which will assist the trier of fact. This requires a preliminary determination whether the reasoning and/or methodology underlying the testimony is "scientifically valid", and whether it can be applied to the facts at issue. The Daubert court listed several non-exclusive factors which a court could use to determine whether a particular scientific theory and its associated methodology were scientifically valid, including whether the theory can be or has been empirically tested, whether the theory has been subjected to peer review, whether there is a known or potentially knowable error rate in application of the methodology, and whether the theory was generally accepted in the scientific community. Thus, "general acceptance" could be utilized as one factor, but was not necessarily the dispositive factor, or even a factor which had to be considered by federal courts. The Daubert court ruled that shaky scientific evidence that nevertheless was admitted could be attacked by cross-examination, and seemed to be admitting that the Daubert test was less conservative in the sense that more opinions could be admitted as "scientific" than had previously been possible under Frye, which required as an absolute prerequisite to admissibility that the theory be "generally accepted".

Daubert now applies in Federal Court, and a number of states have adopted it as well.

WASHINGTON FOLLOWS FRYE

The question arose whether the Washington Supreme Court was going to continue to use Frye or was going to adopt Daubert. In State v. Cauthron, 120 Wa.2d 879 (1993), a DNA case, it declined to adopt Daubert, which it referred to as the "reliability test"; instead, it indicated it would apply the Frye test to "novel" scientific evidence.

"We have consistently applied the Frye test, however. The Frye test is more conservative than the reliability test; that is, the court is less inclined to admit evidence which is still disputed in the scientific ommunity. Thus, in making the initial determination to allow novel scientific evidence, we do not examine its reliability, but instead focus on whether it is generally accepted in the scientific community."

The court made it clear that a Frye determination would not have to be made each time a particular theory came up, since once the Washington Supreme Court had found a particular theory to be "generally accepted" the lower courts could rely on that finding in the future.

"Once this Court has made a determination that the Frye test is met as to a specific novel scientific theory or principle, trial courts can generally rely upon that determination as settling that theory's admissibility in future cases. However, trial courts must still undertake the Frye analysis if one party produces new evidence which seriously questions the continued general acceptance or lack of acceptance as to that theory within the relevant scientific community."

The court again made it clear that the scientists should decide admissibility under the "general acceptance" test, as opposed to the Daubert method where the court itself decides whether a given theory is scientific.

"Because judges do not have the expertise required to decide whether a challenged scientific theory is correct, we defer this judgment to the scientists. If there is a significant dispute between qualified experts as to the validity of scientific evidence it may not be admitted."

The Court also explained that it would review a trial court's determination as to whether a given theory was "generally accepted" de novo. In other words, it would not defer to the trial court's judgment, but would do its own independent analysis of whether the theory was "generally accepted".

"The reviewing court takes a more searching review one that is sometimes not confined to the record. Because it is impracticall to parade a true cross-section of scientists before the court, the scientific literature must be considered on the ultimate issue of consensus. Decisions from other jurisdictions may be examined as well, but the relevant inquiry is the general acceptance by scientists, not by the courts."

The Court made it clear that he Frye test applies only to the overall theory and to its general methodology, but not to the specific example of the methodology used in the case at hand.

"The core concern of Frye is only whether the evidence being offered is based on established scientific methodology. This involves both an accepted theory, and a valid technique to implement that theory. It is important to distinguish, however, between the general acceptance of the methodology, and the acceptance of the results of a particular study or of the laboratory testing procedures in the case before the court. If the particular technique is sufficiently accepted in the scientific community at large, any remaining concerns about the possibility of error or mistakes being made in the case at hand can be argued to the fact finder."

WASHINGTON'S ER 702

However, after the 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, worded the same as Fed. R. Evid. 702. Cauthron 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."

RUSSELL

In the next important Washington case on the admissibility of scientific opinion evidence, State v. Russell, 125 Wa.2d 24 (1994), a crime scene analysis/profiling case, the Washington Supreme Court again addressed the issue of whether a trial court should not allow evidence because the particular example of the methodology used in the case was flawed. It stated:

"If the testing before the trial court shows that the testing procedure as performed was so flawed as to be unreliable, the results may be inadmissible because they are not helpful to the trier of fact (cite omitted). If the evidence survives an ER 702 challenge, however, these questions are to be considered by the trier of fact in assessing the weight to be given to the evidence."

Thus, it seems there are at least some cases in which the particular "testing" used by the expert in the case at hand in forming his opinion could be so "flawed" that the trial court should determine it to be inadmissible under ER 702.

The Russell court also reiterated that the old rule that an expert may base his opinion on otherwise inadmissible evidence still remains under the new rule on that subject, ER 703, which reads:

"The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."

The Russell court also indicated that ER 705 in turn governs the disclosure of facts underlying an expert's opinion, and provides as follows:

"The expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination."

FRYE AND ER 702 APPLY TO CIVIL CASES

In 1995 the Washington Supreme Court in Reese v. Stroh, 128 Wa.2d 300, a medical malpractice case, cleared up any remaining confusion about whether the Frye test and its associated ER 702 analysis applies to civil cases as well as criminal cases by ruling that the Frye analysis applies to all issues involving the admissibility of novel scientific evidence, both civil and criminal.

"BEST OF BOTH WORLDS"

In the next important case, State v. Copeland, 130 Wa.2d 244 (1996), another DNA case, the Washington Supreme Court was faced with another invitation to substitute Daubert for Frye, but again it declined to do so. In that case the State of Washington was urging the adoption of the Daubert standard. The Washington Supreme Court explained why the Washington test is different from the federal test:

"The State contends that ER 702 should be construed identically to Fed. R. Evid. 702. We decline to interpret 702 as the United States Supreme Court has interpreted Fed. R. Evid. 702. First, while in Daubert, the Court observed that the legislative adoption of the Federal Rules of Evidence post-dated and superseded the Frye decision, in Washington the rules of evidence were adopted by this court and do not constitute a legislative enactment superseding Frye. Thus, when this court, after the rules of evidence were adopted, continued to adhere to Frye (cite omitted), we signaled that Frye and the evidence rules co-exist as the law of this state. Second, as we explained in Cauthron, we have already interpreted ER 702 as requiring as assessment of admissibility of scientific evidence under the helpfulness standard contained in the rule, thus providing in this jurisdiction the "best of both worlds".

PROCEDURE AND APPLICATION

What usually happens when one side wishes to present expert opinion testimony is that side makes an offer of proof as to the nature of the testimony. If the other side objects to the admission of the evidence under Frye the court must decide whether to hold a special hearing under ER 104(a) to determine whether the proffered testimony meets the Frye test, and the applicable language controlling whether such a hearing should be held is that a hearing should occur "when general acceptance is reasonably disputed". State v. Kunze, 97 Wa.App. 832 (1999). If the court finds that the general acceptance of the testimony cannot be "reasonably disputed" it must make specific judicial notice "in the same way as any other adjudicative fact". If the court rules that a hearing should occur (that the general acceptance of the testimony can be "reasonably disputed"), the burden at he hearing is on the party asking that the evidence be admitted to show by a preponderance of the evidence that the Frye test is met. Evidence at such a hearing can consist of articles or publications, holdings of other courts, and/or expert testimony. Washington courts are unanimous that the moving party's burden has not been met "if there is a significant dispute between qualified experts as to the validity of the scientific evidence". As mentioned above, appeals courts review a trial court's decision as to "general acceptance" after such a hearing "de novo".

State v. Kunze, 97 Wa.App. 832 (1999), a Division II Court of Appeals case, lays out clearly the procedures used both by the trial court and by appeals courts when Frye issues are involved. In that case the murderer's ear had apparently left a latent print on the outside of the door to the crime-scene room, and the prosecution was attempting to introduce expert testimony on latent earprint evidence. The description given by the victim's son did not match Kunze, but the police suspected him because he had previously been married to the victim's fiancé, and had been upset that he victim was about to marry her. Searches of Kunze's belongings revealed nothing of significance. However, a criminologist with the Washington State Crime Laboratory studied photographs of Kunze, and concluded his ear looked similar to the earprint left on the door. Numerous earprint exemplars taken with various degrees of pressure were taken of Kunze's ear in an effort to see whether one could be taken which would "match" the earprint left on the door. The criminologist was willing to testify that Kunze's ear was the likely source of the earprint.

Kunze moved for a pre-trial order excluding any evidence of earprint identification, and a Frye hearing was held under ER 104. At the hearing the criminologist testified that earprint identification evidence was generally accepted in the scientific community, stating, "The earprint is just another form of impression evidence." A Dutch police evidence expert said he had been to court six times with earprint evidence, all in Holland, and the judges there had "accepted that you can identify an individual by his earprint", but he did not present or refer to any published literature. An expert who had written two books on "the science of ear identification” testified his testimony had not been admitted in a Florida ear identification case, but had been admitted in a California case. He did not claim his system was generally accepted in the scientific community. Numerous other law enforcement experts testified that earprint evidence was not generally accepted in the scientific community. However, after the Frye hearing the trial judge entered written Findings of Fact and Conclusions of Law in which he found that earprint evidence has "gained general acceptance in the relevant scientific community”. At trial the State called as experts the criminologist and the Dutch police evidence expert. The criminologist testified to a "reasonable degree of scientific certainty" that Kunze's ear was the "likely source" of the earprint impression on the door. The Dutch expert testified, "I think it's probable it's the defendant's ear is the one that was found on the scene”, and said he was "one hundred percent confidant of that opinion". After Kunze's conviction he appealed. The Court of Appeals felt the two witnesses had testified as expert witnesses, and that the Frye standard therefore applied because the witnesses "necessarily had to be employing scientific, technical or specialized knowledge". Reviewing the Frye issue de novo, the court pointed out that "twelve long-time members of the forensic science community stated or implied that latent earprint identification is not generally accepted in the forensic science community". Finding that the record showed a "significant dispute between qualified experts" the court held that latent earprint identification was not "generally accepted". In remanding for retrial the Court indicated that opinions as to a "match" should not be allowed, but that similarities between the defendant's ear and the latent earprint could be admitted.

Another example of the Frye test as applied in Washington is State v. Carlson, 80 Wa.App. 116 (1995), a Division II Court of Appeals case which is relevant to psychological expert testimony. Carlson was convicted of child molestation in the first degree during a second trial for allegedly molesting his six year-old daughter, E; a first trial had ended in a hung jury. At the second trial a pediatrician, Dr. Virginia Feldman, was allowed to testify over objection from the defense, "I concluded that [E] had been sexually abused." She admitted this conclusion was not based on any physical findings, but was based solely on her interview with the child and her review of what the child had told other witnesses. She testified she held her opinion "within a reasonable degree of medical certainty". Dr. Feldman based her opinion on a certain scientific article which she cited which discussed standards to analyze the veracity of children's statements in such cases. Dr. Feldman said she had "applied those same standards" to the statements made by E. When asked specifically which standards proved E had been sexually abused, she replied, "I found the specifics, place frequency, presence of reward and element of secrecy, consistency between talking with different people about it, using her own terminology and she was scared during part of the interview and frequently put her head down on the desk to avoid certain questions." Dr. Feldman testified these standards were "generally accepted in the medical community".

Upon appeal the sole issue was whether the opinion testimony should have been allowed. Carlson argued Dr. Feldman had "testified as to her beliefs as to [the] credibility of the child". The Court ruled that Dr. Feldman had not done so, opining that if she had her testimony would clearly have been inadmissible, since "no witness may give an opinion on another witness's credibility". (Numerous citations were given as authority for that proposition.) The Court stated that a lay witness can not give an opinion on another witness's credibility since such an opinion would not be "helpful" under ER 701. Similarly, an expert opinion as to another witness's credibility would not "assist the trier of fact" under ER 702 "because there is not scientific basis for such an opinion, save the polygraph, and the polygraph is not generally accepted as a scientifically valid technique."

The Court opined that what Dr. Feldman had done was that she had offered an opinion as to whether E had been sexually abused, a different issue, as the Court saw it, than whether the child's claim she had been abused was credible. The Court felt that this opinion should not have admitted under ER 701 governing opinion evidence for lay witnesses, since, "Dr. Feldman lacked personal knowledge of whether E had been sexually abused”. The Court also held that Dr. Feldman's opinion should not have been admitted as the opinion of an expert witness. The Court test held that the Frye test was applicable, since "Washington law has never recognized the ability of a doctor or other expert to diagnose sexual abuse based only on the statements of the alleged victim. If Dr. Feldman had a scientific basis for her opinion concerning sexual abuse, that opinion surely is novel." The Court pointed out that a copy of the article on which Dr. Feldman had relied had not been made part of the case record, so "the record failed to show that the study resulted in any scientific theory or principle". However, the court pointed out in a footnote that on Frye issues it was permitted to go beyond the record, and indicated that it had looked up and read the article in question. In that article the authors had written, "We therefore suggest that the results be used as a base for further study and not as a definitive basis for proving that a case is or is not true." The court concluded, "Obviously the ... study does not provide a scientific basis that would allow a doctor or other professional to render an opinion concerning whether a particular child had been sexually abused based only on the statements of the child." Finally, citing as authority, the Court cited State v. Fitzgerald, 39 Wa.App. 652 (1985) for the proposition that "An expert may not offer an opinion on an ultimate issue of fact when it is based solely on the expert's perception of the witness's truthfulness." The case was reversed and remanded for further proceedings.

LAY OPINION EVIDENCE AND EXPERT OPINION EVIDENCE

The rule that in order to be admissible the opinion evidence must be "helpful to the trier of fact" also applies to lay opinions. State v. Ortiz, 119 Wa.2d 294 (1992) was a murder case in which much of the evidence was offered by Mr. Hardin, an expert tracker, who tracked the killer. The Washington Supreme Court seemed to be having difficulty deciding whether this evidence was "expert" opinion or "lay" opinion, but it determined the evidence was admissible under either analysis. ER 701, the rule on admissibility of lay opinions, provides:

"If the witness is not testifying as an expert, his testimony in the form of opinion or inferences is limited to those opinions or inferences which are (a)rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."

Since in this case Hardin had gone to the crime scene and had investigated the victim's house and the field behind her house, according to the Ortiz court his opinion was based on "personal knowledge", as required by ER 602. Furthermore, if analyzed as lay opinion evidence his testimony met ER 701 because Hardin was able to explain how his "perceptions in the field found a rational basis for the inferences presented in his testimony". The Ortiz court stated that Hardin's tracking analysis testimony could also be admitted as expert opinion evidence because Hardin was an expert on tracking based on his practical experience, and "practical experience is sufficient to qualify a witness as an expert."

The court decided that the Frye analysis did not apply, although arguably this was a "novel" type of evidence:

"Hardin's testimony was not based on novel scientific experimental procedures, but rather upon his practical experience and acquired knowledge. Moreover, no particularized background knowledge would be necessary to an understanding of the evidence Hardin presented."

Thus, it appears that in Washington a person offering "expert" opinion evidence can have his opinions admitted even if he is not scientifically trained and even if there is no scientific basis for his opinions or scientific acceptance of the theories behind his opinions. This is considerably different than the approach now taken in Federal courts under Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), which requires a Daubert analysis even for opinion evidence based on practical experience rather than scientific training or expertise.

State v. Stumpf, 64 Wa.App. 522 (1992) sets forth how both expert and lay opinion evidence can be used in cases involving mental defenses. 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 testimony by lay witnesses is governed by ER 701, as described above. In cases involving opinions about the defendant's mental state at the time of an alleged crime, the Stumpf court laid down the following three additional requirements:

(1) The lay witness must have had a sufficient acquaintance with the defendant or must have had sufficient time to observe the defendant (cites omitted), (2) the witness must testify, at least in a general way, as to the peculiar facts and circumstances on which his or her conclusion is based (cite omitted), and (3) the testimony must refer to the defendant's mental condition at or close to the time the witness made the observation and at or close to the time the offense at issue occurred (cite omitted).

Some or all of the lay opinion testimony in the defendant's offer of proof arguably could have met these tests, but the Stumpf court failed to address that issue, instead holding that expert opinion evidence is required for a diminished capacity defense, and stating 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:

"Although lay testimony may be admitted to supplement expert testimony if the proper foundational requirements are met, the existence of an alleged mental disorder such as that asserted here and its connection with the diminished capacity constitute subject matter beyond lay expertise. Therefore, when a diminished capacity defense is asserted in a criminal action, expert testimony is required to establish the existence of the alleged mental disorder, as well as the requisite causal connection between the disorder and the diminished capacity. In so holding we rely on the general rule that expert testimony is required when an essential element in a case is best established by opinion but the subject matter is beyond the expertise of a lay witness (cite omitted)."

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.

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. In State v. Eakins, 127 Wa2d. 490 (1995) the Washington Supreme Court addressed this issue. 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 had 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:

"To show diminished capacity, a criminal defendant must produce expert testimony demonstrating the defendant suffered from a mental condition that impaired his or her ability to form the requisite specific intent (cite omitted). Once this expert evidence has been received, the defendant's evidence of a pertinent character trait is admissible under ER 404(a)(1) to show circumstantially that the expert was correct. A pertinent character trait is one that is relevant to an essential element of the crime charged. Once the defendant has produced the appropriate expert testimony supporting a claim of diminished capacity, relevant character evidence is admissible even when specific intent is the only element at issue in the case."

Obviously this method of using lay opinion evidence would not be subject to the test established in Stumpf, outlined above, which requires that the witness must have observed the defendant at or near to the time of the incident (see Justice Guy's concurring opinion in Eakins).

ADMISSIBILITY OF TESTIMONY ON DIMINISHED CAPACITY

Until relatively recently admission of expert testimony in diminished capacity cases was strictly limited by State v. Edmon, 28 Wn.App. 98 (1981), 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. Ellis, 136 Wn.2d 498 (1998), in which the Washington Supreme Court indicated that the ER 702 analysis and the Frye tests 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 analysis 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:

"The trial court in this case intelligently evaluated the testimony and reports of defense expert witnesses. The court, however, placed too much reliance upon foundational criteria announced in State v. Edmon, a 1981 Court of Appeals case. We do not consider Edmon controlling in this case. Strict application of Edmon results in at least a questionable result in this capitol case by depriving Petitioner Ellis, before trial, of an opportunity to present a diminished capacity defense. The question of admissibility of the testimony of defense experts is better determined under ER 702, 401 and 402. If at trial the court allows any such testimony, its weight and value would then be determined by the trier of fact, the jury, under proper instructions, including an instruction such as WPIC 6.51."

WPIC 6.51 reads as follows:

"A witness who has special training, education or experience in a particular science, profession, or calling, may be allowed to express an opinion in addition to giving testimony as to facts. You are not bound, however, by such an opinion. In determining the credibility and weight to be given such opinion evidence, you may consider, among other things, the education, training, experience, knowledge, and ability of that witness, the reasons given for the opinion, the sources of the witness' information, together with the factors already given you for evaluating the testimony of other witnesses."

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. Greene, 139 Wn.2d 64 (1999), 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 relevant question to be resolved by the jury in this case was whether, at the time he committed the acts in question, Greene's mental condition prevented him from appreciating the nature, quality, or wrongfulness of his actions (cites omitted), or, in the alternative, whether the alleged condition demonstrably impaired Greene's ability to form the mental intent necessary to commit the charged crimes. (cites omitted) In order to be helpful to the trier of fact, therefore, it is not enough that, based on generally accepted scientific principles, a defendant may be diagnosed as suffering from a particular mental condition. The diagnosis must, under the facts of the case, be capable of forensic application in order to help the trier of fact assess the defendant's mental state at the time of the crime. (cite omitted) Scientific principles that are generally accepted but are nevertheless incapable of forensic application under the facts of a particular case are not helpful to the trier of fact because such evidence fails to reasonably relate the defendant's alleged mental condition to the asserted inability to appreciate the nature of his or her actions or to form the required specific intent to commit the charged crime. (cites omitted)

Thus we agree with the Court of Appeals that in this case a primary consideration under ER 702 is whether and how the symptoms of DID are relevant to the legal concepts of insanity and diminished capacity."

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, State v. Wheaton, 121 Wn.2d 347 (1993), they had "refused to adopt a legal standard by which to assess the sanity of a criminal defendant suffering from multiple personality disorder (cite omitted). 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 not 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. State v. Stumpf, 64 Wn.App. 522 (1992). 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 he 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, State v. Mitchell, No. 42044-5-I (Feb. 14, 2000). 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 the 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 he 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 them 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,

"The jury, after hearing all of the evidence, may find probability where the expert saw only possibility, and may thereby conclude that the defendant's capacity was diminished even if the expert did not so conclude. See e.g., State v. Welsh, 8 Wn.App. 719 (1973)(pre-Edmon case accepting expert testimony on diminished capacity as sufficiently founded where expert stated only "it was possible defendant experienced a psychomotor seizure at the time of the alleged assault.)"

Further, other evidence introduced at trial may provide the jury with more information about the defendant's mental state than was available pretrial to the expert. For this reason, excluding expert testimony on the basis of a motion in limine may be especially risky. See State v. Ellis, 136 Wn.2d 498, 523, 963 P.2d 843 (1998). 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, e.g. McLaughlin v. Cooke, 112 Wa.2d 829 (1989). 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. Lord, 117 Wa.2d 829 (1991) the court noted:

Expert testimony couched in terms of "could have", "possible", or "similar" is uniformly admitted at trial. The lack of certainty goes to the weight to be given the testimony, not to its admissibility. This is so, in part, because the scientific process involved often allows no more certain testimony." See also State v. Warness, 77 Wa.App 636 (1995).

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. It would appear that this is true not just for diminished capacity cases, but for any testimony involving a defendant's mental state at the time of a crime, which could include, for example, insanity, incompetency, self-defense, and childhood incapacity cases. Furthermore, the expert does not have to be sure that he defendant's disorder causes him to meet the test in question -- the expert only has to be able to testify that it is possible that the disorder caused the defendant to met the applicable test. Obviously in many cases this is very helpful to the defense. It is not uncommon for mentally disordered individuals 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 he 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,

"Without more information about what Mitchell was thinking and feeling at the time of the incident, [the expert psychologist] did not have an opinion about whether Mitchell was actually experiencing delusions when he encountered the officers. The court reasoned that if [the expert] did not have enough facts or information to state an opinion on the ultimate question, the jury would be similarly unable to do so. Under ER 702, this was error. A jury should be allowed to determine whether Mitchell was experiencing delusions at the time of the arrest even if [the expert] could only say it was possible."

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 he 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". State v. Nuss, 52 Wa.App 735 (1988); State v. Brewton, 49 Wa.App 589 (1987). Washington follows the U.S. Supreme Court case Estelle v. Smith, 451 U.S. 454 (1981) in that regard. 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. See Trowbridge, Competency and Criminal Responsibility in Washington, 21 Gonz. L. Rev. 691 (1986). In State v. Hutchinson, 111 Wa.2d 872 (1989), 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." State v. Brewton, 49 Wa.App 589 (1987); accord, State v. Hutchinson, 111 Wa.2d 872 (1989). Citing an Iowa case, State v. Craney, 347 N.W.2d 668 (1984), the

Hutchinson Court stated,

"We follow State v. Craney, supra at 673, in holding: "we are persuaded the better view is that a distinction should be drawn between testimony by the expert (a)which on the one hand gives (i) his opinion on sanity or insanity and (ii) his non-incriminatory observations in arriving at his opinion including non-incriminatory statements made by the defendant, and (b) which on the other had gives his incriminatory observations in arriving at his opinion including incriminatory statements by the defendant. Opinions, observations, and statements under branch (a) are admissible, but observations and statements under branch (b) are inadmissible. Under these principles, an observation or statement is not "incriminatory" merely because it tends to show the defendant is sane."

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.

State v. Hamlet, 83 Wa.App 350 (1996), a Division I Court of Appeals case, addressed the issue of whether in a diminished capacity case the defense experts who had 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. 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. State v. Pawlyk, 115 Wa.2d 457 (1990). 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 case, People v. Rosenthal, 617 P.2d 551 (1980), stated:

"And as observed in People v. Rosenthal: "If the prosecution is permitted to make unrestricted use at the guilt trial of the defendant's psychiatric communications during a sanity examination by a privately retained psychiatrist, the defendant in effect becomes a witness against herself through the conduit of the psychiatric examiner....The procedures governing the insanity defense cannot be applied in a manner that destroys the constitutional safeguard against self-incrimination. French v. District Court,153 Colo. 10 (1963). We hold, therefore, that the prosecution may not call as a witness in its case-in-chief during the guilt trial a psychiatrist privately retained by the defendant in connection with an insanity plea and elicit from the psychiatrist incriminating admissions made by the defendant during a sanity examination."

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 mental defense cases, particularly 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.