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Self Defense as a Mental DefenseBrett C. Trowbridge, Ph.D., J.D.This article supported by The Trowbridge Foundation Published
in the American Journal of Forensic Psychology, (Much of the material in this article was originally published in "Self-Defense as an Excuse", Williams, C.H. and Trowbridge, B.C., Washington Criminal Defense, Vol. 11, No. 2, May 1997. This article has been supported by funds from The Trowbridge Foundation.) AbstractRecent advances in self-defense law are causing the standard to evolve from, "What would a reasonable person have done in this situation?", to, "What would a reasonable person with this defendant's mental status and history have done in this situation?" Many self-defense cases seem to involve some psychological reason why the defendant acted more fearfully than otherwise would appear to have been "reasonable" under the circumstances. Information is presented as to when a mental health expert's opinion about a defendant's fear would be admissible in a criminal trial. Introduction:Until relatively recently the law of self-defense was based exclusively on the so-called "objective" standard which we inherited from centuries of common law. Juries were asked to determine whether what the defendant did was what a "reasonable person" would have done faced with the same circumstances. All individuals were expected to live up to this "reasonableness" standard, without taking into account their histories, or whether they were mentally ill, intellectually impaired, or emotionally disturbed. Under this "objective" standard self-defense was not allowed unless the threat the defendant experienced was "immediate", which meant that the threat had to occur simultaneously with the act of self-defense. A defendant could not put on a self-defense case claiming only that threats had occurred at some time in the past. Furthermore, there had to be a "necessity" established for the self-defense, and the response had to be "proportional" to the threat presented. In the 1970's and 1980's battered
women's cases appeared in almost all jurisdictions, after it became commonly
understood that women who had been repeatedly battered emotionally and physically
by their spouses often reacted by believing the only way to preserve themselves
was to attack him under circumstances which might not seem "reasonable"
to a normal person. Psychologists began to understand battered women as often
being "hypervigilant" and operating out
of "learned helplessness". Although expert testimony had not previously
been allowed in self-defense cases, experts began to be allowed to testify
that a particular woman had been conditioned to be intensely fearful by a
pattern of regular abuse, thus causing her to react in a manner "reasonable"
from her point of view, though perhaps not "reasonable" from the
point of view of an average person. Experts explained that these women suffered
from a special mental disorder, "post-traumatic stress disorder"(1),
in which a battered woman experiences intense psychological distress at exposure
to cues that remind her of an earlier traumatic event. This concept had originally
been developed to explain some of the symptoms of Allery:In Allery the defendant had been married for five years, during which time she experienced a consistent pattern of physical abuse at the hands of her husband, who pistol-whipped her, assaulted her with knives, and beat her with his fists. She had been hospitalized at one point because her husband had struck her in the head with a tire iron. Because the beatings had increased in intensity and severity, she had filed for divorce and had served her husband with a restraining order. She testified that on the day of the shooting she had entered her house late at night, not expecting to find her husband there because of the restraining order. However, her husband was there, and according to her testimony he threatened to kill her. After unsuccessfully trying to escape out of a window, she fired one shot at him with a shotgun, killing him. The trial court refused to allow expert testimony on the "battered woman syndrome", and also refused to give self-defense instructions requested by the defense, allowed only the following instruction on self-defense: "Homicide is justifiable when committed in the lawful defense of the slayer when the slayer, even though mistaken, has reasonable ground to believe the person slain intends to inflict death or great bodily harm and there appears to the slayer to be imminent danger of such harm being accomplished. The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the slayer at the time..."(4) Upon appeal the Washington State Supreme Court (in Allery) felt that this instruction "does not make the subjective self-defense standard manifestly apparent to the average juror." It added, "The instruction is inadequate because it does not instruct the jury to consider the conditions as they appeared to the slayer, taking into consideration all of the facts and circumstances known to the slayer at the time and prior to the incident." The Court concluded, "The jury should have been instructed to consider the self-defense issue from the defendant's perspective in light of all she knew and had experienced with the victim." As to the admissibility of expert testimony of "battered woman syndrome", the Allery Court indicated a three part test should be used: "whether (1) the witness qualifies as an expert, (2) the opinion is based upon an explanatory theory generally accepted in the scientific community (Frye test), and (3) expert testimony would be helpful to the trier of fact (Evidence Rule 702; cites omitted)." The Court felt all three tests had been met, and it ruled that the expert testimony should have been admitted. These battered women cases were important, because they represented a new area of criminal law in which psychological or psychiatric testimony would now be allowed. Testimony would henceforth be allowed by qualified experts in battered women cases, as the battered woman syndrome was thought to be accepted in the scientific community, and also because the experts' testimony in these cases was thought to "assist the trier of fact to understand the evidence or to determine a fact in issue" under ER 702. In Allery the Court stated, "We find that expert testimony explaining why a person suffering from the battered woman syndrome would not leave her mate, would not inform police or friends, and would fear increased aggression against herself would be helpful to a jury in understanding a phenomenon not within the competence of a normal lay person." Janes:Of course, there is no logical reason why such consideration of the defendant's mental attributes and history cannot be extended to other self-defense cases other than battered spouses. The next important development along these lines in Washington was the "battered child" defense(5). In that case the defendant, a seventeen year old boy, who at age seven had been abandoned by his alcoholic birth father, was sporadically beaten over a ten year period by his mother's new husband; he had also witnessed violence against his mother and brother. Finally, after waiting in the home with his step-father's guns for several hours, smoking marijuana and drinking whiskey, when the step-father walked in the door, the boy shot and killed him. At trial the defendant presented evidence of ten years of abuse at the hands of his step-father. This evidence was offered to support a theory of self-defense, or in the alternative, diminished capacity. The trial court admitted the evidence for diminished capacity, but declined to allow expert testimony on the issue of self-defense, holding there was no "imminent danger" at the time of the killing. The Washington State Supreme Court reversed (in Janes), and remanded the case to the trial court to determine whether a self-defense instruction and expert testimony were appropriate. The Washington State Supreme Court enunciated the principle that expert testimony regarding the "battered child syndrome" was admissible in appropriate cases to aid in the proof of self defense, as it felt the "battered child syndrome" met the Frye test of scientific admissibility; the Court felt it had achieved general acceptance in the scientific community(6). The Court stated, "The longstanding rule in this jurisdiction is that evidence of self-defense must be assessed from the standpoint of the reasonably prudent person, knowing all the defendant knows, and seeing all the defendant sees." Citing Wanrow, the Court added,"(Jurors are to) put themselves in the place of the appellant, get the point of view he had at the time of the tragedy, and view the conduct of the(deceased) with all its pertinent sidelights as the appellant was warranted in viewing it. In no other way could the jury safely say what a reasonably prudent (person) similarly situated would have done." The Janes Court went on to elaborate on what was meant by the requirement that the danger of great bodily harm apprehended by the defendant needed to be "imminent", stating that "imminent" is not synonymous with "immediate". The Court held that the fact that "triggering behavior" is separated in time from an episode of abuse does not negate the reasonableness of a defendant's perception of imminent harm if in the past these two types of conduct have been "inevitably linked". The Court stated that in an abusive situation the fact "that the triggering behavior and the abusive episode are divided by time does not necessarily negate the reasonableness of the defendant's perception of imminent harm." Other Cases:Clearly this "subjective" way of looking at self-defense cases can be extended to other self-defense situations (battering between homosexual partners, battering between pimps and prostitutes, etc.), as many self-defense cases seem to involve some psychological reason why the defendant was more fearful than otherwise would seem to have been "reasonable" under the circumstances. In a case in which I was involved the defendant, who was charged with assaulting a jail guard, could show a history that a year before she had been raped in a small motel room by a man who had torn off her clothing. When she was taken to jail she was placed in a small holding room and approached by one of the guards there, who forced her to stand up by grabbing her sweatpants in a way that resembled the actions of the rapist. She reacted by hitting the guard with a food tray. I was allowed to testify that her post-traumatic stress disorder caused her to be more fearful in that situation than a normal person would have been under the same circumstances. The jury was instructed to determine whether the defendant's behavior had been reasonable given her psychological make-up. This appears to be approaching a largely "subjective" standard--would a reasonable person who was mentally disturbed in the same way the defendant was have acted as the defendant did under the same circumstances? In another case the defendant had invited people to his home he did not know well, and after some drinking one man became angry and assaulted another man for improperly touching his girlfriend. As some of his furniture was being broken, the defendant ordered them both to leave his house. The man accused of improperly touching the girlfriend did leave. However, the angry man and his brother became belligerent towards the defendant, who foolishly went to his bedroom and returned with a gun. In the ensuing struggle one of the brothers was killed. The defendant stated the two men had rushed him while he was holding the gun, and after struggling for the gun with them he fired in order to protect himself. There was conflicting testimony from several witnesses. The prosecution argued that he never should have escalated the violence by getting his weapon. My evaluation revealed that the defendant had a history of being beaten by bullies, particularly by bullies who were siblings. Thus, he appeared to be a person who was particularly fearful of just the situation which presented itself at his home on the night in question. Although he did not meet criteria for post-traumatic stress disorder, I opined he was suffering from an anxiety disorder not otherwise specified, and my testimony was allowed to the effect that he would have been more fearful in that situation than a person who did not have his particular history. Again, the jury was instructed that it should take into account his particular mental make-up. In view of Wanrow, Allery, and Janes the Washington standard pattern jury instructions were revised, and the self-defense instruction now reads that the slayer was justified if: "...(3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all of the facts and circumstances as they appeared to [him] [her], at the time of and prior to the incident."(7) (The instruction for cases in which death did not occur and the defendant is charged with assault instead of murder underwent a similar revision.)(8) Of course, before a court will give the jury instruction the defendant must present some evidence that self-defense was involved in the case, although in Washington that evidence can be slight; in my experience courts will give the self-defense instruction if the defendant claims he felt he was acting in self-defense, and there is some visible positive act by the assailant. Diagnoses Which May Qualify:In most self-defense cases the defendant will contend that he was particularly frightened by the circumstances in which he found himself. Frequently there are antecedents in the defendant's life which help to explain his reaction, especially if there is a history of the defendant having been abused by the victim. Often antecedent abusive events with persons who were similar to the victim in some way can help explain the defendant's reaction. However, it is also possible that a particular defendant may be suffering from a disorder which causes him to be very fearful when no clear antecedent causes can be shown to have caused the fearfulness. For example, a person suffering from paranoid personality disorder(9) is someone who is in general especially suspicious and frightened. Besides post-traumatic stress disorder any number of other anxiety disorders would appear to qualify, such as panic disorder without agoraphobia(10), panic disorder with agoraphobia(11), social phobia(12), acute stress disorder(13), generalized anxiety disorder(14), and possibly substance-induced anxiety disorder(15). Any number of organic brain disorders causing dementia, such as dementia due to HIV disease(16) might qualify in some cases. A retarded person, or a person with borderline intellectual functioning(17), might arguably misjudge the seriousness of a situation and act in what he thought was justifiable self-defense where other "normal" persons would not do so. Indeed, retarded individuals on average have been abused more frequently during their lives than persons who are not retarded, and they thus may be more frightened in threatening situations(18). Even neurotic persons, such as those suffering from depersonalization disorder(19) might qualify, as the depersonalization is often said to cause significant fearfulness and distress. We see that diagnoses of many types might qualify, including anxiety disorders, personality disorders, organic brain syndromes, retardation, and neurotic disorders. Indeed it would be the unusual self-defense case in which some psychological explanation of the defendant's fearfulness could not be put forth. It appears that the self-defense test has become a compromise between "objective" and "subjective" factors, such that self-defense is almost always at least partially a mental defense. I believe that in most self-defense cases a defense attorney could hire an expert to evaluate his client and to determine whether any psychological conditions and/or antecedents existed which would explain why the defendant was so fearful and thus acted the way he did, even if to a "normal" person the threat would not have appeared to have been "imminent". Would a psychotic diagnosis qualify as a mental disorder that would make someone especially fearful? For example, a psychotic person suffering from paranoid schizophrenia(20) may be especially fearful in a given situation because his paranoid delusions cause him to believe someone is out to hurt him when there is no demonstrable evidence this is true. If he acts on these delusions and attacks someone in what he feels is self-defense could he put on a defense that he acted as a reasonable paranoid schizophrenic would have acted under the circumstances? Obviously this would be absurd, and this illustrates that there is still an "objective" aspect to self-defense. Since what the schizophrenic defendant experienced had no basis in reality, the proper defenses would be insanity or diminished capacity, not self-defense. In order for a "subjective" self-defense theory to meet the "objective" part of the standard, the antecedent threatening events must have "objectively" occurred; they cannot simply have been imagined by the defendant. As Janes stated, "The objective portion of the inquiry serves the crucial function of providing an external standard. Without it, a jury would be forced to evaluate the defendant's actions in the vacuum of the defendant's own subjective perceptions. In essence, self-defense would always justify homicide so long as the defendant was true to his or her own internal beliefs." However, Janes makes it clear that post-traumatic stress disorder is a person's "normal response to an abnormal situation". Therefore a person suffering from PTSD may well have acted "reasonably", and thus can meet the objective part of the standard. Whether in a given case the "objective" part of the self-defense standard has been met will often hinge on analysis of the factors we have inherited from the common-law of self-defense, i.e. the timeliness, the necessity, and the proportionality of the defendant's response. However, these factors must be applied from the defendant's perspective in order to meet the "subjective" part of the self-defense standard. As stated in Janes, this standard of reasonableness "incorporates both subjective and objective characteristics". Related Issues and Developments:From the defense point of view there are many advantages to this new compromise between "objective" and "subjective" factors in self-defense. First, unlike affirmative mental defenses such as insanity and duress, in which the burden of proof is placed on the defense to show that the behavior was justifiable, it is usually recognized that in cases where some evidence of self-defense is present the burden is on the State to prove the absence of self-defense beyond a reasonable doubt(21). Furthermore, at least in Washington, if a defendant wins a self-defense case the State is required to pay the costs of his attorneys and expert witnesses(22). Finally, in insanity cases the State is usually entitled to have the defendant evaluated by an expert of its choice, since insanity is viewed as an affirmative defense. However, in a self-defense case a reasonable argument might be made that requiring the defendant to submit to a psychological evaluation by the State's expert would violate his right against self-incrimination, as self-defense is not considered to be an affirmative defense; the rule in this area is not entirely clear. Experts are usually not entitled to give an opinion as to the ultimate issues in the case, such as the reasonableness of the defendant's belief in the imminence of harm and the necessity of using force, or on the credibility of the defendant's statements on these points, since reasonableness is a legal question, and credibility invades the jury's province. However, the forbidden opinion on reasonableness may become admissible if the expert is asked whether his testimony is "consistent with" the defendant having had a reasonable belief in the imminence of bodily harm or in the necessity of using force(23). All of these new developments which make self-defense more "subjective" are inherently beneficial to defendants, and make it much easier for an expert to have his opinion admitted at trial. Prosecutors have real fear of this type of evidence, as it turns the tables on them. Suddenly the defense counsel is representing the "victim", instead of the usual circumstance where the prosecutor represents the victim. Furthermore, expert evidence about the past history of abuse usually makes the jury more sympathetic towards the defendant. Admissibility Of The Expert's Opinion:In most cases the qualifications of a licensed psychologist or licensed psychiatrist as an expert will not be subject to credible dispute. The expert will then be able to testify that the diagnosis he assigned to the defendant is generally accepted by mental health professionals, and that this acceptance is evidenced by the inclusion of the diagnosis in the DSM-IV. As stated in the DSM-IV, "These diagnostic criteria and the DSM-IV classification of mental disorders reflect a consensus of current formulations of evolving knowledge in the field." That should satisfy the Frye test, but arguably by itself might not satisfy the additional Daubert requirements that there be a reliable and scientifically valid way of applying the diagnostic criteria to the facts of the case at hand, that the theory presented be testable, and that there be peer review(24). An expert offering a psychologically based subjective self-defense theory in a jurisdiction where Daubert applies has to show what scientific research exists which proves his theory is scientifically valid. It is clearly true that the fact of abuse alone does not constitute a legal defense, and that even expert testimony that the defendant suffered from battered person syndrome or PTSD does not in itself constitute a legal defense. Instead, it is necessary for the expert to explain how the abuse and resulting mental disorder explain and justify the defendant's actions. Usually the issue at this juncture will be whether such opinion testimony would be helpful to the trier of fact under ER 702, i.e., whether it would "assist the trier of fact to determine a fact in issue." The defendant's argument is that the testimony would be helpful to the trier of fact for the same reasons that testimony about battered woman syndrome is helpful--because it assists a jury in understanding why it was reasonable for the defendant to have acted as he or she did. Obviously, the expert testimony will be helpful to the jury only if its relevance has been established to the case at hand, so the helpfulness test subsumes a relevancy analysis, and in making its determination the court must proceed on a case-by-case basis. The court's "conclusions will depend on (1) the court's evaluation of the state of knowledge presently existing about the subject of the proposed testimony and (2) on the court's appraisal of the facts of the case."(25) In other words, the Court will evaluate the expert testimony which is being offered for both factual and legal relevance. Sometimes there is an additional analysis under ER 403, which balances probative value against prejudice, waste of time, etc. Other Related Defenses; Diminished Capacity, Insanity, Defense Of Others, Duress:Sometimes in cases where the defendant has been abused or has experienced a prior traumatic event, self-defense is not the only defense nor the best defense. As stated in Janes, there are some cases in which a diminished capacity instruction is appropriate in cases involving post-traumatic disorder: "If other requirements are met, evidence of PTSD impairing a defendant's ability to premeditate may support a diminished capacity instruction." In cases where the defendant is actually re-experiencing some prior trauma, such as a case where a veteran with PTSD has a flashback and attacks someone believing he is back in combat, an insanity defense may be appropriate. Sometimes the defense is defense of another, which functions the same as self-defense; the crux of the issue is the reasonableness of the defendant's perceptions, which must be considered from a "subjective" as well as an "objective"" viewpoint. Some cases involve duress rather than self-defense, and a battered person may be more susceptible to feeling threatened when the abuser makes threats while demanding that he or she commit some crime. The analysis in these cases is equivalent to the self-defense analysis; was the defendant reasonable given the context of an abusive history in perceiving the danger, perceiving its imminence, and seeing no alternatives? In State v. Williams(26) the defendant claimed she had committed welfare fraud because she was forced to do so by her abusive live-in boyfriend, who worked as a merchant seaman and returned home about every two weeks when his ship was in port. At trial the sole defense put forth was duress; Williams testified she believed she and her children would have suffered severe abuse, or even death, if she had disobeyed her boyfriend. A defense expert testified that Williams suffered from battered woman's syndrome, stating that a batterer need not be present to exert control over his victim, and opining that the welfare fraud had not been "willful" as required by the statute. The defense proposed a jury instruction on duress, but the trial court declined to give it, declaring the threats to Williams were not sufficiently immediate because the boyfriend was away at sea most of the time, and Williams was convicted. The Court of Appeals reversed the trial court, and upon appeal the Washington State Supreme Court (in Williams) agreed, stating "the duress statute does not require that it actually be possible for the harm to be immediate. Rather, it directs the inquiry at the defendant's belief, and whether such belief is reasonable." The Court opined that the same tests for admissibility of expert opinion should be used as are utilized in self-defense cases as discussed above(27). Conclusion:The increasing acceptance of these more "subjective" defenses is simply a recognition that people have different perceptions of the world based on their different experiences and their different psychological make-ups. People who have suffered abuse and/or trauma will perceive danger where other people may not, and if the history of abuse supports it, that perception is understandable by a jury, and thus "reasonable". Footnotes2. State v. Wanrow, 88 Wn. 2d 221 (1977) 3. State v. Allery, 101 Wn 2d 591 (1984); similar cases appeared around the same time in most jurisdictions, but I cite Washington law in this paper, as that is the jurisdiction where I practice. 5. State v. Janes, 121 Wn. 2d. 220 (1993) 6. Frye v.
18. Sobsey, D. (1996) Relative Victimization Risk Rates: People with Intellectual Disabilities (Unpublished Manuscript); Tharinger, D., Horton, C.B., & Millea, S (1990). Sexual abuse and exploitation of children and adults with mental retardation and other handicaps. Child Abuse & Neglect, 14, 301-312 21. State v. Box, 109 Wn 2d. 320 (1987) 23. See State v. Jones, 59 Wn.App 744 (1990). 24. See
Daubert v. Merrill Dow Pharmaceuticals, 509 25. State v. Riker, 123 Wn.2d 351 (1994) 26. State v. Williams, 132 Wn.2d 248 (1997) 27. See WPIC 18.01 and State v. Ng, 110 Wn.2d 32 (1988) for a discussion of the "subjective" nature of the duress defense.
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