Mental health evaluations
and the Fifth Amendment
BY DANIEL KRASS, JD, PHD • CLAREMONT MCKENNA COLLEGE
This term, the U.S. Supreme Court will consider Kansas v. Cheever, a case that is expected to have important implica-
tions for how mental health evaluations are used and performed
in criminal trials.
The case began on Jan. 19, 2005, when Scott Cheever was using
methamphetamines with several friends at their house. Based
on anonymous tip, the police were on the way to serve Cheever
an outstanding warrant. When the police arrived, he shot and
killed Greenwood County Sheriff Matthew Samuels. Cheever was
charged with capital murder and faced the death penalty.
The course of Cheever’s prosecution was complicated.
He was originally to be tried in state court, but shortly after
his arraignment, the Kansas death penalty statute was found
1 As a result, prosecutors decided to dismiss
the charges in state court and move his trial to federal court
under the Federal Death Penalty Act.
2 During the course of his
federal proceedings, the judge ordered Cheever to undergo a
compulsory mental health examination because his attorney
raised the possibility that he might use a mental disease or defect
3 Cheever was evaluated for five and a half hours by a
prosecutor-chosen forensic psychiatrist. Subsequently, Cheever’s
federal proceedings were dismissed when his attorney was unable
to continue shortly into jury selection. Finally, capital murder
charges were re-filed in Kansas state court.
At Cheever’s trial in state court, a doctor of pharmacy testified
that Cheever could not form the mens rea (i.e., the mental state
necessary to premeditate and intend to kill another) to commit
capital murder because he was voluntarily intoxicated due to
his current and chronic methamphetamine abuse. To rebut this
testimony, the state introduced evidence and expert testimony
from Cheever’s compulsory mental health examination from the
federal court case.
Cheever’s attorney objected, claiming that the use of this
expert testimony based on a required mental health evaluation
in federal court infringed on his Fifth Amendment right against
self-incrimination, which he had not waived by offering a mental
disease or defect defense in state court. The Fifth Amendment
protects defendants from answering questions or offering
testimony against themselves, including statements about their
mental states made during mental health evaluations. When
defendants offer expert testimony about their own mental health
at trial, it is assumed they have waived their Fifth Amendment
right and prosecution can then use expert testimony to reveal
what occurred during their mental health evaluations. The trial
court disagreed with Cheever’s attorneys’ Fifth Amendment
objection, allowed expert testimony from the compulsory mental
health exam in federal court, and Cheever was subsequently found
guilty and sentenced to death.
The Kansas Supreme Court overturned the trial court’s
decision, ordered a new trial and held that the Fifth Amendment
does not prevent a court from ordering a mental health
examination of a defendant, if the defendant intends to raise a
mental disease or defect defense. So, the federal court was justified
in ordering Cheever to participate in a mental health evaluation.
Yet, unless the defense actually raises a mental disease or defect
defense at trial, the defendant’s Fifth Amendment right against
self-incrimination is not waived, and the state cannot use the
mental health evaluation against the defendant. The Kansas
Supreme Court also concluded that a voluntary intoxication
defense based on chronic methamphetamine abuse was not a
mental disease or defect, and therefore, Cheever did not waive
his Fifth Amendment right against self-incrimination by offering
expert testimony on this issue at his state trial.
Kansas has appealed the case to the U.S. Supreme Court, which
will determine when the Fifth Amendment right against self-incrimination attaches, as well as how and when a defendant may
waive that right by raising a mental disease or defect defense. Oral
arguments are set for Oct. 16. Psychologists who practice forensic
mental health will have to watch this outcome closely to determine
how Fifth Amendment rights attach to a compulsory mental
health exam. n
“Judicial Notebook” is a project of APA’s Div. 9 (Society for the
Psychological Study of Social Issues).
1 See Kansas v. Marsh, 548 U.S. 163 (2006), and APA Monitor’s “Judicial
Notebook” (2006, Vol. 37, p. 56) reporting on this decision.
2 Federal Death Penalty Act, 18 U.S.C § 3591 et seq. 1994.
3 Cheever’s attorneys did not raise such a possibility in either of his Kansas
prosecutions because Kansas is one of four states (Idaho, Utah, and
Montana are the others) without an insanity defense.
4 State v. Cheever, 294 P3d. 1007, 2012.