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Maryland Rule 5-704(B): Where to Draw the Line for Ultimate Issue Testimony Lisa Cuozzo

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Maryland Rule 5-704(B): Where to Draw the Line for Ultimate Issue Testimony Lisa Cuozzo University of Baltimore Law Forum Volume 28 Article 5 Number 1 Winter/Spring 1998 1998 Maryland Rule 5-704(b): Where to Draw the Line for Ultimate Issue Testimony Lisa Cuozzo Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Cuozzo, Lisa (1998) "Maryland Rule 5-704(b): Where to Draw the Line for Ultimate Issue Testimony," University of Baltimore Law Forum: Vol. 28 : No. 1 , Article 5. Available at: http://scholarworks.law.ubalt.edu/lf/vol28/iss1/5 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Articles MARYLAND RULE 5-704(b): WHERE TO DRAW THE LINE FOR ULTIMATE ISSUE TESTIMONY by Lisa Cuozzo Introduction IV summarizes why the Maryland Rule intrudes on In response to both the highly publicized trial of that fairness and proposes a modification of Maryland John Hinckley, Jr. in 1984 and the recommendations Rule 5-704(b). of the American Psychiatric Association (APA), I. History of the Act Congress passed the Insanity Defense Reform Act of In order to fully understand the Insanity Defense 1984. 1 The Act changed many of the legal factors Reform Act, it is essential to examaine the history associated with the insanity defense, including the behind it, especially the trial of John W. Hinckley, Jr., definition of legal insanity and the scope of expert and the political climate at that time. One must also testimony permitted in insanity trials. 2 Congress understand the pressure that several interest groups amended Federal Rule of Evidence 704 by adding a -- especially theAPA -- exerted on Congress, in an second section which prohibits expert testimony on effort to convince the legislature to agree with their ultimate issues of mental state or mental condition.3 position. Maryland Rule of Evidence 5-704(b) maintains A. Insanity Defense Before Hinckley that prohibition of expert testimony for most ultimate Before the Insanity Defense Reform Act of 1984, issues but carves out one special exception. federal courts employed the American Law Institute Maryland allows testimony only on the ultimate issue (AU) test for insanity. The ALI method is a two-prong of criminal responsibility (Maryland's equivalent of the test, which provides that "A person is not responsible insanity defense).4 This paper discusses why for criminal conduct if, at the time of such conduct, as Maryland Rule 5-704(b) should drop that exception a result of mental disease or defect, he lacks and be modified to agree with Federal Rule 704(b). substantial capacity either to appreciate the Section I explains the history of the Insanity Defense criminality (wrongfulness) of his conduct or to Reform Act of 1984. In Section II, the discussion conform his conduct to the requirements of law. liS turns to the rationale behind Maryland Rule 5-704(b). The first prong, referred to as the "cognitive prong," Section III compares both rules and explains why the questions a person's capacity to know right from Federal Rule results in a fairer trial. Finally, Section wrong. The second prong, conforming conduct to the law, is the "volitional prong." In 1982, the Reagan administration called for the 1 David Cohen, Punishing the Insane: Restriction of Expert Psychiatric abolition of the insanity defense. The administration Testimony by Federal Rule of Evidence 704 (b) , Title IV, Pub. L. No. 98- 473, 98 Stat. 2067 (1984), cited in 40 U. FLA. L. REV. 541 (1988) essentially sought to restrict the admissibility of [hereinafter Reform Act). evidence of mental illness when offered to prove the 2 See id. defendant did not have the requisite intent for the 3 FED. R. EVID. 704(b) reads: "No expert witness testifying with respect to crime charged. 6 In other words, such evidence would the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have only be permitted if the defendant was completely the mental state or condition constituting an element of the crime charged . unaware that he had a weapon in his hand, or was so or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." delusional he did not know he was harming a • MD. R. EVID. 5-704(b) reads: "An expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may not state an opinion or inference as to whether the defendant had a mental state or condition constituting an element of the crime charged. That 5 MODEL PENAL CODE §4.01(1) (1962). issue if for the trier of fact alone. This exception does not apply to an 6 Jonathan B. Sallet, After Hinckley: The Insanity Defense Reexamined, ultimate issue of criminal responsibility." (emphasis added). 94 YALE L.J. 1545, 1546 (1985). 28.1 U. Bait. L. F. 19 Articles person. 7 This movement, however, was unsuccessful D. Congress Passes the Insanity Defense and the ALI insanity defense remained intact until Reform Act 1984. Pressured to make some change, Congress B. Trial of Hinckley passed the Insanity Defense Reform Act in 1984.14 In 1976, John Hinckley, Jr. was a "drifter" The Act added an extra section to Federal Rule of temporarily living in Hollywood.8 He repeatedly Evidence 704, thereby preventing expert testimony watched the film Taxi Driver, starring the actress on ultimate issues of mental state or mental Jodie Foster, and started obsessing about Foster and condition.15 President Reagan.9 In March of 1981, Hinckley, in an The Act was passed for three basic reasons: effort to impress Foster, attempted to assassinate first, to "eliminate competing expert witnesses President Reagan. 1o testifying to directly contradictory conclusions;"16 Hinckley's trial gained extensive media attention, second, because expert testimony was often not just because he targeted the President of the unreliable and confused juries;17 and third, because United States, but also because Hinckley claimed experts were testifying to matters beyond their insanity as his defense. The government focused on expertise. 18 Congressional notes relied heavily on the premeditation, emphasizing that Hinckley purchased APA's statement, which will be discussed in detail a gun and bullets, wrote a note to Foster immediately below. preceding the shooting, and basically stalked the Although the most obvious effect the Insanity President until he had a decent shot to take. ll The Defense Reform Act had on expert testimony was the defense, however, focused on Hinckley's "process modification to Rule 704, expert testimony has also schizophrenia," especially his delusionsY As a been changed by the elimination of the volitional result, the trial came down to a battle.of the experts. prong. As a result of the Act, Congress dropped the Hinckley was found not guilty by reason of insanity, first prong of the ALI test. That change substantially and the public was outraged. limits the insanity defense to only those who are C. Public Pressure unable to understand right from wrong. This new Following the Hinckley trial, many groups definition of insanity in federal courts was initiated a movement to change the insanity defense. recommended by the APA, probably because it The APA, the American Medical Association, and the "conforms with the way psychiatrists think and American Bar Association are only three of the analyze mental processes."19 Psychiatrists can "be groups that wrote to Congress seeking to change or more comfortable in bringing [their] expertise to bear abolish the defense. At the same time, the public in a courtroom setting."20 The jury may have a better was disgusted with the trial, the outcome, and the understanding of this definition as well, as "it avoids whole idea of the insanity defense. According to a the artificiality of trying to separate intellectual from survey conducted in the weeks following the Hinckley emotional understanding. "21 verdict, "40% of the public, if jurors, would have had In Maryland, however, the test for criminal no confidence in the psychiatric testimony; 20% responsibility remains the two-prong ALI test. 22 would have had only slight confidence."13 Maryland, therefore, allows expert testimony on the defendant's ability to conform his conduct to the law despite the unreliability of such testimony. 7 See id. 14 Reform Act, supra note 1. B See id. at 1547. 15 See id. 9 See id. at 1548. 16 S. REP. No. 225, 98th Cong., 1st Sess. 231 (1983), reprinted in 1984 10 Seeid. U.S.C.C.A.N. 3182 [hereinafter S.Rep.). It See id. t7 Id. 12 David Cohen. Punishing the Insane: Restriction of Expert Psychiatric Testimony IBid. by Federal Rule of Evidence 704(b), 40 U. FLA l. REV. 541, 542 (1988) [hereinafter 19 FAUST E. ROSSI, EXPERT WiTNESSES 524, 525 (1991) [hereinafter Rossi). Cohen). 20ld. 13 Phillip J. Resnick, M.D., Perceptions of Psychiatric Testimony: A Historical 211d. Perspective of the Hysterical Invective, 14 BULL. AMER. ACAD. PSYCHIATRY & l. 203 (1986) [hereinafter Resnick). 22 MD. CODE ANN., HEALTH-GEN. §12-106 (1996). 28.1 U. Bait. L. F. 20 Articles E. The APA Statement federal rule limits conflicting testimony by limiting the The APA statement carried a great deal of scope of expert opinion. Since ultimate issue weight in Congress for changing the Insanity testimony is not permitted in federal court, the experts Defense. Congress echoed most of the APA's are limited to explaining the defendant's diagnosis, rationale in the legislative notes that accompany the symptoms, and history.
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