Supreme Court Reinstates Death Penalty Holding Prosecution May Introduce Expert Psychological Opinion Rebutting Voluntary Intoxication Defense

Kansas v. Cheever, _ U.S._ , 134 S.Ct. 596, 82 USLW 4032 (No. 12-609 Dec. 11, 2013) available at

In a unanimous opinion written by Justice Sonia Sotomayor, the United States Supreme Court held on December 11, 2013 that when a defense expert testifies that the defendant lacks the mens rea, or requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. In so doing, the Supreme Court reversed the decision of the Kansas Supreme Court that introduction of expert testimony from a court-ordered examination to which the defendant had not agreed violated his Fifth Amendment right against self-incrimination.

In January 2005, Scott Cheever shot and killed a county sheriff and shot at other law enforcement officers who were attempting to arrest him on an outstanding warrant. Several hours prior to the shooting, Cheever and his friends had cooked and smoked methamphetamine. One of Cheever’s friends warned him that officers were on the way to arrest him. He attempted to flee in his car but it had a flat tire. He returned inside and hid with a friend in an upstairs bedroom. Hearing footsteps on the stairs, Cheever stepped out and shot the sheriff climbing the stairs. He returned to the bedroom briefly, but went back to the stairs and shot the sheriff again. He also fired at other officers and members of the SWAT team that had arrived.

The State charged Cheever with capital murder, but shortly thereafter, the Kansas Supreme Court found in an unrelated case that the State’s death penalty scheme was unconstitutional. Because the death penalty was no longer available, the state prosecutors dismissed the charges against Cheever and permitted federal prosecutors to indict him under the Federal Death Penalty Act.

Cheever filed a notice in the federal case that he intended to introduce evidence that his intoxication with methamphetamine prevented him from forming the specific intent to commit the crime. The federal district court ordered Cheever to submit to a psychiatric evaluation to assess how methamphetamine had affected him when he committed the crime. The federal court, however, suspended the proceedings during jury selection when defense counsel became unable to proceed, and then dismissed the case without prejudice. In the interim, the United States Supreme Court reversed the Kansas Supreme Court in the unrelated case, holding that the Kansas death penalty scheme was constitutional.

Kansas then refiled the state proceedings against Cheever at which he presented a voluntary intoxication defense, arguing that his methamphetamine use had made him incapable of premeditation. He presented evidence at trial from a psychiatric pharmacologist that long-term methamphetamine use had damaged his brain. The expert testified that Cheever was acutely intoxicated at the time of the shooting. The State then sought to present rebuttal testimony from the forensic psychiatrist who had examined Cheever under the federal court order. Cheever objected on the grounds that he had not voluntarily agreed to the examination and the expert’s testimony would therefore violate his Fifth Amendment right against self-incrimination. The trial court admitted the testimony and the expert testified that Cheever shot the sheriff because of his antisocial personality and not because of his methamphetamine use. The jury convicted Cheever of murder and attempted murder, and recommended the death penalty, which the court imposed.

On appeal, the Kansas Supreme Court agreed that use of the rebuttal testimony from the expert in the federal proceeding violated Cheever’s Fifth Amendment rights because he had neither initiated the examination nor put his mental capacity in issue at trial. In so deciding, the Kansas Supreme Court relied upon the United Supreme Court decision in Estelle v. Smith, 451 U.S. 454 (1981), holding that a court-ordered psychiatric examination violated the defendant’s Fifth Amendment rights when the defendant had not initiated the examination or put his mental capacity in dispute at trial. The Court acknowledged the later-decided case of Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that where a defense expert who has examined the defendant testifies that the defendant lacks the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. But the Kansas Court found Buchanan did not apply because under Kansas law voluntary intoxication is not a “mental disease or defect.” The State of Kansas then petitioned the United States Supreme Court for a writ of certiorari, which the Court granted.

The Supreme Court reversed distinguishing this case from Estelle, pointing out that the judge in Estelle had ordered a psychiatric examination to determine the defendant’s competency to stand trial. The prosecution then used the defendant’s statements from the examination during the sentencing phase of trial to demonstrate the defendant’s future dangerousness. Instead, the Supreme Court relied on Buchanan, finding that “mental status” is a much broader term than “mental disease or defect.” It held that mental status defenses include those based on expert opinion as to the defendant’s mens rea, that is, his mental capacity to commit the crime or ability to premeditate. The Court reasoned that to allow a defendant to present one-sided and potentially inaccurate evidence to the jury would undermine the adversarial process. On the other hand, permitting the prosecution to present rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not permit him to refuse to answer related questions on cross-examination.

In this case, Cheever presented expert evidence of his voluntary intoxication to support his defense that he lacked the requisite intent to commit murder. The Supreme Court held that the prosecution may therefore offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence. The Court then reversed the Kansas Supreme Court decision, reinstated the death penalty and remanded the case for further proceedings.

Found in DMHL Volume 33 Issue 1