Expert Witness Testimony to Defendant's Knowledge of Wrongfulness at the Time of the Offense Inadmissible in Federal Insanity Trial
In United States v. Turner, 61 F.4th 866 (11th Cir. 2023), the Eleventh Circuit Court of Appeals held that the lower court abused its discretion in allowing a psychologist to testify to the defendant's ability to appreciate the nature and quality or wrongfulness of his acts in an insanity case but ruled that the error was harmless.
Facts of the Case
While he was a passenger in a vehicle pulled over by a law enforcement task force on July 20, 2018, Jesse James Turner, Jr. resisted exiting the vehicle. He was placed in handcuffs and found to have a .40 caliber pistol. Mr. Turner expressed understanding that as a convicted felon he was not supposed to have the firearm, and he offered to help the police solve open shootings and murder cases if they could “wash this shit on the gun charge” (Turner, p 870). He had previous felony convictions and had served a prison term for illegal possession of a firearm in 1999.
On November 8, 2018, Mr. Turner was alleged to have fired an AR-15 rifle at imaginary men who were trying to enter his residence and kill him. During detective questioning, there was no indication that Mr. Turner had acquired the firearm under the direction of the task force or that he was working as a confidential informant or otherwise under cover. He was subsequently indicted for possessing three firearms.
Mr. Turner asserted three affirmative defenses: insanity at the time of the offense; possessing firearms in the exercise of public authority on behalf of a law enforcement agency; and entrapment into possessing the firearms. Mr. Turner's counsel did not call a mental health expert witness but rather relied on the lay testimony of Mr. Turner's girlfriend. The prosecution called Rebecca Barnette, PhD, as an expert witness, who testified that Mr. Turner was “not unable” to appreciate the nature and quality or the wrongfulness of his acts that took place on November 8, 2018, with regard to possession of firearms. Despite Mr. Turner's objection, the district court permitted Dr. Barnette's testimony. The jury found Mr. Turner guilty, and he was sentenced to 10 years in prison.
Ruling and Reasoning
Mr. Turner appealed his conviction based on a matter concerning the expert witness testimony of forensic psychologist Dr. Barnette, as presented by the government. He argued that, according to Federal Rules of Evidence § 704(b), the expert should not have testified as to an ultimate issue in the case. According to Rule 704(b), “in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element … of a defense” (Turner, pp 888–89, citing Fed. R. Evid. § 704(b)). The Eleventh Circuit Court reviewed Dr. Barnette's trial testimony and determined that the prosecutor obtained her opinion on elements of the defense on direct examination and again on redirect examination. The prosecutor had asked her directly about Mr. Turner's “ability to appreciate the nature and quality or the wrongfulness of his acts” (Turner, p 888). The court found that the district court abused its discretion in overruling the defense objections and permitting Dr. Barnette to testify to an element of the insanity defense. According to the appeals court, however, the district court's error was harmless. The court said that, despite the error, the judgment would not be reversed unless the error affected the defendant's “substantial rights.” The court reviewed the sufficiency of Mr. Turner's insanity defense under the Insanity Defense Reform Act of 1984, including evidence of “severe mental disease or defect.” The court found that Mr. Turner failed to introduce sufficient evidence of his having a severe mental disease or defect on November 8, 2018, and that Dr. Barnette did not make a diagnosis of a qualifying condition in her assessment. “So, the erroneous admission of Dr. Barnette's opinions about his mental state did not affect [Mr.] Turner's substantial rights” (Turner, p 893). In addition, the court found evidence that Mr. Turner recognized that he was not permitted to lawfully have a firearm at that time. Mr. Turner's conviction was affirmed.
Dissent
Circuit Judge Rosenbaum dissented in part to the majority opinion. While she concurred that the district court abused its discretion by admitting Dr. Barnette's testimony, she said that this error was not harmless. Among other points, she said that the factual dispute was close, as Mr. Turner's behavior was consistent with psychosis (as conceded by Dr. Barnette in her testimony), which a juror may reasonably conclude constituted a severe mental disease. She also raised concern about the undue weight of the testimony of an expert witness on the trier of fact. “That danger only increases when the expert is effectively a government agent (like a Bureau of Prisons forensic psychologist, as Dr. Barnette was when she examined Turner) testifying on behalf of the prosecution” (Turner, p 901).
Discussion
This case illustrates some of the complexities that can occur when providing expert testimony in criminal cases. Here, the expert responded to the prosecutor's questions, which included questions on the ultimate issue. Ultimately, the court ruled that it was an error for the lower court to permit that testimony.
In this case, the defendant did not rely on a mental health expert to establish whether he was experiencing a severe mental disease or defect at the time of the offense. Rather, he utilized the lay testimony of his long-term girlfriend. Although this is a decision made largely by his legal team, the court noted that he did not provide sufficient evidence of a severe mental disease or disability, despite the trial court's error of permitting the testimony of the prosecutor's expert.
The finding in Turner reiterated a previous finding regarding the matter of ultimate testimony in a federal insanity case by the D.C. Circuit Court of Appeals in Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967). In Washington, Thomas Washington was convicted by a jury of rape, robbery, and assault with a deadly weapon. His primary defense was insanity. Mr. Washington appealed his conviction, though it was affirmed by the appeals court. The majority stated that psychiatrists were prohibited from addressing the ultimate issue in insanity cases to afford the jury a wide range of latitude in its fact-finding task. This case was considered a descendent of the Durham rule (after Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954), which was also designed to provide the jury with more information with which to make a decision. Both opinions were written by Judge David L. Bazelon.
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