PRECLUDING PSYCHOLOGICAL EXPERTS FROM TESTIFYING FOR THE DEFENSE IN THE PENALTY PHASE OF CAPITAL TRIALS: THE CONSTITUTIONALITY OF FLORIDA RULE OF CRIMINAL PROCEDURE 3.202(e)

STEPHEN MICHAEL EVERHART[*]

Copyright © 1996 Florida State University Law Review

I. INTRODUCTION
II. BACKGROUND AND JUSTIFICATION FOR THE RULE
A. An Overview of the Penalty Phase
B. The Defense Examination of Capital Defendants
C. The Questionable Reliability of Mental Health Testimony
D. Ineffectiveness of Cross-Examination of Defense Experts in Detecting Unreliability of Defense Mental Health Testimony
E. Ineffectiveness of Other Means of Validating Mental Health Testimony in Ferreting out Unreliability
III. RULE 3.202
A. Acknowledgement of the Problem by the Florida Supreme Court
B. The Preclusion Provisions of Rule 3.202
C. Problems with the Rule
1. No Guidance on Choice of Options
2. Some Defense Experts May Still Testify
IV. LESSER ALTERNATIVE SANCTIONS TO PRECLUSION
A. Holding the Defendant in Contempt
B. The Evidence-of-Refusal Instruction
1. Constitutionality
2. Fairness of Refusal Instructions to the State
C. Evidentiary Preclusion and Limiting Instructions
V. THE CONSTITUTIONALITY OF RULE 3.202
A. The Constitutional Dilemma
B. Preclusion of Witnesses for Discovery Violations
C. Preclusion of Defense Experts in Insanity Cases
D. Preclusion of Expert Witnesses in the Penalty Phase
VI. CONCLUSION

I. INTRODUCTION

No lesson seems to be so deeply inculcated by the experience of life as that you should never trust experts. If you believe the doctors, nothing is wholesome; if you believe the theologians, nothing is innocent; if you believe the soldiers, nothing is safe. They all require to have their strong wine diluted by a very large admixture of insipid common sense.[1]
Lord Salisbury

Psychological testimony based upon the examination of a defendant in the penalty phase of a capital case is critical. If a mentally impaired defendant presents such testimony, it can save his life. If the State fails to rebut such testimony, even an unimpaired serial killer can escape the death penalty.

The State is unfairly prejudiced in the penalty phase of a capital prosecution if only the defendant is able to introduce mental health evidence in the form of psychiatric and psychological expert testimony relying on a clinical examination of the accused. In such cases, psychiatrists and psychologists may testify to their opinions and, additionally, testify as to statements, observations, and tests of the accused that form bases for the experts' opinions. If the accused has elected to invoke his Fifth Amendment right not to testify against himself at trial and the prosecutor has no access to him for psychiatric testing, the State's ability to rebut the mental health testimony will be severely hampered and the State's interest in ensuring the reliability of its evidence is likely to be compromised.

The Florida Supreme Court, in an attempt to put the State in a position to rebut mental health testimony, has recently enacted Florida Rule of Criminal Procedure 3.202.[2] This Rule establishes specific procedures by which the State can rebut the defense's psychological testimony. Specifically, it authorizes courts to order a defendant to be examined by the State's doctors.[3] If a defendant refuses to be examined by the State's doctors, the Rule authorizes the court to preclude the defendant's own medical experts from testifying about their examination of the defendant, although the experts may testify hypothetically.[4] Without question, this preclusion sanction will be effective as a means of ensuring the State an opportunity to respond to a defendant's expert testimony. But, is preclusion constitutional?

The United States Supreme Court has been inconsistent in its rulings on the constitutionality of preclusion of defense evidence. The Court has held that the accused does have a constitutional right to present defense witnesses and that a capital defendant has an almost unlimited right to present defense mitigation evidence.[5] Pursuant to these holdings, the Court has reversed several trial court decisions in which the State used its procedural or evidentiary rules to exclude defense evidence in capital cases.[6] However, the Court also has upheld defense evidence exclusions based upon the State's need to ensure compliance with the established rules of evidence and procedure designed to assure both fairness and reliability in the ascertainment of guilt and innocence.[7]

Although Rule 3.202(e)'s preclusion sanction has not yet faced a constitutional challenge because of its recent enactment, it will be challenged for at least two reasons. First, Rule 3.202(e) is the first penalty phase reciprocal examination/preclusion rule of its kind in the country. Second, the Rule permits trial judges to exclude penalty-phase defense expert testimony regarding mitigating factors.

This Article discusses the constitutionality of Rule 3.202(e)'s preclusion sanction in light of the Supreme Court's jurisprudence. Part II of this Article presents the background of Florida Rule of Criminal Procedure 3.202 and justification for the Rule. This part demonstrates that the State needs to conduct its own examination of a capital defendant if it is effectively to rebut the defense's mental health mitigation testimony. Part III discusses in detail Florida Rule of Criminal Procedure 3.202 and how the Rule's preclusion sanction ensures the State's examination of the accused in a capital case. Part IV discusses alternative sanctions less severe than preclusion and demonstrates that those alternative sanctions would be ineffective in ensuring the State's examination of the defendant. Part V discusses the constitutionality of Rule 3.202(e)'s preclusion sanction and argues that under existing United States Supreme Court precedent, the Rule's constitutionality should be sustained to ensure the reliability of penalty-phase mental health testimony.

II. BACKGROUND AND JUSTIFICATION FOR THE RULE

A. An Overview of the Penalty Phase

Once a defendant is convicted of first degree murder in a capital case, the penalty or sentencing phase begins. In this phase, the judge determines (after the recommendation of the jury, if there is one) whether the defendant is sentenced to life imprisonment or death.[8] Florida, along with every other death penalty state, conducts first degree murder trials in capital cases in two phases.[9] Guilt or innocence is decided in the first phase. If a guilty verdict of first degree murder is returned, the same judge or jury who heard the guilt phase hears the penalty phase.[10] During the penalty phase, Florida and thirty-four of the thirty-six other death penalty states use a statutory system of aggravating and mitigating factors.[11] Under this system, the State first presents its evidence relevant to the aggravating factors.[12] Then, the defendant presents evidence relevant to statutorily enumerated mitigating factors.[13]

Three of Florida's statutory mitigating factors relate to a defendant's aberrant mental state.[14] Because a defendant has the federal constitutional right to present, in the penalty phase of a capital case, anything that might call for a sentence other than death,[15] mental health mitigating evidence must be admitted.

Furthermore, if the State fails to rebut the mitigating factors, they are deemed established.[16] Although it is not a strict counting game, if the State can establish only one aggravating circumstance and the defendant can establish the three mental health mitigating factors, the defendant will likely avoid the death sentence.[17]

B. The Defense Examination of Capital Defendants

To establish the three mental health mitigating factors in the penalty phase of a capital case in Florida, the defendant's doctors will first examine him.[18] The doctors will record some of the defendant's statements and behaviors and administer psychological tests to the defendant.[19] Defense doctors then can testify at trial that, based upon their examination, the defendant meets one or more of the mental health mitigating factors listed in the statute.[20] If the experts testify during the penalty phase but the defendant does not, the defense can gain a tactical advantage because defense counsel can use the expert as a conduit to tell the defendant's story to the court.[21] This set of circumstances allows defense counsel to substitute a professional mental health witness for a poor or inexperienced witness and allows the defendant to avoid cross-examination.

C. The Questionable Reliability of Mental Health Testimony

There are two problems affecting the reliability of mental health testimony. The first is that mental health testimony may be biased or inaccurate.[22] The second is that the clinical interview, the predicate for all mental health testimony, is frequently invalid.[23]

Four attributes of the mental health professionals who conduct clinical interviews may affect the reliability and validity of their examination results: (1) they belong to a science that is "inexact and uncertain";[24] (2) they subscribe to "widely different theoretical positions";[25] (3) they are subject to personal and institutional biases;[26] and (4) they cannot answer forensic[27] questions with any reasonable degree of accuracy.[28]

A clinical interview constitutes three realities, each of which may be subject to errors in reliability. First, it is an event; second, it is an interaction; and third, it is a test.[29]

First, the clinical interview is a complex behavioral meeting in which the accused may exhibit evidence of important clinical behaviors.[30] The examiner's personal and institutional biases may affect the evaluation or event in two ways. It may affect the examiner's evaluation of the data he or she collects, and it may affect the way in which behavior traits or statements are perceived or misperceived, interpreted or misinterpreted, noted or ignored.[31] In addition, perceived facts can be distorted by the clinician's expectations, errors, and biases.[32]

Second, the clinical interview is a conversation between the examiner and the accused. The examiner may ask certain questions, decline or neglect to ask others, and follow up on certain questions but not others. The examiner and the accused may, or may not, be of the same sex, race, and class. These differing characteristics and questioning techniques may affect how the accused answers the examiner's questions.[33]

Third, the clinical interview may also include certain psychological tests.[34] Although the word "test" connotes validity, the reliability of some of these tests is subject to dispute. The scientific literature indicates that the results of even ostensibly objective parts of the clinical interview, such as the projective personality tests, may be influenced by the ways in which the tests are administered, interpreted, or scored.[35] Experts indicate that the "MMPI," the most widely used objective personality test, may not apply in the forensic setting.[36]

If defense mental health testimony is of questionable reliability, how is such evidence made more reliable by introducing additional mental health testimony from the prosecution? The answer lies in the nature of the adversarial system. It is not that the defense mental health testimony is inaccurate per se; rather, it is that because of defects in the science, the clinical examination, and the testing, it may be inaccurate. As a consequence, adversarial testing through the State's own examination is a check on the reliability and accuracy of the defense testimony. After hearing expert testimony from both sides, the jury and judge will ultimately determine reliability. As two medical doctors have stated, "The quintessential standard of quality for the expert witness is that his opinions be scientifically and professionally plausible, reasonable, and sound; other equally sound opinions could be drawn from the same data by other experts."[37]

D. Ineffectiveness of Cross-Examination of Defense Experts in Detecting Unreliability of Defense Mental Health Testimony

Although the adversary system is able to ferret out the defects in reliability of some evidence, commentators[38] and the judiciary[39] have questioned the effectiveness of cross-examination in exposing the unreliability of testimony from mental health professionals. Many factors make cross-examination of a mental health professional a poor means of illuminating testimony defects to the jury;[40] not the least of these factors is that the methodology of clinical evaluations insulates the experts' opinions from reproach.[41]

E. Ineffectiveness of Other Means of Validating Mental Health Testimony in Ferreting out Unreliability

Prior to the promulgation of Rule 3.202, the Florida Supreme Court allowed two procedures to help the State rebut mental health testimony. According to the Florida Supreme Court, the "only avenue available for the State to offer meaningful expert testimony to rebut the defense's evidence of mental mitigation" was to allow the State's expert to remain in the courtroom during the defense expert's testimony.[42] Exempting the State's experts from the witness sequestration rule, the court allowed them to remain in the courtroom while the defense experts testified because it was the only way for the State's experts later to rebut the defense testimony.[43] But now that Rule 3.202 has been enacted and there is another avenue available for the State to offer meaningful expert testimony to rebut defense experts, the future of the State's "sit-in" rule is probably in question.

The Florida Supreme Court also allowed the prosecutor to depose the defense experts as soon as the defense listed them. Although both the "sit-in" rule and State depositions of defense experts are still available, the enactment of Rule 3.202 has added, inter alia, another procedure to help the State rebut mental health mitigation testimony by permitting the trial judge to enter an order allowing the State's experts to review the defense experts' data.[44]

However, simply allowing the State or its experts to review the defense experts' data is ineffective as an alternative to having the defendant examined by the State's doctors. Without their own examination, the State's experts will have only the defense experts' work product from which to testify. The State's experts will not be able to ask the defendant questions that the defendant's experts did not ask. Nor will the State's experts be able to ask follow-up questions suggested by the defense examinations. And they will not have available, in the absence of the State's own examination, the defendant's facial expressions and other body language during questioning.

When the defense lists its experts, the State already has an automatic opportunity to review defense experts' data for use in cross-examination. A prosecutor may interview or depose defense experts as a prelude to the defense doctors' testifying on direct examination for the defendant.[45]

However, these compensations to the State—of merely allowing its experts to sit in a courtroom while defense experts testify or of permitting the State to depose the defense experts and review their data[46]—are ineffective methods of ferreting out unreliable mental health testimony. The State, therefore, needs its own rebuttal examination of capital defendants who intend to present mental health mitigation testimony.

III. RULE 3.202

A. Acknowledgement of the Problem by the Florida Supreme Court

The Florida Supreme Court has acknowledged that unless the State rebuts mental health mitigation evidence, it is deemed established.[47] The supreme court also has recognized the State's disadvantage in rebutting mental health mitigation testimony[48] and has adopted an insanity-type rule to cure the problem. Florida's insanity rule has both a provision for compulsory examination—a provision allowing the State to conduct its own examination of the defendant[49]—and a preclusion sanction.[50] This sanction, crafted from case law, automatically precludes defense experts from testifying if the defendant refuses the State's compulsory examination.[51]

B. The Preclusion Provisions of Rule 3.202

Rule 3.202 establishes procedures to offer defense evidence and to grant the prosecution compensating opportunities. First, when a capital defendant intends to present, in the penalty phase, the expert testimony of a mental health professional who has "tested, evaluated, or examined the defendant in order to establish statutory or nonstatutory mental mitigating circumstances . . . , he or she must provide written notice of intent to offer that testimony."[52] Second, after the filing of the notice and on motion of the State within forty-eight hours of the defendant's conviction for capital murder, the court shall order the defendant examined by the State's mental health expert.[53] Third, "if the defendant refuses to be examined by or fully cooperate with the State's mental health expert, the court may . . . order the defense to allow the State's expert to review all mental health reports, tests, and evaluations by the defendant's mental health expert; or prohibit defense mental health experts from testifying concerning mental health tests, evaluations, or examinations of the defendant."[54]

According to the Rule, if the defendant refuses the State's examination, and the defendant's experts would be able to testify only about their examination, evaluation, or testing of the defendant, the defense experts may be precluded from testifying if all they did was examine, evaluate, or test the defendant.[55] Although Rule 3.202 helps to put the State in a position to rebut mental health mitigation testimony, there are several problems with the new Rule.

C. Problems with the Rule

There are several problems with Rule 3.202(e). First, when a defendant refuses the State's examination, the Rule provides no guidelines to the trial judge as to which sanctioning option she should choose for a particular situation. This failure will cause the Rule to be applied without uniformity. Second, the Rule will allow some defendants to circumvent the Rule. Defense experts, by excising that part of their testimony that relates to their contact with a defendant, will still be able to testify hypothetically that the defendant meets the mental health mitigating factors.

1. No Guidance on Choice of Options

When the defendant refuses the State's examination, the trial judge has the following options: 1) to let the defense doctors testify, but let the State doctors review the results of the defense experts' examination and testing of the defendant, or 2) to let the defense experts testify, but prohibit them from testifying concerning the testing, evaluation, or examination of the defendant.[56]

The Florida Rule will be difficult for trial courts to apply because the Rule provides no guidelines for selecting the options. Why would a trial judge choose the first sanction over the second sanction? The State already can discover information developed by defense experts because Florida permits discovery depositions and discovery of opinions of experts.[57] Why did the Florida Supreme Court insert the first sanction? Does this option give the State a fair chance to rebut defense mitigation testimony when defense experts will be able to back up their testimony with the results of their examination and testing of the defendant, while the State's experts will have no such backing? Will the threat of using the first option of the Florida Rule make the defendant submit to the State's examination?

Perhaps the court intended that the first option be used in nonwillful refusal situations in which the defendant's refusal is due to his mental illness. In such cases, the court may have considered that mandatory preclusion may distort the truth by concealing the defendant's mental illness from the capital sentencer. That is, if the defendant had not refused the State's examination, State doctors would have confirmed the defendant's mental illness. Because the State cannot execute an insane defendant,[58] only an appellate court would then have the uncertain opportunity to discover and resolve this remote possibility in postconviction proceedings. This option allows this evidence of insanity at the trial level.

As to the second option, why would a judge use this "carve-out" sanction instead of total preclusion of the expert? The Criminal Procedure Rules Committee of The Florida Bar urged the Florida Supreme Court to include only preclusion/excision of defense experts as an option,[59] but the court rejected that position and adopted the "review or excise" rule.[60] Although it has approved mandatory preclusion in insanity cases,[61] the court is perhaps concerned with the constitutionality of mandatory preclusion in light of the United States Supreme Court's opinion in Lockett v. Ohio,[62] which requires admission in the penalty phase of any relevant mitigating evidence that might call for a sentence less than death.[63] If so, such concern is misplaced. The cases that predated Lockett and those that have followed have demonstrated clearly that potentially relevant defense mitigation testimony can be excluded in the penalty phase if such evidence is unreliable and unfairly prejudices the State.[64]

2. Some Defense Experts May Still Testify

According to the plain wording of Rule 3.202(e), some defense experts may still testify, even if the defendant refuses the State's examination. They must simply excise all mention of their examination, evaluation, or testing of the defendant.[65] But how can an expert carve out or disregard one-half of what she knows and render an opinion based only on the other half? If the expert cannot separate the two halves and tells the court she cannot render an opinion based on the trial court's use of the second option, the court is back to the type of total preclusion used in insanity defense cases.[66] With more appellate issues for the defense, the trial court's time is wasted in hearings to decide which sanction to impose.

Rule 3.202(e) contains another problem. If the defense expert is able to carve out the results from his examination of the defendant and still testify, or if the defense presents a mental health expert who has not examined the defendant, the defendant may still use such an expert to circumvent the plain intent of the Rule.

The purpose of the Rule is to level the playing field between the defendant and the State.[67] Therefore, if the defendant refuses a State examination, the defendant's expert should not be able to use the results of her examination as a basis of her opinion before the jury. Although that is what the Rule provides, the State may be prejudiced by a situation in which Rule 3.202 still permits the defense expert to testify.

For example, the defense could call a nonexamining defense expert in the penalty phase to testify generally as to what constitutes extreme mental or emotional disturbance or some other mitigating factor. The expert could then describe the characteristics of individuals who meet that mitigating factor. Then, the defense could present lay witnesses, such as the defendant's mother or brother, who could testify that the defendant possesses those characteristics. The defense could thereby present to the judge or jury the factual equivalent of a defense examination of the defendant as a basis for an expert's opinion.[68]

The court has left this opening for capital defendants by patterning Rule 3.202 on its decision in Hickson v. State.[69] In Hickson, the court held that the defense could present either of two kinds of battered-spouse expert testimony at trial.[70] First, the defense could present an expert who would generally describe battered-spouse syndrome and the characteristics present in individuals suffering from the syndrome, in which case the State would have no right to examine the defendant.[71] The State also could present an expert who could generally describe the characteristics of the syndrome.[72] Under this Hickson option, the State would have no right to have the defendant examined.

Under the second Hickson option, if the defense planned to present an expert who had examined the defendant and would state that the defendant suffered from battered-spouse syndrome, the State could elect to examine the defendant and, if the defendant refused, the court could preclude defense experts from testifying.[73]

In Dillbeck v. State,[74] the Florida Supreme Court adopted the Hickson rule for use in capital cases and thereby provided a capital defendant with a means of presenting expert mental health mitigation testimony without submitting to an examination by the State.[75] By adopting the Hickson rule, the Dillbeck court also provided the State with a means of precluding defense experts' evidence when a defendant is examined by his own expert but refuses to submit to the State's examination.

IV. LESSER ALTERNATIVE SANCTIONS TO PRECLUSION

One could easily envision three sanctions less severe than total preclusion of defense mental health experts when an accused refuses to submit to a court-ordered mental health examination by prosecution experts. First, the court could hold the defendant in contempt for refusing a court order. Second, the court could give an evidence-of-refusal instruction to the jury. Third, the court could use sections 90.107,[76] 90.403,7[7] or 90.704[78] of the Florida Evidence Code to exclude the defense evidence or limit the effect of it.

Section 90.107 provides that where evidence is admissible for one purpose but not another, "the court, upon request, shall restrict such evidence to its proper scope and so inform the jury . . . ."[79] Section 90.403 provides that evidence, although relevant, "is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence."[80]

Section 90.704 provides that "[t]he facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence."[81]

A. Holding the Defendant in Contempt

Contempt can be either civil or criminal. The purpose of criminal contempt, when the court is enforcing Rule 3.202,[82] would be to punish the accused for violating a court order compelling him to be examined. The theory is that the defendant's fear of being imprisoned would result in his agreement to be examined by the State's doctor. The purpose of a criminal contempt sanction would be to coerce a defendant's compliance with the court's compulsory examination order.

However, because the maximum sentence in a nonjury trial for criminal contempt is six months,[83] fear of punishment for contempt is unlikely to coerce compliance from a capital defendant who has likely been incarcerated since his arrest and is facing death. The civil contempt sanction, like the sanction for criminal contempt, would hardly produce compliance because a defendant in the penalty phase of a capital case would likely see any delay as a benefit rather than a detriment. Thus, imposing civil or criminal sanctions would be ineffective in getting the defendant examined by the state doctors, but it would achieve one thing; it would interrupt and delay the trial and, for that reason, is contraindicated.

But a defendant facing a possible death sentence might refuse the court-ordered mental health examination and might even do so on advice of his lawyer. The lawyer, simply considering a cost-benefit analysis to the accused in this life and death struggle, might be tempted to give such advice.[84] The difficulty in assessing blame between the defendant and his lawyer, as well as the relatively insignificant period of incarceration, would render the contempt sanction useless.[85]

B. The Evidence-of-Refusal Instruction

As an alternative to precluding defense experts from testifying because the defendant refused the State's examination, the court could let the defense experts testify, but it could give the jury a preliminary instruction. The court could, in this regard, instruct the jury as follows: "The defendant in this cause filed a notice of intention to present, during the penalty phase of this trial, expert testimony of mental health professionals who had tested, evaluated, or examined the defendant in order to establish statutory or nonstatutory mental mitigating circumstances. Consequently, pursuant to Rule 3.202, I ordered the defendant to be examined by a mental health expert chosen by the State. The defendant refused to be examined by the State's expert. You may consider the defendant's refusal in considering the testimony of his experts."

However, there are three problems with an evidence-of-refusal instruction. First, it is sometimes difficult to determine whether, in fact, the defendant's conduct constitutes a "refusal" to be examined by the State's doctors. Second, an evidence-of-refusal instruction might arguably constitute an unconstitutional comment on the defendant's Fifth Amendment privilege against self-incrimination. Third, if the defense experts do testify, even with an evidence-of-refusal instruction, the State's case could suffer prejudice because the defense could explain away the refusal in its closing argument.

1. Constitutionality

Before considering whether to give an evidence-of-refusal instruction, the court must determine whether, in fact, the accused has refused to cooperate with the examination. In State v. Williams,[86] the State's psychiatrist examined the defendant.[87] During the examination, the defendant was "evasive and uncooperative," responded "I don't know" to many questions, and denied any memory of the time the crime was committed.[88] The State's doctor was unable to elicit any detailed background of defendant's medical history.[89] Upon reexamination, the defendant continued to be uncooperative.[90]

Based on the defendant's conduct, the State sought to have the trial court preclude Williams's insanity defense and exclude the defendant's expert from testifying because of the defendant's refusal to be examined by the State's doctor.[91] The court denied the State's motion, and the defense expert testified at trial, as did the State's doctor.[92] The defense doctor testified to the defendant's insanity, and the State's doctor, basing his opinion on examinations of the accused and reports of other experts, concluded that the defendant was "malingering to avoid criminal prosecution."[93] The prosecution's doctor diagnosed the defendant as having an "adjustment disorder and an antisocial personality disorder."[94] The trial jury rejected the insanity defense and found the defendant guilty, and the defendant appealed. In considering the State's cross-appeal that the trial court should have precluded the defendant's defense of insanity based on his refusal to be examined by the State's doctor, the Arizona Supreme Court rejected the State's argument.[95] The court said that "[a]lthough defendant was uncooperative and evasive, his behavior provided support for [the prosecution's psychiatric] diagnosis of malingering to avoid prosecution. The trial court found that [the State's doctor], aided by collateral sources, was able to reach a conclusion about [the] defendant's ability to tell right from wrong . . . ."[96]

Based upon the reasoning in Williams, a court should look beyond a capital defendant's words of refusal. If a prosecution expert, upon the basis of his contact with the defendant and his use of collateral sources, has enough information to reach a conclusion about the applicability of the mental health mitigating factors, the defendant has not refused to be examined and, consequently, cannot be sanctioned.

If, however, the State's doctor cannot render an opinion because of the refusal, can a trial court, as an alternative to preclusion, constitutionally instruct a jury about that refusal? The United States Supreme Court discussed the constitutionality of evidence-of-refusal instructions in South Dakota v. Neville.[97] In Neville, the defendant refused a chemical test to determine his blood alcohol level.[98] A state statute permitted the defendant's refusal to be used against him at trial, but the trial court suppressed the evidence of the refusal.[99] The South Dakota Supreme Court affirmed the suppression of the refusal and held that the defendant's refusal was a "communicative act" protected by the federal and state privilege against self-incrimination.[100]

The United States Supreme Court disagreed. Justice O'Connor, writing for the majority, cited authority for the proposition that a refusal is not testimonial but is a real or physical act and is "similar to other circumstantial evidence of a consciousness of guilt, such as escape from custody and suppression of evidence."[101] However, Justice O'Connor avoided deciding the case on whether a refusal was real or physical evidence, on the one hand, or a communication or testimony, on the other. She chose to ground her opinion on the compulsion or coercion issue.[102]

The Neville Court held that the coercion requirement comes straight from the text of the Constitution.[103] The Court concluded, "[T]he State did not directly compel [Neville] to refuse the test, for it gave him the choice of submitting to the test or refusing [it]."[104] The Court stated, however, that the mere fact that the defendant is given a choice does not end the compulsion analysis.[105] The Court referred to the "classic Fifth Amendment violation—telling a defendant at trial to testify . . . ."[106] In such a case, the defendant would be placed in a "cruel trilemma": "submit to self-accusation, or testify falsely (risking perjury), or decline to testify (risking contempt)."[107] The Neville Court noted that it "had long recognized that the Fifth Amendment prevents the State from forcing the choice of this 'cruel trilemma' on the defendant."[108]

In rejecting the applicability of the "cruel trilemma" example to the case before it, the Neville Court found that the privilege against self-incrimination protects only against incriminating results flowing from constitutionally protected choices.[109] The Court reasoned, "Unlike situations in which a defendant has a constitutional right to remain silent at trial and thus not incriminate himself, [the defendant in this case] is lawfully required to submit to chemical testing and is not protected by the Constitution when he refuses."[110] Just as the defendant in Neville was lawfully required to submit to chemical testing and was not protected by the Constitution when he refused, a capital defendant is lawfully required to be examined by State's doctors when he chooses to put his mental state at issue. If he refuses, he is likewise not protected.

Although not directly addressing the constitutionality of an evidence-of-refusal instruction in insanity cases, the Ninth Circuit held, in a corollary situation, that the State can introduce testimony of the defendant's refusal to submit to an examination and will not thereby implicate the defendant's privilege against self-incrimination. In Karstetter v. Cardwell,[111] the defendant who had filed notice of his intention to plead not guilty by reason of insanity refused, based on the Fifth Amendment, a court order to be examined by the State's doctors.[112] Over the State's objection, the defense put on its insanity defense.[113] In rebuttal, a State psychiatrist told the jury that the defendant had "refused" a psychiatric examination.[114] The Ninth Circuit, in considering the effect the State doctor's testimony had on the defendant's Fifth Amendment privilege against self-incrimination, held that the defendant's privilege against self-incrimination did not protect him from being compelled to talk to the State's experts.[115] The court stated that, in the Ninth Circuit, a trial court could order a psychiatric examination of a defendant if that defendant intended to use the insanity defense and present expert testimony on the issue.[116] A court could not, however, go too far by giving a consciousness-of-guilt instruction.[117]

In United States v. Wagner,[118] a State doctor testified that he had attempted to examine the defendant, who had refused examination.[119] The district court instructed the jury that there was evidence that the defendant had refused to obey a lawful court order to speak to a government psychiatrist.[120] The court told the jury that the order did not violate the defendant's privilege against self-incrimination because it did not require the defendant to testify.[121] However, the jury was not to consider the refusal to obey the order sufficient to show guilt of the offense charged because an innocent person held on such charges might refuse to submit to a psychiatric examination.[122] The jury was allowed to consider the defendant's refusal, however, and to "give it such weight as [the jury thought] it was entitled to as tending to prove consciousness of guilt."[123] But the Ninth Circuit, in reversing the district court, stated that "this court has held that '[a]n attempt by a criminal defendant to suppress evidence is probative of consciousness of guilt and admissible on that basis.' . . . However, a defendant's refusal to submit to a mental examination does not suppress evidence directly implicating the defendant in the underlying crime."[124]

As suggested in Wagner, evidence-of-refusal instructions have also been used in non-DUI cases when, for example, defendants refused to be fingerprinted or refused to appear in a lineup.[125] In addition to the grounds stated in Wagner, these instructions have withstood Fifth Amendment objections because the refusal to submit has been interpreted as a physical act rather than a communicative act.[126] Such refusal does not involve the compelling of "testimonial" evidence because, as stated by Justice O'Connor in Neville, coercion is the issue, not the testimonial/physical dichotomy.[127]

Based on Neville, a defendant in the penalty phase of a capital case has no constitutional right to refuse the State's compulsory examination.[128] Consequently, a court can lawfully require a defendant to submit to such examination, and the Constitution does not protect such defendants when they refuse.

Admitting evidence that a defendant in the penalty phase refused to be examined by the State's rebuttal experts, therefore, meets the Neville tests so long as the instruction does not constitute a "consciousness of guilt" instruction. The defendant's refusal is not coerced. The defendant is the one who has raised the mental health defense. He has, in this regard, raised an affirmative defense to the imposition of the death penalty,[129] and if the State does not rebut the defense, the mitigation evidence is established as a matter of law.[130] As noted by the United States Supreme Court in Walton,[131] defendants who raise mental health mitigation issues are, in essence, raising affirmative defenses;[132] hence, they are not being compelled to do anything. The government is simply placing the condition of a required State examination on such a defendant's exercise of the state-granted right to raise mental health mitigation. The penalty-phase defendant is being given a constitutional choice. He is not being placed in the trilemma.

Advising the sentencing jury that the defendant refused the State's compulsory examination could, however, affect the reliability of the sentencing jury's decision to the detriment of the defense. The defense evidence may be accurate and it may be reliable. The jury just does not know in the absence of the State's examination, and the instruction will put a jury on guard as to this aspect. Through the instruction, the jury will become aware that the evidence cannot be validated or contradicted because the State has been precluded from administering its independent examination. The sentencing jury may disregard the defense evidence in light of the refusal instruction and may, therefore, recommend the death sentence. The defense will naturally prefer, without waiving its objection to having to choose between two allegedly unconstitutional choices, to have the refusal instruction in lieu of preclusion. However, the issue for the court is the integrity of the trial evidence.

2. Fairness of Refusal Instructions to the State

If an evidence-of-refusal instruction is used, defense experts may still testify during the penalty phase. However, an evidence-of-refusal instruction does not level the playing field for the State because the State's penalty-phase argument on the refusal issue will never adequately rebut the defense argument. For example, the State, pursuant to an evidence-of-refusal instruction, may argue during its penalty-phase closing argument that the defendant refused the State examination because the defendant is faking a mental disorder and seeking to avoid detection. The defense may then argue, assuming defense experts have provided a testimonial basis, that the defendant refused the examination because the defendant is a paranoid schizophrenic. How do we know that the defendant is a paranoid schizophrenic, the defense will query? Because, the defense will argue, the defense experts say so based upon their examination of the defendant. The defense experts may even say that agreeing to examinations by doctors they trust (the defense examination) and refusing examinations by doctors they do not trust (the State's requested examination) is a typical reaction for a paranoid schizophrenic. Hence, the defense is always likely to defeat the State's argument when a refusal instruction is used as an alternative to preclusion.

Consequently, fear of receiving evidence-of-refusal instructions will not force capital defendants to submit to the State's compulsory examination because it is too easy for the defense to explain why the defendant refused the State's examination. The evidence-of-refusal instruction, furthermore, does not provide an equitable alternative to the State's need for the compulsory examination of the accused.

Why should a court or the State rely on an evidence-of-refusal instruction if, in fact, penalty-phase preclusion of defense experts is constitutional? After all, preclusion is less problematic, better ensures the reliability of mental health testimony, and is more effective in maintaining a fair defendant/prosecution balance.

C. Evidentiary Preclusion and Limiting Instructions

The Florida Evidence Code, which is based on analogous rules in the Federal Rules of Evidence, contains provisions that may be used on a case-by-case basis to preclude defense evidence or limit its effect. From the previous discussion concerning the unreliability of mental health testimony, it would seem that the defense's psychiatric testimony may, at times, be held inadmissible under Florida Statutes sections 90.107, 90.704, and 90.403 because certain theories have failed to gain general acceptance in the field to which they belong.[133]

Experts who testify perform two tasks. They give opinions to the trier of fact and, typically, they relate to the factfinder the factual basis for those opinions. If a defense expert can testify that, in his opinion, the defendant is subject to one of the mental health mitigation factors, may the doctor tell the jury that the opinion is partly based upon 1) the written and/or oral statements of the accused during the clinical examination and psychological testing and 2) the expert's observations of the accused? Put another way, may the State prohibit a defense doctor from informing the jury of the basis of her opinion? If not, may the State obtain a limiting instruction[134] informing the jury that it should consider the defendant's statements and conduct only as they relate to the basis of the expert's opinion, but not as proof of the truth of those statements? Would such a limiting instruction, even if it were constitutional, ensure the reliability of the mental health evidence and ensure the State a fair opportunity to rebut the testimony?

Federal Rule of Evidence 703—Florida Statutes section 90.704's analogue—defines the information upon which an expert can rely in giving opinions.[135] However, Federal Rule 703—and, consequently, section 90.704—addresses the admission of the information.[136] Some courts admit the information upon which an expert relies as "full, substantive evidence."[137] Other courts admit the opinion of the expert only as substantive evidence[138] underlying facts for the "limited purpose of explaining or supporting the expert's opinion.[139] One federal court has said that Federal Rule 703 "is like a hearsay exception: disclosure of the source underlying an expert's opinion requires trustworthiness and reliability."[140]

Whether juries can distinguish between evidence admitted substantively and evidence admitted for a limited purpose is doubtful.[141] Courts routinely give limiting instructions to help juries distinguish between the two, but the effectiveness of limiting instructions is also questionable. Some courts and commentators suggest that such instructions are ineffective and disregarded by juries,[142] while others maintain that juries can and do follow the court's limiting instructions.[143]

Section 90.403, Florida Statutes,[144] also could be used in conjunction with section 90.704, Florida Statutes, in order to (1) exclude a defense expert's entire testimony or (2) redact from the jury's consideration that part of the expert's underlying opinion pertaining to the defendant's statements, behaviors, and test results when the probative value of such testimony is substantially outweighed by the danger of prejudice, confusion of the issues, or misleading of the jury.[145]

When a capital defendant refuses the State's compulsory rebuttal examination, the State could argue that the defense's mental health testimony has no probative value or that any probative value is substantially outweighed by the dangers of unfair prejudice to the State, confusion of the issues, or misleading of the jury. The State, in this regard, can make an argument in accord with authority, cited previously in this Article, that mental health testimony is unreliable[146] and, hence, without probative value and that its admission would unfairly prejudice the State or mislead the jury. If the court refuses to exclude the defense testimony in its entirety, the State could seek to exclude that part of the defense expert's testimony relying on the defendant's oral or written statements obtained from clinical examinations or psychological testing as hearsay and an attempt to admit the defendant's statements without subjecting them to cross-examination.[147]

Even if the State loses this point, the court could preclude defense experts from repeating any of the defendant's exculpatory statements. The court could prohibit the defense expert from being used as a conduit for the defendant's testimony by requiring the expert to transmit to the jury paraphrased, as opposed to verbatim, exculpatory statements upon which the expert relies.[148]

If a court refuses to exclude the defendant's statements in their entirety or to restrict the defense expert to a summary of the defendant's statements, the State would be left with the option of asking the court to issue a limiting instruction on the admitted evidence. Fear of this sanction, it would be hoped by the State, would force the defendant's participation in the compulsory examination. However, fear of receiving a limiting instruction will not force a capital defendant to submit to the State's compulsory examination because, as previously discussed,[149] it is too easy for the defense to explain why the defendant refused the State's examination.

Preclusion is better than any lesser alternative sanctions. It is less problematic, more reliable, and more effective in maintaining a fair individual/State balance. But, is it constitutional?

V. THE CONSTITUTIONALITY OF RULE 3.202

A. The Constitutional Dilemma

Although the states do have freedom to draft rules of evidence and procedure to run their own courts, the United States Constitution imposes some limits on those rules.[150] Since 1967, the Supreme Court has recognized, under the Confrontation Clause of the Sixth Amendment, the right of a defendant to present reliable and exculpatory evidence and witnesses in his defense. This right is incorporated through the Fourteenth Amendment and made applicable in all state prosecutions.[151] This right is derived from the Sixth Amendment clause that provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.[152] As stated by the Court in Washington v. Texas,[153] "the framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use."[154] The defendant's general Fourteenth Amendment right to due process also limits the operation of state court rules of evidence and procedure.[155] The defendant's right to present evidence, however, is not absolute, and "[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."[156] If the State interest is strong enough, even relevant and reliable evidence can be excluded.[157]

B. Preclusion of Witnesses for Discovery Violations

The Sixth Amendment provides that an accused has the right to compulsory process for obtaining defense witnesses.[158] The United States Supreme Court, in Washington, interpreted the Sixth Amendment as standing for the proposition that "[t]he right to offer the testimony of witnesses, and to compel their attendance . . . is in plain terms the right to present a defense. . . ."[159] The right is applicable to the states through the Due Process Clause of the Fourteenth Amendment.[160] But the right is not absolute, for the "Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system . . . ."[161]

The Court explored the conflict between defense witness preclusion and the Sixth Amendment right to present a defense in Taylor v. Illinois.[16]2 In Taylor, the trial court excluded an important defense witness whose name had not been disclosed to the State until after the trial began.[163] The Supreme Court, in rejecting the defense argument that the preclusion sanction is unconstitutional per se, discussed the judicial role in ensuring the reliability of evidence admitted at trial.[164] Justice Stevens, writing for the majority, commented, "It is . . . reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed."[165] Justice Stevens stated that the Sixth Amendment does not "allow presumptively perjured testimony to be presented to a jury;"[166] the "mere invocation of that right [the right to offer the testimony of witnesses in a defendant's behalf] cannot automatically and invariably outweigh countervailing public interests."[167] He called for balance and said that the "integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance."[168]

The defense argued that it was unconstitutional to apply the preclusion sanction in Taylor because the State was not unduly prejudiced since the "voir dire examination of [the precluded defense witness by the State] adequately protected the prosecution from any possible prejudice resulting from surprise."[169] But the Court grounded its opinion on the willfulness of the violation.[170] It stated that "[m]ore is at stake than possible prejudice to the prosecution"[171] and that this case "fits into the category of willful misconduct in which the severest sanction is appropriate."[172] Justice Stevens, in expressing concern for the State's ability to rebut testimony such as that of a surprise defense witness, said that if the party's explanation of the discovery violation revealed that the "omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness'[s] testimony."[173]

The Court said that "[o]ne of the purposes of the discovery rule itself is to minimize the risk that fabricated testimony will be believed . . . . If a pattern of discovery violations is explicable only on the assumption that the violations were designed to conceal a plan to present fabricated testimony, it would be entirely appropriate to exclude the tainted evidence regardless of whether other sanctions would also be merited."[174]

The Court also stated that the defendant in Taylor could be punished for the actions of his lawyer because "the client has a duty to be candid and forthcoming with the lawyer, and when the lawyer responds, he or she speaks for the client."[175] The Court explained that "[t]he adversary process could not function effectively if every tactical decision required client approval."[176] Besides, the Court stated, the "protections afforded by the attorney-client privilege" would make it "highly impracticable to require an investigation into their relative responsibilities before applying the sanction of preclusion."[177] As Justice Stevens memorably stated, "Whenever a lawyer makes use of the sword provided by the Compulsory Process Clause, there is some risk that he may wound his own client."[178]

The defendant in Taylor also argued that preclusion was unconstitutional because less drastic sanctions were available.[179] The Court agreed with the defendant but said that other sanctions would be "less effective."[180]

Courts and commentators have variously criticized or applauded Taylor and its constitutional approval of the application of the preclusion sanction even in the presence of less drastic measures that would have been both viable and effective in minimizing the prejudice to the State.[18]1 But Taylor did not deal with the preclusion of defense mitigation testimony in the penalty phase of a capital case.

Perhaps the real key to the constitutionality of the use of Rule 3.202(e)'s preclusion sanction is whether preclusion is necessary to ensure the reliability, integrity, and trustworthiness of mental health testimony. Taylor, in that respect, can be used as precedent to justify preclusion of mental health experts for the defendant's refusing the State's compulsory examination.

The testimony of defense mental health experts is of questionable reliability in the absence of the State's rebuttal examination,[182] and the defendant should not get to use his mental health experts without submitting to the State's examination. Neither the State's ability to sit in the courtroom while the defense experts testify nor its ability to depose defense experts ensures the reliability of the defense evidence in the way that an examination of the defendant would.[183] The State's ability to cross-examine the defense experts also fails to ensure reliability of defense experts.[184]

Assuming that a capital defendant is sane, his refusal to be examined by the State doctors is willful in the Taylor sense. He did, after all, agree to be examined by his own experts. Therefore, his refusal to be examined by the State's doctors can only be willful.

There are less drastic sanctions available to the State in the penalty-phase refusal situation, such as holding the defendant in contempt or issuing refusals or limiting instructions,[185] but, as discussed earlier, they are less effective than preclusion.[186] The danger of relying upon unreliable testimony is just as real in the penalty phase when the defendant does not testify and uses his expert as a conduit for his un-cross-examined testimony as it is when a lawyer lists a witness at the "11th hour."

Taylor was not a death case, but its "11th hour" reliability statement has been cited by the United States Supreme Court in Herrera v. Collins,[187] a death case involving a stay of execution.[18]8 In Herrera, the defendant sought federal habeas corpus relief based upon a claim of actual innocence.[189] The actual innocence claim was based on newly discovered evidence, consisting of affidavits showing someone other than the defendant committed the capital murder.[190] The district court granted a stay of execution pending an evidentiary hearing.[191] The State appealed, and the circuit court vacated the stay.[192] The defendant then sought certiorari review in the United States Supreme Court.[193] Chief Justice Rehnquist, writing for the Court, affirmed the circuit court.[194] The Chief Justice observed that the newly discovered evidence consisted of affidavits; he stated that motions based solely upon affidavits are disfavored because the affiant's statements are obtained without cross-examination.[195] The Court noted that the new witness gave the affidavits more than eight years after the petitioner's trial.[196] The Court had heard no satisfactory explanation as to why the affiant waited until the 11th hour, even after the alleged perpetrator of the murders himself was dead, to make his statements.[197]

A defendant's willful conduct in refusing the State's examination creates a tactical advantage. He has insulated his story from effective testing, and he has minimized the effectiveness of the State's cross-examination of the defense experts. When asked to justify their conclusions, defense experts might simply say their opinions are based on the actions and statements of the defendant during their examinations. The defendant has minimized the State's ability to adduce rebuttal evidence because the State and its experts were not present during the defense expert's examination, the examination was not videotaped, and the State was not given an examination of its own. As a result, the State is left with whatever facts the defense experts offered.

If the decision to refuse the examination is the defense lawyer's, and not the capital defendant's, the defendant is bound by his lawyer's use of that Sixth Amendment shield.[198] If the defendant refuses the examination, and the refusal is due to the defendant's insanity, preclusion in an insanity context is still constitutional under the Sixth Amendment.[199] The defendant in Taylor was totally innocent, and he still had to pay for the sins of his lawyer. Surely the insane are not entitled to any greater constitutional protection than the innocent.

In Washington v. Texas[20]0 and Rock v. Arkansas,[201] trial courts unconstitutionally precluded whole classes of evidence: an accomplice's testimony in Washington[202] and hypnotically refreshed testimony in Rock.[20]3 Can Washington and Rock be used as authority for a court to preclude a defendant's penalty-phase mental health experts when the defendant refuses to be examined by the State's experts? No. In Washington and Rock, there were no procedural prerequisites that the defendants could have followed that would have caused the precluded evidence to be admitted.[204] In the penalty phase, the defendant can have evidence admitted by complying with the State's constitutionally permissible compulsory examination, just as the defendant in Nobles could have had his testimony admitted into evidence by producing the investigator's report to the court for an in camera hearing.[205]

C. Preclusion of Defense Experts in Insanity Cases

For a defendant to raise the insanity defense, he must be examined by medical experts, usually psychiatrists or psychologists.[206] During this examination, the defendant usually tells the experts his version of the facts of the crime.[207] Based upon that version, the expert may opine that the defendant is, or was, insane.[208] At this point, the expert is listed by the defense to appear as a witness at trial.[209] If, however, the defense expert does not offer the opinion that the defense seeks or expects, another defense expert may be called to examine the defendant.[210] Even though several experts may interview the defendant, the defense is not required to tell the State about them if it does not expect to call those experts as witnesses at trial.[211]

Therefore, defense attorneys can have experts examine the defendant repeatedly until they find the testimony they want. The attorney-client privilege and the work-product doctrine insulate the defendant from the prosecution's awareness that several experts were interviewed before the defense found an expert who would testify favorably for the defense. If the defense finds an expert who supports the insanity plea and it intends to call the expert at trial, the defense must provide the name, address, and substance of the witness's testimony to the State.[212] Once the defense announces its list of expert witnesses, one of three things will occur at trial in presenting the defense: (1) the defendant will testify, but not the experts;[213] (2) the experts will testify, but not the defendant;[214] or (3) both the defendant and the experts will testify.[215]

Of these options, usually the defense experts testify, but not the defendant.[216] This is safer for the accused because his story is related to the jury by a professional witness and he can avoid cross-examination by the prosecution.[217] Additionally, a poor persuader can be exchanged for an expert who is a good persuader.[218]

The State must rebut the defense of insanity.[219] There are four ways in which the State may prepare to rebut the defense expert's opinion that the defendant was insane at the time the crime was committed.[220] First, the prosecutor could depose or interview the defense doctors, if such discovery is permitted.[221] The State doctor would then use this information when he testifies in the State's rebuttal case. Second, the State could try to take the deposition of the defendant or force the defendant to testify at trial as a predicate for his expert's testimony.[222] Third, a State doctor could sit in the courtroom when the defense doctor testifies, if the court finds that preparation a necessary compensation for the inability to examine the defendant.[223] Using notes taken during that testimony, the State's doctor would be a rebuttal witness following the defendant's insanity presentation.[224] Fourth, the State could attempt to have the court order the accused examined by prosecution rebuttal doctors.[225]

Only the last preparation method mentioned (having the defendant examined by a doctor for the prosecution) is both constitutional[226] and also gives the State a fair opportunity to rebut the defense of insanity.[227] The problem with the first and third rebuttal preparation methods is that, although they help the State combat the defense testimony in some respect, they do not attack the root of the problem, which is access to the defendant.[228] The defense doctors' opinions are based upon their examination and testing of the accused,[229] and those opinions are subjective, not objective.[230] The defense doctors are not giving opinions upon such immutable principles as chemical reactions. When they offer opinions on insanity, they are basing them upon the mutable principles of the psychiatric examination. In this regard, a defense doctor's statement that the defendant is insane is based, in large part, upon selective statements obtained by the defense expert during the examination of the defendant.[231] The defense expert may have rejected, and not even have written down, certain statements of the accused that might indicate the defendant is sane.[232] But, because there is no requirement that the psychiatric interview be recorded, the State will never know upon which statements the defense expert is relying and what statements the defense expert is choosing to ignore.[233]

The second rebuttal preparation method—forcing the defendant to testify at trial—is clearly unconstitutional because it would violate the defendant's Fifth Amendment privilege against self-incrimination.[234]

The fourth method, compulsory examination of the accused, is arguably the best of all four rebuttal preparation methods. It is the one used in federal courts[235] and in most states, including Florida,[236] when the defense raises an insanity defense. With this method, if the defendant (fearing compulsory examination by the State) agrees to be examined by State doctors, the State is permitted access to the defendant for examination and testing. Then, if the State has been allowed to perform an examination, the State's doctor will be able to use the State's examination results to rebut, if appropriate, defense expert testimony of an insanity diagnosis based upon defense examination of the accused. Consequently, if the defendant does not refuse the State's compulsory examination, the State has a level playing field and a fair opportunity to rebut the defendant's mental health defense.

However, there are two reasons the defendant may refuse the State's compulsory examination. First, the defendant may refuse because he is faking or malingering and, by refusing the State's examination, he is seeking to evade detection. If this reason is applicable, the State's rebuttal examination would be the best method to ferret out such a malingerer. Second, the defendant may refuse the State's examination because the State doctor may thereby obtain information from the defendant that the prosecutor can use against the defendant in the case on trial or in bringing other charges. That reason is problematic, but solvable.[237]

If the defendant refuses the State's compulsory examination, the court may constitutionally preclude the defendant's experts from testifying that the defendant was insane at the time of the crime.[238] There may be a hearing as to whether the defendant's conduct constitutes a refusal,[239] but once it is determined that there was a refusal, preclusion is automatic in Florida.[240] If the defendant refuses to be examined by a State doctor, the court will use the preclusion sanction to protect the reliability of the evidence.[241] The reason the defendant refused to be examined has no bearing on the court's decision to impose the preclusion sanction.

But, why is it necessary for a court to preclude the defendant's experts from testifying when the defendant refuses the State's examination? Although the Florida Supreme Court has grounded the need for preclusion in fairness to the State,[242] other states have gone further and based preclusion also on the need to ensure the reliability of defense mental health evidence.[243]

In Michigan v. Hayes,[244] a defendant, intending to raise an insanity defense, refused to cooperate sufficiently to allow a State doctor to form an opinion on his sanity.[245] The trial court barred the defendant from offering evidence of insanity.[246] The Michigan Supreme Court, in rejecting the Hayes defendant's Sixth Amendment argument, stated that "the accused must comply with 'established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.'"[24]7 The Hayes court rejected the traditional balancing approach in deciding which sanction to apply for discovery violations and upheld the use of the preclusion sanction when the integrity of the evidence has been threatened.[248]

The Hayes court drew a distinction between a discovery order and a compulsory examination order.[249] It held that "'discovery orders are designed to prevent surprise, not to protect the integrity of evidence sought to be presented.'"[250] The court then stated that compliance with Michigan's compulsory examination statute "is essential to the integrity of the evidence of insanity."[251]

The Hayes court concluded that the Michigan statute "does not unconstitutionally infringe on a defendant's right to present a defense."[252] The court rejected a balancing approach to the problem "as unworkable in the present context . . . [and stated that the] preclusion sanction of the statute is an appropriate means of protecting the integrity, accuracy, and credibility of evidence of insanity."[253]

Clearly, the preclusion sanction is effective in leveling the playing field between the State and the defense in insanity cases, and it preserves the integrity and reliability of a State court's trial evidence. However, is it constitutional to use the preclusion sanction in a capital case when a defendant refuses the state's penalty-phase compulsory examination? Can a capital trial judge preclude defense experts from testifying in the penalty phase in order to protect the integrity and reliability of mental health mitigation evidence, or is the reliability standard applicable only to insanity cases? In the latter situation, after all, the issue is only guilt or innocence. In the former, it is a question of life or death.[254]

D. Preclusion of Expert Witnesses in the Penalty Phase

There is no Fifth Amendment violation when an insanity defendant is subjected to compulsory examination by the State's doctors;[255] but does a penalty-phase compulsory examination violate a defendant's privilege against compelled self-incrimination when the defendant attempts to introduce his own mental health expert testimony? The United States Supreme Court has answered this question in the negative.[256] The Florida Supreme Court, in Dillbeck v. State,[257] followed the United States Supreme Court. The Dillbeck defendant claimed that the trial court had violated his Fifth Amendment right against compelled self-incrimination by requiring him to submit to an examination by the State's mental health expert before the penalty phase.[258] Florida's high court, without specifically mentioning the Fifth Amendment, stated, "[W]e cannot say that the trial court abused its discretion in striving to level the playing field by ordering Dillbeck to submit to a pre-penalty phase interview with the State's expert . . . . No truly objective tribunal can compel one side in a legal bout to abide by the Marquis of Queensberry's rules, while the other fights ungloved."[259]

The defendant in Dillbeck complied with the trial court's compulsory examination order and was examined. A capital defendant's reasons for refusing are analogous to the reasons defendants would refuse compulsory examinations in the insanity context, and the discussion there applies here. As the discussion in part IV.C indicates, the State's expert opinions could be sanitized and portions could be excised before they are transmitted to the jury. The court could admit the evidence with a limiting instruction, grant a continuance so that the defendant could rebut any probative evidence,[260] or admit evidence that independently establishes aggravating circumstances on the theory that the defendant chose to take that risk in raising a mental health defense. When, in this regard, a defendant presents a mental health defense by proxy, that is, through an expert, and does not take the stand to lay the predicate for the expert's opinion, the State's examination is the closest the State can come to being able to cross-examine the defendant. If the defendant takes the stand, the State may, on cross-examination, bring out facts, other than evidence of charged and uncharged crimes, that would help the State prove the elements of the crime charged. The exercise of the right to testify, or, for that matter, to present mental health mitigation, is "not a pathway without stones."[261]

There is another reason a penalty-phase capital defendant may refuse the penalty-phase compulsory examination. If a capital defendant wishes to challenge preclusion for refusing a penalty-phase compulsory examination as unconstitutional, the defendant could use refusal of the examination as a means to manipulate the death penalty process. The defendant, in this regard, with little bona fide expert mental health mitigation testimony or any other mitigation evidence, but with several aggravating factors, could advise the court, in accordance with Rule 3.202, that he intends to present mental health mitigation evidence. The court, pursuant to that Rule, would order the defendant examined, the defendant would refuse, and the mental health testimony, which the defendant never really wanted to present anyway, would be excluded. Because of the existence of several aggravating factors, and no or fewer mitigating factors, the defendant would be sentenced to death. The conviction, however, would be reversed, should preclusion be determined unconstitutional per se. The court would send the case back for resentencing and the truth would eventually come out, but the defendant, who was entitled to essentially no mitigating factors, would have doubled the time period before imposition of his death sentence. Because the average time from conviction to execution is eight years,[262] the defendant might be able to stay on Death Row and process his appellate rights for twenty years, all because penalty-phase preclusion could be challenged as unconstitutional. But, is mandatory preclusion of a capital defendant's mental health testimony constitutional when a defendant refuses to comply with a court-ordered, penalty-phase compulsory examination?

As previously stated,[263] in noncapital cases or when mental health defenses are raised in the guilt phase of a capital case, the defense experts who examined the defendant can be precluded from testifying if the defendant refuses the State exam.[264] The preclusion sanction is very effective. It gets the desired result. Defendants are examined by prosecution doctors, and the reliability of mental health testimony is ensured. But, can the same sanction be applied to coerce the examination of a capital defendant in the context of the penalty phase of a death penalty case? Or, are there problems in applying the insanity precedent to the sentencing phase of a capital case?

Prior to 1972, the forty death penalty states inflicted the death penalty arbitrarily and capriciously because there were no guidelines to establish who did, or did not, receive a death sentence.[265] Receiving the death penalty was as capricious an event as "being struck by lightning."[266] By "the mid-twentieth century, every state wishing to employ the death penalty had turned away from the traditional mandatory death penalty for first degree murder (or its locally defined equivalent) and instead had given its juries ungoverned and unreviewable discretion either to impose the death penalty or to dispense mercy."[267] About the defendant, the jurors heard no background information other than what they gleaned from the trial.[268] States executed rapists as well as murderers,[269] and racial discrimination infected the entire process.[270]

Because of these inequities, the United States Supreme Court, in Furman v. Georgia,[271] struck down every death penalty statute in the nation.[272] Beginning with Furman, the Court embarked on a constitutional odyssey comparable to the one spawned by Brown v. Board of Education of Topeka, Kansas.[27]3 As Brown plunged the Equal Protection Clause of the Fourteenth Amendment into segregated schools, Furman drove the Cruel and Unusual Punishment Clause of the Eighth Amendment into the heart of each death penalty statute.

Although the Furman plurality gave no guidance to the states as to what was a constitutionally valid death penalty statute,[274] the Court has made it clear that "death is different."[275] Because death is different, a capital sentencer's discretion to impose, or not impose, the death penalty must be guided.[276] The guidance provided by the plurality was a system of aggravating and mitigating circumstances. The aggravating circumstances help sentencers determine which are the worst crimes and, hence, more deserving of a death sentence. The mitigating circumstances help sentencers determine which defendants are most affected by mitigating circumstances and, hence, more deserving of a life sentence. Therefore, the courts achieved guided discretion by identifying the most unmitigated defendants who committed the most aggravated capital crimes. Subsequent Eighth Amendment jurisprudence added the requirement of individualized sentencing.[277] A valid death sentence could not be based upon a proceeding that excluded as mitigation anything the defendant chose to present that would call for a sentence less than death.[27]8 Woodson v. North Carolina[279] reaffirmed the fact that death is different;[28]0 and Lockett v. Ohio[281] established a capital defendant's substantive, federally protected Eighth and Fourteenth Amendment constitutional rights to present anything in mitigation that might call for a sentence less than death.[282]

Although the United States Supreme Court has not addressed the constitutionality of the use of a penalty-phase preclusion sanction, it has decided two cases establishing bright-line rules that courts may use to decide what evidence must be constitutionally admitted in the penalty phase of a capital case and what evidence may be constitutionally excluded or precluded.[283] These cases have established standards that permit courts to exclude unreliable mitigating defense evidence because it denies the State a fair opportunity to test, rebut, or cross-examine the defense evidence.

In the first case, Chambers v. Mississippi,[284] a third person orally confessed to three different people that he had committed the murder the defendant was charged with committing.[285] The circumstances under which these "confessions" were made bore substantial assurances of trustworthiness.[286] The third person also made, but later repudiated, a written confession.[287] The trial court, in the guilt phase of the defense's case, excluded, under Mississippi's hearsay rule, the testimony of the three persons to whom the third person had confessed.[288] The defense then called the third person as a witness, "laid a predicate for the sworn out-of-court confession, had it admitted into evidence, and read to the jury."[289] During the State's cross-examination, the third person testified that he had repudiated his prior confession.[290] The defense then renewed a prior motion to examine the third person as an adverse witness.[291] Relying on Mississippi's common law voucher rule, the trial court refused to let the defense do so.[292] Justice Powell, writing for the Supreme Court and basing his decision on the Fourteenth Amendment, held that exclusion of this critical evidence, coupled with the State's refusal to permit the defense to cross-examine the third person, denied the defendant a trial with traditional, fundamental due process standards.[293] The Court stated that while the accused must comply with established rules of procedure and evidence to assure fairness and reliability in ascertaining guilt and innocence,[294] "[t]he testimony rejected by the trial court here bore persuasive assurances of trustworthiness . . . . [That] testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice."[295]

Chambers, in dealing with a declaration against penal interest in a murder case, relied on four factors to determine whether proffered evidence was reliable and should be admitted. The four factors were 1) the spontaneous nature of the statements made to a close acquaintance shortly after the murder; 2) other evidence corroborating the statements; 3) the nature of the statements as self-incriminatory and unquestionably against interest; and 4) the unavailability of the declarant for cross-examination.[296]

In the second case, Green v. Georgia,[297] the defendant, at the penalty phase of his capital trial, sought to prove that he was not present when his co-defendant shot the victim.[298] He attempted to introduce the testimony of another witness, who had testified for the State at the co-defendant's trial.[299] According to the new witness's testimony, the co-defendant confided to him that the co-defendant had shot the victim twice after ordering the defendant to run an errand.[300] The trial court excluded the testimony under the hearsay provision of Georgia's evidence code.[301] Stating that substantial reasons existed to assume the reliability of the co-defendant's confession to the new witness,[302] the plurality, citing Lockett, held that the excluded testimony was highly relevant to a critical issue in the punishment phase of the trial and that its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment.[30]3 The Green Court held that highly relevant and reliable evidence could not be excluded from the penalty phase by application of a state's evidence code.[304] The Court relied on four factors in reversing the conviction. The four factors were (1) the spontaneous nature of the co-defendant's statement to a close friend; (2) the fact that evidence corroborating the confession was sufficient to procure a conviction of the co-defendant and a capital sentence; (3) the nature of the statement as against interest and the absence of a reason to believe the co-defendant had an ulterior motive in making it; and (4) the State's consideration of the testimony as sufficiently reliable to use it against the co-defendant and to base a sentence of death upon it.[305] Justice Blackmun, writing for the Court, quoted Chambers and stated, "In these unique circumstances, 'the hearsay rule may not be applied mechanistically to defeat the ends of justice.'"[306]

There are two prongs of Chambers, both of which must be met before there is a due process violation because of exclusion of evidence. The excluded evidence must be critical to the defense and bear "persuasive assurances of trustworthiness."[307] There are also two prongs of Green, both of which must be met before there is a due process violation because of exclusion of evidence in the penalty phase of a capital case. The excluded evidence must be "highly relevant to a critical issue in the punishment phase," and "substantial reasons" must exist "to assume its reliability."[308] Defense mental health testimony satisfies the first prongs of both Green and Chambers because such testimony is critical to the establishment of mental health mitigation factors. But if such testimony is based upon the examination, testing, or evaluation of the defendant by his expert, such evidence, as indicated earlier, is not trustworthy or reliable in the absence of the State's reciprocal examination.

While the ability to cross-examine the in-court witness is important in making constitutionally permissible reliability decisions, as indicated in both Chambers and Green, the credibility of the out-of-court declarant and the trustworthiness of that testimony are the constitutionally significant factors.

In Green, the Court used the Due Process Clause to trump state evidentiary rules precluding important exculpatory defense evidence. If a Florida trial judge uses Rule 3.202 to preclude defense experts, the judge will be using a state court procedural rule to exclude important exculpatory defense evidence, but that is where the analogy to Green ends. In Green, the Court found the excluded evidence reliable and reasoned that admitting it would also be fair to the State because the State had used the same testimony to convict the defendant's co-defendant.[309] Moreover, the defendant did nothing willful to cause the evidentiary dilemma in Green. He did not, for instance, cause the absence of the hearsay declarant and then ask to have the declarant's hearsay statement admitted.[310]

In both Chambers and Green, the Court found the excluded evidence reliable.[311] In both cases, the State was in a position to rebut the defense evidence by adequate adversarial testing through a continuance or cross-examination.

Following Green and Chambers, courts have used the reliability of defense evidence as a benchmark to determine whether such evidence could be precluded in the penalty phase of a capital case. The reliability concept is inextricably intertwined with the state's ability to rebut, contradict, test, or cross-examine such evidence.

In Martin v. Wainwright,[312] the capital defendant's counsel, at the penalty phase, sought to introduce portions of the defendant's jail records, which would have shown "(1) that [the defendant] was 'tremulous' while in jail, thus indicating that he did not 'fake' his tremors during his psychiatric examinations, [and] (2) that he attempted to commit suicide while in jail . . . ."[313] The trial court told defense counsel that the records could be introduced only if all of the records went in, including those records relating to defendant's attack on his parole supervisor.[314] Defense counsel then decided not to introduce any of the records.[315] The Eleventh Circuit upheld the exclusion of the evidence and stated, "Lockett entitles a capital defendant to introduce all relevant mitigating evidence at sentencing, but does not entitle the defendant to pick and choose between portions of documents and records in an attempt to mislead the sentencer."[316]

It might be alleged that mandatory preclusion of defense mental health evidence is an "a priori" determination of the unreliability of certain classes of evidence[317] and that lesser alternative sanctions should be employed.[318] However, the better view is that such considerations do not apply when a court uses the preclusion sanction because the defendant, not the court, is excluding evidence.

In Allen v. Morris,[319] the Sixth Circuit held that excluding the transcript testimony of a defense witness because the defendant failed to exert his own effort to locate the witness, as required by a state hearsay exception,[320] did not violate the defendant's due process right to present defense evidence in the guilt phase of his murder trial.[321] The defendant relied on Green and Chambers and asserted that preclusion of the transcript testimony denied him due process.[32]2 The Allen court stated that the defendant's reliance upon the Supreme Court's decisions in Chambers and Green, wherein the court discussed a defendant's constitutional right to present evidence on his own behalf, was misplaced.[323] The distinction between the facts of Chambers and Green and the facts of Allen is readily apparent. In Allen, the defendant was not precluded from introducing the exculpatory evidence; rather, he was only required to comply with state evidentiary rules in seeking its admission. In Chambers and Green, the exculpatory evidence was excluded, and "no other avenues were available to prove the defendant's story."[324]

Although Chambers, Green, Martin, and Allen support the author's proposition that if a capital defendant refuses the State's examination, the defense experts may be constitutionally excluded, another scholar may disagree with this proposition. This scholar might suggest that even if the defendant refuses the State's examination, the jury should hear the defendant's experts' testimony about their examination, testing, or evaluation of the defendant.[325]

VI. CONCLUSION

A capital defendant is entitled to present mitigating evidence that constitutes "a basis for a sentence less than death."[326] Defense mental health testimony, based upon the examination of a defendant in the penalty phase of a capital case, may be mitigating evidence that means the difference between life and death. Such evidence may save a mentally impaired defendant from execution, or it may so distort the proportionality of the factors involved in imposition of the death penalty that an unimpaired serial killer escapes justice. Therefore, a correct determination of a defendant's degree of mental impairment depends upon admission of reliable mental health testimony in the penalty phase. In cases in which the State has had no opportunity for a rebuttal mental health examination, defense mental health testimony is unreliable.

The preclusion sanction ensures that the State can perform its own examination, which is the key to evidentiary reliability. Lesser alternative sanctions to preclusion, such as limiting instructions, refusal instructions, or contempt citations, are either constitutionally questionable, likely to be misused by the capital sentencer, and/or incapable of giving the State a fair opportunity to rebut the defense mitigation evidence. The preclusion sanction ensures that 1) only reliable mental health evidence is used in capital sentencing proceedings, and 2) a fair individual/State balance is maintained.

Mental health testimony may be of questionable reliability. A penalty-phase capital defendant's mental health testimony that is based on an expert's examination of the defendant is all the more unreliable when the State's experts are not given a right to examine the defendant. However, Rule 3.202 ensures the reliability of any defense mental health testimony by providing for the State's own examination of the defendant. The Rule's preclusion sanction, or the threat of the preclusion sanction, is the only effective sanction to ensure the State's examination.

A capital defendant has an almost unlimited constitutional right, under the Eighth and Fourteenth amendments, to present defense mental health mitigation evidence in the penalty phase of a capital case. However, every defendant, capital or otherwise, must comply with a state's procedural rules in presenting evidence. The United States Supreme Court has upheld as constitutional the exclusion of defense evidence for failure to comply with a state's procedural or evidentiary rules. Although the Court also has reversed cases in which the State has used its procedural rules to exclude defense evidence in capital cases, the excluded evidence in those cases was deemed reliable and trustworthy.

However, the preclusion sanction in Rule 3.202(e) excludes only unreliable defense evidence and only after a defendant has chosen to make his evidence unreliable by refusing to be examined by the State's experts. Consequently, the use of the preclusion sanction is constitutional when a court uses it to exclude a capital defendant's penalty-phase expert testimony in a case in which the defendant has refused the State's compulsory examination.