In Kansas v. Cheever, the Supreme Court recently held that when a defendant presents evidence of lack of mens rea through a psychological expert who has examined him the government may, consistent with the Fifth Amendment, rebut that evidence with testimony from a different expert who examined him in a pretrial, court-ordered examination.   In doing so, the Court clarified and arguably extended its holding in Buchanan v. Kentucky, 483 U.S. 402 (1987), where it allowed such proof to rebut a defense of extreme emotional disturbance, and where the court-ordered examination had been requested by both parties.  The Cheever Court held that the defendant’s assertion of voluntary intoxication that relied on an expert was sufficient to permit the prosecution to rebut because it is a “mental status” defense, even though voluntary intoxication is not a “mental disease or defect” under Kansas law.

Of course, in 1981 in Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that a court-ordered psychiatric examination violated the defendant’s fifth amendment rights where the defendant neither requested the examination nor put his mental capacity in dispute at trial.

The Cheever decision was unanimous.  Yet it is not clear why the content of a defendant’s discussion with a court-appointed expert should be revealed to a jury to rebut the testimony of another expert.  The Court indicated that this was essential to fair and effective impeachment, but, of course, the defendant’s expert is wholly subject to cross.  Certainly, in such a case, the defendant is being “compelled” to be a witness against himself, and, given the prosecution’s ability to cross examine that expert, fairness does not really justify that.  Moreover, although the court likened the situation to allowing a defendant to waive his privilege as to some subjects and not others, that is really not the case, since the defendant did not waive his privilege at the time when he spoke with the court-appointed expert, nor was the same psychiatric issue being investigated.   To the extent that it makes candor costly, the Cheever decision may well have a negative impact on the reliability of court-ordered pre-trial examinations that frequently are conducted for a variety of psychiatric reasons.

Cheever also claimed that if the rebuttal was properly permitted, the testimony exceeded proper limits in that it described broad subjects that had been discussed, i.e., the shooting from his perspective, intimated that he had  a personality disorder and discussing his alleged infatuation with criminals.  The Kansas Supreme Court had not addressed this issue, however, and the Supreme Court declined to address it in the first instance.