[*] Assistant Professor, Stetson University College of Law. B.S., 1968, Florida State University; J.D., 1971, University of Florida. The author is a former prosecutor and former chief in two separate public defender offices and has tried numerous death penalty cases. He is immediate past chair of the Criminal Procedure Rules Committee of the Criminal Law Section of The Florida Bar and a member of the Executive Committee of The Florida Bar's Criminal Law Section. He represented The Florida Bar before the Florida Supreme Court in a petition to implement rules of criminal procedure pertaining to the subject matter of this Article. Stetson University College of Law funded the research for this Article, and the author is grateful for that assistance. The author wishes to thank Stetson College of Law Professors Michael Finch and Jerome Latimer for their reading of earlier drafts and Pam Wooley, Brett Geer, Susan Cranfield, and Martin Fein for their research assistance. Return to text.

[1] OXFORD DICTIONARY OF QUOTATIONS 554 (4th ed. 1992). Return to text.

[2] The Rule became effective January 1, 1996. FLA. R. CRIM. P. 3.202, editor's note. Return to text.

[3] See FLA. R. CRIM. P. 3.202(d). Return to text.

[4] See infra notes 65-71 and accompanying text. Return to text.

[5] Lockett v. Ohio, 438 U.S. 586 (1978); see also infra notes 281-82 and accompanying text. Return to text.

[6] See, e.g., Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see also infra notes 284-306 and accompanying text. Return to text.

[7] See infra part V.B. Return to text.

[8] The "majority of capital punishment jurisdictions vest the life-or-death decision exclusively in the jury. In many states, a death sentence may be imposed only if the jury unanimously agrees that death is the appropriate punishment. Nonetheless, in three states—Alabama, Florida, and Indiana—the trial judge may overrule [override] the jury and impose a death sentence, even if all jurors voted for a life sentence." RANDALL COYNE & LYN ENTZEROTH, CAPITAL PUNISHMENT AND THE JUDICIAL PROCESS 404 (1994); see also LaTour R. Lafferty, Florida's Capital Sentencing Jury Override: Whom Should We Trust To Make the Ultimate Ethical Judgment?, 23 FLA. ST. U. L. REV. 463 (1995). The constitutionality of Florida's jury override provision was upheld in Spaziano v. Florida, 468 U.S. 447 (1984). Return to text.

[9] All capital punishment states provide for separation of a capital trial into two phases: guilt/nonguilt and sentencing. See ALA. CODE § 13A-5-45(a) (1994); ARIZ. REV. STAT. ANN. § 13-703 B. (Supp. 1995); ARK. CODE ANN. § 5-4-602(3) (1993); CAL. PENAL CODE § 190.05(e) (West 1988) (requiring two phases only if defendant served a prior prison term); COLO. REV. STAT. § 16-11-103(1)(a) (Supp. 1995); CONN. GEN. STAT. ANN. § 53a-46a(b) (West 1994); DEL. CODE. ANN. tit. 11, § 4209(b)(1) (1995); FLA. STAT. § 921.141(1) (1995); GA. CODE ANN. §§ 17-10-1(a), 17-10-3(a) (Supp. 1990); IDAHO CODE § 19-2515(e) (Supp. 1995); ILL. ANN. STAT. ch. 38, para. 9-1(d) (Smith-Hurd Supp. 1992) (allowing separate hearing only when requested by the State); IND. CODE ANN. §35-50-2-9(d) (Burns Supp. 1995); KY. REV. STAT. ANN. § 532.025(1)(a)-(b) (Michie/Bobbs-Merrill 1990); LA. CODE CRIM. PROC. ANN. art. 905(A) (West Supp. 1996); MD. ANN. CODE art. 27, § 413(a) (Supp. 1995); MISS. CODE ANN. § 99-19-101(1) (1994); MO. ANN. STAT. § 565.030.4 (Vernon Supp. 1996); MONT. CODE ANN. § 46-18-301 (1995); NEB. REV. STAT. § 29-2520 (1989); NEV. REV. STAT. ANN. § 175.552 (Michie Supp. 1995); N.H. REV. STAT. ANN. § 630:5.II (Supp. 1995); N.J. STAT. ANN. § 2C:11-3(c)(1) (1995); N.M. STAT. ANN. § 31-20A-1.B (Michie 1994); N.C. GEN. STAT. § 15A-2000(a)(1) (Supp. 1995); OHIO REV. CODE ANN. § 2929.03(D)(1) (Anderson Supp. 1995); OKLA. STAT. ANN. tit. 21, § 701.10.A (West Supp. 1996); OR. REV. STAT. § 163.150(1)(a) (Supp. 1994); 42 PA. CONS. STAT. ANN. § 9711(a)(1) (1982); S.C. CODE ANN. § 16-3-20(B) (Law. Co-op. Supp. 1995); S.D. CODIFIED LAWS ANN. § 23A-27A-2 (Supp. 1995); TENN. CODE ANN. § 39-13-204(a) (Supp. 1995); TEX. CRIM. PROC. CODE ANN. art. 37.071.2(a) (West Supp. 1996); UTAH CODE ANN. § 76-3-207(1) (Supp. 1995); VA. CODE ANN. § 19.2-264.4.A (Michie 1995); WASH. REV. CODE ANN. § 10.95.050(1) (West 1990); WYO. STAT. § 6-2-102(a) (Supp. 1995); see also Robert A. Kelly, Applicability of the Rules of Evidence to the Capital Sentencing Proceeding: Theoretical & Practical Support for Open Admissibility of Mitigating Information, 60 UMKC L. REV. 411, 411 (1992). Return to text.

[10] See, e.g., FLA. STAT. § 921.141(l) (1995). Return to text.

[11] This system is based on the Model Penal Code. See MODEL PENAL CODE § 210.6 (Proposed Official Draft 1962); see, e.g., ARIZ. REV. STAT. ANN. § 13-703 (Supp. 1995); COLO. REV. STAT. § 16-11-103 (Supp. 1995); FLA. STAT. § 921.141 (1995). Return to text.

[12] See, e.g., FLA. STAT. § 921.141(5) (1995), which provides the following:

(5) AGGRAVATING CIRCUMSTANCES.—Aggravating circumstances shall be limited to the following:
(a) The capital felony was committed by a person under sentence of imprisonment or placed on community control.
(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual battery, aggravated child abuse, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital felony was especially heinous, atrocious, or cruel.
(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.
(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his official duties.
(k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his official duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity.
(l) The victim of the capital felony was a person less than 12 years of age.
See, e.g., id. § 921.141 (6), which provides:
(6) MITIGATING CIRCUMSTANCES.—Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
See id. § 921.141(6)(b), (e), (f). Other states also specify statutory mitigating factors related to the defendant's mental state. See ALA. CODE § 13A-5-51(2), (5), (6) (1994); ARIZ. REV. STAT. ANN. § 13-703 G.1 (1995); ARK. CODE ANN. § 5-4-605(1), (3) (1993); CAL. PENAL CODE § 190.3(d), (h) (West 1988); COLO. REV. STAT. § 16-11-103(4)(b), (f) (Supp. 1995); CONN. GEN. STAT. ANN. § 53a-46a(g)(2) (West 1994); IND. CODE ANN. § 35-50-2-9(c)(2), (6) (Burns Supp. 1995); KY. REV. STAT. ANN. § 532.025(2)(b)2., 6., 7. (Michie/Bobbs-Merrill 1990); LA. ANN. § 905.5(b), (e) (West 1986 & Supp. 1991); MD. ANN. CODE art. 27, § 413(g)(3), (4) (Supp. 1995); MISS. CODE ANN. § 99-19-101(6)(b), (f) (1994); MO. ANN. STAT. § 565.032.3(2), (6) (Vernon Supp. 1996); MONT. CODE ANN. § 46-18-304(1)(b), (d) (1995); NEB. REV. STAT. § 29-2523 (2)(c), (g) (1989); N.C. GEN. STAT. § 15A-2000 (f)(2), (6) (Supp. 1995); N.H. REV. STAT. ANN. § 630:5VI(a), (b), (f) (Supp. 1995); N.J. STAT. ANN. § 2C:11-3c., (5)a., d. (1995); N.M. STAT. ANN. § 31-20A-6.C., D. (Michie 1994); OHIO REV. CODE ANN. § 2929.04(B)(3) (Anderson 1993); OR. REV. STAT. § 163.150(1)(c)(A) (Supp. 1994); 42 PA. CONS. STAT. ANN. § 9711(e)(2), (3) (1982); S.C. CODE ANN. § 16-3-20(C)(b)(2), (6) (Law. Co-op. Supp. 1995); UTAH CODE ANN. § 76-3-207(2)(b), (d) (Supp. 1995); VA. CODE ANN. § 19.2-264.4.B.(ii), (iv), (vi) (Michie 1995); WASH. REV. CODE ANN. § 10.95.070(2), (6) (West Supp. 1996); WYO. STAT. § 6-2-102(j)(ii), (vi) (Supp. 1995). Return to text.

[15] See infra notes 281-82; see also John Kaplan, Lecture, Evidence in Capital Cases, 11 FLA. ST. U. L. REV. 369, 371 (1983) (stating that "Chief Justice Burger, for a four-justice plurality, held that a state cannot constitutionally prevent the sentencer from 'considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor.'" (quoting Lockett v. Ohio, 438 U.S. 586, 606 (1977)). Return to text.

[16] Dillbeck v. State, 643 So. 2d 1027, 1030 (Fla. 1994) (quoting Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990)). Return to text.

[17] Telephone Interview with David R. Parry, Chief Assistant Public Defender, Clearwater, Fla. (Jan. 25, 1996) [hereinafter Parry Interview]. Return to text.

[18] Telephone Interview with Barry Cobb, Chief Assistant Public Defender, Clearwater, Fla. (July 5, 1996) [hereinafter Cobb Interview]. Return to text.

[19] See infra notes 30-36 and accompanying text. Return to text.

[20] Parry Interview, supra note 17. Return to text.

[21] See infra notes 216-18 and accompanying text. Return to text.

[22] See United States v. Byers, 740 F.2d 1104, 1168 (D.C. Cir. 1984). Return to text.

[23] See Id. Return to text.

[24] See id. at 1167 (Bazelon, J., dissenting) (citation omitted) ("[P]sychiatry is at best an inexact science, if, indeed, it is a science, lacking the coherent set of proven underlying values necessary for ultimate decisions on knowledge or competence.") (quoting Suggs v. LaVallee, 570 F.2d 1092, 1119 (2d Cir.) (Kaufman, J., concurring), cert. denied, 439 U.S. 915 (1978)). This is not only the opinion of jurists, but also the opinion of scientists themselves. See, e.g., 1 JAY ZISKIN & DAVID FAUST, COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY 123 (4th ed. 1988) (quoting CALVIN S. HALL & GORDON LINDZEY, THEORIES OF PERSONALITY 72 (1957) (stating that "[p]sychology has a long way to go before it can be called an exact science"); see also 1 ZISKIN & FAUST, supra, at 126 (quoting Joseph D. Mattarazzo, Computerized Clinical Psychological Test Interpretations, 41 AM. PSYCHOLOGIST 14, 20 (1986)) (stating that "[c]linical psychology today is still an art based on some scientific background and not a mature science . . . . Psychological Assessment is currently almost exclusively the still-to-be-well-validated work of a legislatively sanctioned, clinician-artisan"). Return to text.

[25] Byers, 740 F.2d at 1167 (Bazelon, J., dissenting). The scientists themselves have acknowledged their varying theoretical bases. See, e.g., 1 ZISKIN & FAUST, supra note 24, at 24.

The various personality theories differ widely in their overt and covert conception of people and accordingly in their content and methodology . . . . Such diversion seems to represent not only personality theory per se but psychology as a whole; this raises the question as to the position of personality theory in the field of psychology.
Id. (quoting Jacob Lomranz, Personality Theory: Position and Derived Teaching Implications in Clinical Psychology, 17 PROF. PSYCHOL.: RES. & PRAC. 551, 551 (1986)). These differences have made professionals question the validity of their science. See, e.g., id. at 26 (questioning the validity of Freudian-based psychoanalytical theory and stating that "[w]hat is astounding is how little effort has been made to test the validity of our theories and how long we have remained a shelter for bankrupt ideas") (quoting Thomas Detre, The Future of Psychiatry, 144 AM. J. PSYCHIATRY 621, 622 (1987)). Return to text.

[26] Byers, 740 F.2d at 1167-68 (Bazelon, J., dissenting). Ziskin and Faust have collected scientific authority on this subject and divided it into categories. See generally 1 ZISKIN & FAUST, supra note 24. Return to text.

[27] In the context of this Article, this term pertains to the courtroom. Return to text.

[28] Mental health professionals have acknowledged, in scientific and professional literature, their difficulty in answering forensic questions. See generally 1 ZISKIN & FAUST, supra note 24. Ziskin and Faust suggest several categories regarding these shortcomings. The categories include, inter alia, the dubious status of psychiatrists and psychologists as expert witnesses, the elusive definition of normality, the contamination of data, and common deficiencies in observing, recalling, reporting, and interpreting data. Id. Return to text.

[29] See Byers, 740 F.2d at 1168 (Bazelon, J., dissenting). Return to text.

[30] Id. (citing PAUL H. HOCH, DIFFERENTIAL DIAGNOSIS IN CLINICAL PSYCHIATRY 19-46 (M. Strahl & N. Lewis eds., 1972) and SEYMOUR B. SARASON, THE CLINICAL INTERACTION 7-19 (1954)). Return to text.

[31] See id. at 1169 (citation omitted) (stating that "[o]ne of the clinician's most revealing experiences is to listen to a recording of his interaction with a patient. He becomes embarrassingly aware of how much he forgot or was unconscious of, not only of the patient's behavior but of his own behavior as well") (quoting SARASON, supra note 30, at 9 n.2); E.M. COLES, CLINICAL PSYCHOPATHOLOGY 68-69 (1982) (stating that "[s]ome psychiatrists will reach a diagnostic conclusion within the first few minutes of the interview; and psychiatrists who encounter cues that don't fit with their diagnostic conclusions are prone to misinterpret, misperceive, and even ignore them") (citation omitted); ROBERT ROSENTHAL, EXPERIMENTER EFFECTS IN BEHAVIORAL RESEARCH 7 (1976) (stating that "[e]vents occurring in the clinical interaction are often unobserved or at least unreported by the clinician"). Return to text.

[32] See ROSENTHAL, supra note 31, at 21 (stating that one variable shown to be especially likely to bias the assessment of behavior is expectancy of observer or interpreter); SARASON, supra note 30, at 9 (finding evidence of differences among clinicians' abilities to describe reliably the overt actions of a patient). Return to text.

[33] See Byers, 740 F.2d at 1169 (Bazelon, J., dissenting); COLES, supra note 31, at 68; see also H.A. STORROW, INTRODUCTION TO SCIENTIFIC PSYCHIATRY 76-78 (1967).

One can color what patients say without their knowing what's being done. Even worse, the doctor can do this without realizing it himself . . . . [In one study] [a]pproval-seeking therapists discouraged angry talk by ignoring such remarks . . . . Anger-expressing therapists were likely to do the opposite . . . . Patients encouraged to go on in the same vein did so nine times out of ten; those who were discouraged stopped their angry comments more than half the time.
STORROW, supra, at 76-78. Return to text.

[34] There are two broad categories of tests used in forensic examinations:

First, there are personality tests, which can be . . . divided into what are called "objective" measures and "projective" measures. In essence, objective measures contain relatively nonambiguous items (e.g., "I like science magazines"). Projective measures contain ambiguous items (e.g., abstract inkblots that could look like any of a number of things), and/or allow the respondent wide latitude in his answers or productions (e.g., one draws a picture of a complete person in any manner they like). The Minnesota Multiphasic Personality Inventory (MMPI) is the most widely employed objective personality test. The Rorschach, the Thematic Appreciation Test, the Bender Gestalt, and the Draw-A-Person Test are among the most widely used projective "tests."
Second, there are tests that measure intellectual functions. Some of these are general, or assess overall intellectual abilities. The Wechsler Intelligence scales are the most widely employed for this purpose. There are also specialized tests designed primarily to assess brain functioning or the potential effects of brain damage on particular intellectual functions, such as memory or reasoning. "Neuropsychological tests" is the generic term for the more specialized tests designed for these purposes. These neuropsychological tests may be combined into set combinations, or batteries. The most popular of these are the Halstead-Reitan and the Luria-Nebraska Neuropsychological Battery.
2 JAY ZISKIN & DAVID FAUST, COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY 523, 535-36 (4th ed. 1988). Return to text.

[35] See 2 ZISKIN & FAUST, supra note 34, at 557 (noting the "lack of objectivity in scoring projective tests," and stating that "the final interpretation of projective test responses may reveal more about the theoretical orientation, favorite hypotheses, and personality idiosyncrasies of the examiner than it does about the examinee's personality dynamics") (quoting ANNE ANASTASI, PSYCHOLOGICAL TESTING 582 (5th ed. 1982). Return to text.

[36] See Richard Rogers & William Seman, Murder and Criminal Responsibility: An Examination of MMPI Profiles, 1 BEHAV. SCI. & THE LAW 89, 89-90 (1983) (stating that "there has been little systematic research on the utilization of psychological tests in the examination of criminal forensic patients. From this perspective, Poythress (1979) indicated that standardized psychological tests were not designed to address specific legal questions, and therefore, their generalizability for this purpose has remained unestablished."). Return to text.

[37] Richard R. Parlour & Lawrence R. Jones, The Role of the Defense Psychiatrist in Workmen's Compensation Cases, J. FORENSIC SCI. 535, 542 (1981). Drs. Parlour and Jones set forth their opinion of the expert's role in our adversary system:

Our legal system supposes that the truth best emerges in the adversary procedure established by law. It further presumes that each party to a controversy can and will present his position reasonably and effectively. Implicit is the principle that each side is entitled to the most favorable, believable construction and representation of the facts. Regardless of one's personal philosophy about plaintiffs, defendants, government, the insurance industry, the medical or legal profession, or any issue at stake in society, the litigants do not get their fair day in court if their cases are not optimally presented.
Id. at 536. Return to text.

[38] See, e.g., Gary Melton, Expert Opinions: "Not for Cosmic Understanding," PSYCHOL. LITIG. & LEGIS. 59, 90 (1994) (stating that "[n]otwithstanding the historic assumption in the law that cross-examination is an effective method for illuminating the weaknesses of evidence, it is a poor means of showing the deficiencies (and strengths) of expert opinions"); see also Stephen R. Smith, Mental Health Expert Witnesses: Of Science and Crystal Balls, 7 BEHAV. SCI. & LAW 145, 145-180 (1989) (commenting on the difficulty of cross-examination in attacking the validity and reliability of clinical judgments). Return to text.

[39] See U.S. v. Byers, 740 F.2d, 1104, 1114 (D.C. Cir. 1984) (finding that, ordinarily, the only effective way to rebut psychiatric opinion testimony is by contradictory opinion testimony); State v. Hickson, 630 So. 2d 172, 176 (Fla. 1993) (holding that when a defense expert will be used to demonstrate the presence of battered-spouse syndrome, the State will have the opportunity to have its experts examine the defendant and present findings at trial to rebut expected expert testimony); Parkin v. State, 238 So. 2d 817, 821 (Fla. 1970), cert denied, 401 U.S. 974 (1971) (stating that "[i]llness, particularly mental illness, although often capable of being proved by extrinsic evidence, is considered more susceptible to proof by evidence based on interviews with the defendant and requiring his cooperation"). Return to text.

[40] See, e.g., Smith, supra note 38, at 164 (stating that jurors are ill-prepared to resolve conflicting psychological theories and that attorneys often find it problematic to present validity and reliability questions regarding mental health experts). Return to text.

[41] In overturning a conviction based in part on victim syndrome evidence, the New Hampshire Supreme Court, in State v. Cressey, 628 A.2d 696 (N.H. 1993), noted that because of the mental health expert's methodology, her testimony was "effectively beyond reproach." Melton, supra note 38, at 90 (quoting Cressey, 628 A.2d at 701). Her testimony included interpretation of many factors and, even if one of those factors were attacked, her overall opinion would not be discredited. Id.; see also Smith, supra note 38, at 165. Return to text.

[42] Burns v. State, 609 So. 2d 600, 606 (Fla. 1992). Return to text.

[43] See id. at 606 (discussing the witness sequestration rule and the court's exemption of State experts from the rule's operation). The statutory authority for the witness sequestration rule is section 90.616, Florida Statutes, which provides, in relevant part: "At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses . . . . FLA. STAT. § 90.616(1) (1995). The witness sequestration rule allows the court to prohibit currently nontestifying trial witnesses from being in the courtroom while another witness is testifying. The purpose of the rule is to prevent the coloring of one witness's testimony by listening to the testimony of another witness. Return to text.

[44] See FLA. R. CRIM. P. 3.202(e)(1). Return to text.

[45] See FLA. R. CRIM. P. 3.220 (d)(1)(A) (requiring the defendant to furnish to the State the names and addresses of any witnesses the defendant expects to call and establishing a procedure for the State to examine such witnesses). Return to text.

[46] See supra notes 42-45. Return to text.

[47] See Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990) (stating that "when a reasonable quantum of competent, uncontroverted evidence of a mitigating circumstance is presented, the trial court must find that the mitigating circumstance has been proved") (emphasis added). Return to text.

[48] See Letter from Gerald Kogan, Justice, Florida Supreme Court, to Claire K. Luten, Judge, then Chair of the Criminal Rules Committee of The Florida Bar (Mar. 13, 1991) (on file with author), stating, in relevant part:

There currently is no rule of criminal procedure that would allow a state's expert to examine a defendant facing the death penalty when the defendant intends to establish either statutory or nonstatutory mental mitigating factors during the penalty phase of the capital trial. It thus appears that the state's ability to rebut the defense's evidence of mental mitigation may be limited. Therefore, we request that the committee consider whether a rule similar to Criminal Rule of Procedure 3.216 dealing with the appointment of experts when a defendant intends to rely on the insanity defense should be adopted to provide for the appointment of experts when a defendant in a capital case intends to present mental mitigating evidence.
See FLA. R. CRIM. P. 3.216 (d). Return to text.

[50] See FLA. R. CRIM. P. 3.216 (b). Return to text.

[51] See Henry v. State, 574 So. 2d 66, 70 (Fla. 1991), cert. denied, 116 S. Ct. 101 (1971); Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970), cert denied, 401 U.S. 974 (1971); see also infra note 61 and accompanying text. Return to text.

[52] FLA. R. CRIM. P. 3.202(b). Return to text.

[53] FLA. R. CRIM. P. 3.202(d). Return to text.

[54] FLA. R. CRIM. P. 3.202(e). Return to text.

[55] This result occurs because Rule 3.202(e)(2) permits the trial court to prohibit "defense mental health experts from testifying concerning mental health tests, evaluations, or examinations" and, if the expert can give testimony based only on her testing, evaluation, or examination of the defendant, the court will have to exclude the expert. FLA. R. CRIM. P. 3.202(e)(1), (2). Return to text.

[56] FLA. R. CRIM. P. 3.202(e)(1), (2). Return to text.

[57] See, e.g., FLA. R. CRIM. P. 3.220(h) (discovery depositions), (d)(1)(B) (providing that the defendant must disclose to the prosecutor data relating to expert testimony, including results of mental examinations). Return to text.

[58] The Eighth Amendment prohibition against cruel and unusual punishment prohibits the execution of the insane. See Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (holding that death penalty is disproportionate punishment for an insane defendant); see also 18 MENTAL & PHYSICAL DISABILITY L. REP. 704, 704 (1994) (stating that "[i]n no circumstances may a court sentence to death a person who, as a result of mental disability, lacks the mental capacity to understand the death penalty and why it is being imposed") (citation omitted). But see Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (stating that mental retardation alone does not preclude a death sentence). Return to text.

[59] Proposed official draft, FLA. R. CRIM. P. 3.220(n), attached as exhibit to The Florida Bar's Emergency Petition To Amend Florida Rule of Criminal Procedure 3.220 (Fla. 1994) (No. 84273). Return to text.

[60] In re Amendments to Florida Rule of Criminal Procedure 3.220, 654 So. 2d 915, 915-16 (Fla. 1995). Return to text.

[61] See, e.g., Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970), cert. den., 401 U.S. 974 (1971). The court stated that

[w]here a defendant in a criminal case serves notice that she will rely upon a defense of insanity and the court . . . orders her to give testimonial response to court-appointed psychiatrists under pain of forfeiting the testimony of her . . . psychiatrist, the defendant's rights to freedom from self-incrimination are not invaded.

Id.; McMunn v. State, 264 So. 2d 868, 870 (Fla. 1st DCA 1972) (stating that "[i]t is well settled in Florida that a defendant who relies on the defense of insanity must cooperate with court-appointed experts by answering questions propounded to him, or in the alternative be precluded from offering his independent expert testimony upon the subject") (citation omitted). Return to text.

[62] 438 U.S. 586 (1978). Return to text.

[63] Id. at 604-06. Return to text.

[64] See infra part V.D. Return to text.

[65] Florida Rule of Criminal Procedure 3.202(e) provides, in pertinent part:

(e) Defendant's Refusal To Cooperate. If the defendant refuses to be examined by or fully cooperate with the state's mental health expert, the court may, in its discretion:
(1) 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
(2) prohibit defense mental health experts from testifying concerning mental health tests, evaluations, or examinations of the defendant.
FLA. R. CRIM. P. 3.202(e). Return to text.

[66] See supra note 55. Return to text.

[67] See In re Amendments to Florida Rule of Criminal Procedure 3.202, 654 So. 2d 915, 915-16 (Fla. 1995). Return to text.

[68] This scenario is based on the fact that Rule 3.202 evolved from two sources: the Florida Supreme Court's decisions in Hickson v. State, 630 So. 2d 172, 176 (Fla. 1993) (setting up guidelines for defendants wishing to rely on the battered-spouse syndrome defense by stating that if such a defendant wishes to present testimony of an expert who has examined her, she must submit to an examination by the State's expert, whose testimony may be used to rebut her expert's testimony; if she decides to have an expert who has not examined her testify only generally about the syndrome or to answer only hypothetical questions, the State cannot have defendant examined by its expert but may present its own expert to testify as to generalities and hypotheticals); and Dillbeck v. State, 643 So. 2d 1027, 1030 (Fla. 1994), cert. denied, 115 S. Ct. 1371 (1995) (applying the Hickson rule to defense presentation of mental health mitigation in the penalty phase of a capital case). Return to text.

[69] 630 So. 2d 172 (Fla. 1993). Return to text.

[70] Id. at 176. Return to text.

[71] Id. Return to text.

[72] Id. Return to text.

[73] Id. at 175. Return to text.

[74] 643 So. 2d 1027 (Fla. 1994), cert. denied, 115 S. Ct. 1371 (1995). Return to text.

[75] Id. at 1031 (stating that a procedure comparable to Hickson would be helpful in capital trials; adopting the Hickson rule as a temporary measure for governing testimony of mental health experts in capital proceedings; and stating that the court had asked the Criminal Procedure Rules Committee of The Florida Bar to submit a proposed permanent rule addressing this issue).

The Criminal Procedure Rules Committee did submit a rule, but the court rejected The Bar's rule because it preferred to adopt its Hickson-like Rule 3.202. See supra part III.C.1. Return to text.

[76] FLA. STAT. § 90.107 (1995). Return to text.

[77] Id. § 90.403. Return to text.

[78] Id. § 90.704. Return to text.

[79] Id. § 90.107. Return to text.

[80] Id. § 90.403. Return to text.

[81] Id. § 90.704. Return to text.

[82] FLA. R. CRIM. P. 3.202. Return to text.

[83] See Bloom v. Illinois, 391 U.S. 194, 197 (1968) (holding that criminal contempt is a "petty offense" if the punishment is limited to six months or less in jail, but ruling that if the punishment is for more than six months, the accused is entitled to a jury trial). Return to text.

[84] Would such advice be proper? Would it subject the attorney to prosecution for contempt and Bar disciplinary sanctions? Such interrogatories open a Pandora's box of difficult constitutional, evidentiary, and practical dilemmas. The court could not force a defendant to reveal what his lawyer told him if that disclosure would incriminate the defendant in a contempt prosecution. U.S. CONST. amend. V. The advice given by counsel to a defendant in this situation may not be subject to compelled disclosure because of attorney-client privilege and the Sixth Amendment right to counsel. See 8 JOHN H. WIGMORE, WIGMORE ON EVIDENCE § 2292, at 554 (McNaughton rev. 1961). Return to text.

[85] See Taylor v. Illinois, 484 U.S. 400, 418 (1988) (stating that, given the attorney-client privilege and the likelihood that extreme cases may involve unscrupulous conduct by client and lawyer, the requirement of an investigation into relative responsibilities of attorney and client, before applying the preclusion sanction, would be impracticable). Return to text.

[86] 742 P.2d 1352 (Ariz. 1987). Return to text.

[87] Id. at 1355. Return to text.

[88] Id. Return to text.

[89] Id. Return to text.

[90] Id. Return to text.

[91] Id. Return to text.

[92] Id. Return to text.

[93] Id. Return to text.

[94] Id. Return to text.

[95] Id. Return to text.

[96] Id. at 1355-56. Return to text.

[97] 459 U.S. 553 (1983). Return to text.

[98] Id. at 555. Return to text.

[99] Id. at 556. Return to text.

[100] Id. at 557. Return to text.

[101] Id. at 561 n.11. Return to text.

[102] Id. at 562 (Justice O'Connor stated, "Since no impermissible coercion is involved when the suspect refuses to submit to the test, regardless of the form of refusal, we prefer to rest our decision on this ground . . . ."). Return to text.

[103] Id. Return to text.

[104] Id. Return to text.

[105] Id. at 562-63. Return to text.

[106] Id. at 563. Return to text.

[107] Id. Return to text.

[108] Id. Return to text.

[109] Susan W. Crump, The Admission of Chemical Test Refusals After State v. Neville: Drunk Drivers Cannot Take the Fifth, 59 N.D. L. REV. 349, 360 (1983). Return to text.

[110] Id.; see also Neville, 459 U.S. at 560 n.10. Return to text.

[111] 526 F.2d 1144 (9th Cir. 1975). Return to text.

[112] Id. at 1145. Return to text.

[113] Id. Return to text.

[114] Id. Return to text.

[115] Id. Return to text.

[116] Id. Return to text.

[117] Id. Return to text.

[118] 834 F.2d 1474 (9th Cir. 1987). Return to text.

[119] Id. at 1484. Return to text.

[120] Id. Return to text.

[121] Id. Return to text.

[122] Id. Return to text.

[123] Id. Return to text.

[124] Id. (citations omitted). Return to text.

[125] Id. at 1484 n.8. Return to text.

[126] South Dakota v. Neville, 459 U.S. 553, 560-61 (1983). Return to text.

[127] Id. at 561-62. Return to text.

[128] See United States v. Byers, 740 F.2d 1104, 1115 (D.C. Cir. 1984) (plurality opinion) (Writing for a six-judge Court, then-Judge Scalia, joined by then-Judges Ginsburg and Bork, stated, "We hold that when a defendant raises the defense of insanity, he may constitutionally be subjected to compulsory examination by court-appointed or government psychiatrists . . . ."). Return to text.

[129] See Walton v. Arizona, 497 U.S. 639, 680 (1990) (Blackmun, J., dissenting). Return to text.

[130] Id. Return to text.

[131] Id. at 639. Return to text.

[132] See Id. at 680 (1990) (Blackmun, J., dissenting) (characterizing majority's holding—that capital defendant must prove mitigating circumstances by a preponderance of the evidence—as misplaced reliance upon noncapital cases upholding the State's right to place upon the defendant the burden of proving an affirmative defense; stating that such decisions rest upon a premise inapplicable in the capital sentencing context). But see id. at 681 (Blackmun, J., dissenting) (criticizing the plurality's comparison of defense mental health mitigation evidence to an affirmative defense). Return to text.

[133] Under the admissibility of scientific evidence test promulgated in Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923), and adopted by the Florida Supreme Court in Stokes v. State, 548 So. 2d 188, 193 (Fla. 1989),

[an] expert's opinion which is based on scientific principle, theory or methodology is admissible only when the underlying scientific principle, theory or methodology is generally accepted in the field in which it belongs. Not only must the evidence be based on a scientific principle, theory or methodology which is scientifically valid, the procedures followed to apply the technique or process must also be generally accepted in the relevant scientific community.
CHARLES EHRHARDT, FLORIDA EVIDENCE § 702.3, at 510-11 (1996 ed.). In following Frye, the Florida Supreme Court has chosen not to apply the more liberal approach set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). Therefore, a challenge to the admissibility of scientific evidence has a greater likelihood of success in Florida than in those states following Daubert. See generally EHRHARDT, supra, §§ 702.3, .4. Return to text.

[134] See section 90.107, Florida Statutes, providing that "[w]hen evidence which is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose is admitted, the court, upon request, shall restrict such evidence to its proper scope and so inform the jury at the time it is admitted." FLA. STAT. § 90.107 (1995). Return to text.

[135] Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
FED. R. EVID. 703; see also Anne A. Epps, Clarifying the Meaning of Federal Rule of Evidence 703, 36 B.C. L. REV. 53, 54 n.11 (1994).

See section 90.704, Florida Statutes, providing 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.
FLA. STAT. § 90.704 (1995). Return to text.

[136] See Epps, supra note 135, at 54. Return to text.

[137] See id. at 55; see also Id. at 54-55 n.11 (citing cases and other scholars). Return to text.

[138] See Id. at 55. Return to text.

[139] See id.; see also id. n.12 (citing cases). Return to text.

[140] Id. at 79 n.112 (citing Emigh v. Consolidated Rail Corp., 710 F. Supp. 608, 611 (W.D. Pa. 1989)); see also infra part V (discussing reliability of evidence as the constitutional benchmark for upholding or reversing trial court admissibility/preclusion decisions). Return to text.

[141] See Epps, supra note 135, at 73 n.90 (citing courts and commentators). Return to text.

[142] See, e.g., Robert R. Calo, Joint Trials, Spillover Prejudice, and the Ineffectiveness of a Bare Limiting Instruction, 9 AM. J. TRIAL ADVOC. 21, 25 (1985); SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES 108-09 (1988); Blumenthal v. United States, 332 U.S. 539, 559-60 (1947); Bruton v. United States, 391 U.S. 123, 135 (1968) (stating that "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored"). Return to text.

[143] See, e.g., Parker v. Randolph, 442 U.S. 62, 73 (1979) (Rehnquist, J.). The Court stated that

[a] crucial assumption underlying [the jury system] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.
Id.; Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) ("Absent . . . extraordinary situations . . . we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions."). Return to text.

[144] Section 90.403 of the Florida Evidence Code provides that "[r]elevant evidence 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." FLA. STAT. § 90.403 (1995). Return to text.

[145] But see supra notes 141-42 and accompanying text (concerning the inefficacy of limiting instructions). Return to text.

[146] See supra part II.C., D., E. Return to text.

[147] See, e.g., Emigh v. Consolidated Rail Corp., 710 F. Supp. 608 (1989), stating,

Although Rule 703 does permit an expert to disclose the underlying facts or data supporting his opinion, he may do so only if he reasonably relied upon those sources; [h]owever, we do not believe that the reasonable reliance requirement permits a court to relinquish its independent responsibilities to determine if the underlying source meets the most minimumstandards of reliability and trustworthiness as a prerequisite to admissibility . . . . When the underlying source is so unreliable as to render it more prejudicial than probative, making it inadmissible under Rule 403, Rule 703 cannot be used as a backdoor to get the evidence before the jury.
Id. at 611-12. Return to text.

[148] See Gacy v. Welborn, 994 F.2d 305, 306-315 (7th Cir. 1993) (in which defendant, accused of killing 33 young men and dumping their bodies under his house, presented his insanity defense through four psychiatrists and two psychologists; the trial judge refused to permit the defendant to use the doctors to transmit to the jury the verbatim statements he made to them; the judge ruled that these statements were hearsay when offered for the truth of the matter asserted; however, the judge did allow the defense doctors to paraphrase the substance of statements for the jury; the Seventh Circuit held that the trial judge had committed no constitutional error). Return to text.

[149] See supra part IV.B.2. Return to text.

[150] See infra part V.D. (discussing, inter alia, Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and the nullification of Mississippi's voucher rule when conflicting with a defendant's Sixth and Fourteenth Amendment rights to present defense evidence). Return to text.

[151] Washington v. Texas, 388 U.S. 14, 18 (1967) (recognizing a defendant's Sixth Amendment right to present a defense as applying to the states through the Due Process Clause of the Fourteenth Amendment). Return to text.

[152] U.S. CONST. amend. VI. Return to text.

[153] 388 U.S. 14 (1967). Return to text.

[154] Id. at 23. Return to text.

[155] See, e.g., Chambers v. Mississippi, 410 U.S. 284, 294, 302 (1973) (stating that "[d]ue process is, in essence, the right to a fair opportunity to defend against the State's accusations . . . . [State evidentiary rules] may not be applied mechanistically to defeat the ends of justice"). Return to text.

[156] Id. at 302. Return to text.

[157] See, e.g., Washington, 388 U.S. at 23 n.21 (referring to exclusion of evidence under testimonial privileges such as attorney-client privilege). Return to text.

[158] The Compulsory Process Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . . ." U.S. CONST. AMEND. VI. Return to text.

[159] 388 U.S. at 18; see also Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (stating that "[o]ur cases establish, at a minimum, that criminal defendants have the right . . . to put before a jury evidence that might influence the determination of guilt"); Craig M. Bradley, Havens, Jenkins, and Salvucci, The Defendant's Right To Testify, 18 AM. CRIM. L. REV. 419 (1981) (outlining history of the Compulsory Process Clause). Return to text.

[160] See Washington, 388 U.S. at 18. Return to text.

[161] United States v. Nobles, 422 U.S. 225 (1975). In Nobles, the defense lawyer's investigator interviewed certain key prosecution witnesses prior to trial. During the trial, defense counsel sought to impeach those prosecution witnesses' in-court testimony by calling the investigator to the stand to testify to certain prior inconsistent statements. After an in-camera hearing excising matters irrelevant to the witnesses' statements, the Nobles court said that the investigator's report had to be given to the prosecution after the investigator's testimony. When defense counsel stated that it did not intend to produce the report, the court ruled that the investigator could not testify about the conversations with the prosecution witnesses. Upholding the preclusion sanction, the United States Supreme Court stated that "one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth." Id. at 241. Return to text.

[162] 484 U.S. 400 (1988). Return to text.

[163] Id. at 403. Return to text.

[164] Id. at 410-16; Lori Ann Irish, Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. CHI. L. REV. 254, 256 (1984) (arguing that use of the preclusion sanction for a violation of alibi notice rules is not a "denial of a constitutional right but merely the consequence of a defendant's failure [timely] to assert the constitutional right [to testify/present an alibi] at the appropriate point in the litigation"). Return to text.

[165] Taylor, 484 U.S. at 414. Return to text.

[166] Id. at 416. Return to text.

[167] Id. at 414. Return to text.

[168] Id. at 415. Return to text.

[169] Id. at 416. Return to text.

[170] Id. Return to text.

[171] Id. Return to text.

[172] Id. at 417. Return to text.

[173] Id. at 415. Return to text.

[174] Id. at 414. Return to text.

[175] Id. at 418. But see Jim Essig, Preclusion: Procedural Efficiency and the Right To Defend, 27 HOUS. L. REV. 327, 393 (1990) (arguing that the use of preclusion in Taylor's case was "especially severe and disproportionate" because there was "no evidence that Ray Taylor participated in his attorney's infraction" and that lesser sanctions, such as fining Taylor's lawyer or instituting disciplinary proceedings, were more appropriate). Return to text.

[176] Taylor, 484 U.S. at 418. Return to text.

[177] Id. Return to text.

[178] Id. Return to text.

[179] Id. at 413. Possible alternative sanctions would include granting a continuance to the State; prohibiting further pretrial discovery for a defendant who fails to give proper notice in listing a witness; permitting comment to the jury on the validity of the surprise witness; criminal sanctions for a willful failure; contempt sanctions against the lawyer; and initiation of disciplinary proceedings against the lawyer. See id.; see also Irish, supra note 164, at 256 (arguing that these sanctions, if applied for a notice of alibi violation, would be ineffective and that the sanction of commenting to the jury on the validity of a surprise alibi is of "doubtful constitutionality"). Return to text.

[180] Taylor, 484 U.S. at 413. Return to text.

[181] See, e.g., Essig, supra note 175, at 394-95 (stating that the Taylor Court's rationale, although based upon the presumptive unreliability of the evidence, was inconsistent with precedent emphasizing the jury's role in deciding credibility of evidence). But see United States v. Cervone, 907 F.2d 332, 346 (2d Cir. 1990) (upholding witness preclusion for a six-month delay in complying with a discovery rule and citing Taylor for the proposition that "procedural rules for [the] adversary process limit [a] defendant's right to present exculpatory evidence"); Chappee v. Vose, 843 F.2d 25, 28 (1st Cir. 1988) (stating that an accused's right to compulsory process may be limited if he has figuratively "thumbed his nose at applicable requirements of pretrial discovery"). Return to text.

[182] See supra part II. Return to text.

[183] See Burns v. State, 609 So. 2d 600, 606 (Fla. 1992) (allowing State expert to remain in courtroom during defense experts' testimony was proper when this was only avenue available for State to offer meaningful expert testimony because defendant was not at that time in Florida required to submit to the State's examination). Return to text.

[184] See supra part II.D. Return to text.

[185] See supra part IV. Return to text.

[186] See Taylor v. Illinois, 484 U.S. 400, 413 (1988). Return to text.

[187] 506 U.S. 390 (1993). Return to text.

[188] Id. at 418. Return to text.

[189] Id. at 417-18. Return to text.

[190] Id. Return to text.

[191] Herrera v. Collins, No. M-92-30 (S.D. Tex. 1990). Return to text.

[192] Herrera v. Collins, 954 F.2d 1029 (5th Cir. 1992). Return to text.

[193] Herrera v. Collins, 506 U.S. 390, 397 (1993). Return to text.

[194] Id. at 393. Return to text.

[195] Id. Return to text.

[196] Id. Return to text.

[197] Id. at 417-18. Return to text.

[198] See Taylor v. Illinois, 484 U.S. 400, 418 (1988). Return to text.

[199] Some argue that this state of the law exists because the United States Supreme Court has yet to hold that there is a constitutional right to raise an insanity defense, and at least one state has abolished the defense. See Parkin v. Florida, 238 So. 2d 817, 822 (Fla. 1970) (stating that there is no constitutional right to plead not guilty by reason of insanity); Leland v. Oregon, 343 U.S. 790 (1952) (upholding an Oregon statute placing the burden of proving insanity beyond a reasonable doubt on the defendant).

Courts have interpreted Leland differently during the past forty years. Compare State v. Byers, 861 P.2d 860, 866 (Mont. 1993) (holding that a state can deny the insanity defense altogether) with California v. Skinner, 704 P.2d 752, 758 (Cal. 1985) (holding that Leland still requires some form of the insanity defense). But see Hayes v. Michigan, 364 N.W. 2d 635, 639 (Mich. 1984) (Marshall, J., dissenting) (stating that "[w]e are also persuaded by the argument that there is no constitutional right to assert an insanity defense"); Powell v. Texas, 392 U.S. 514, 536 (1968) (stating that "[n]othing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms"); Note, The Fifth Amendment and Compelled Psychiatric Examinations: Implications of Estelle v. Smith, 50 GEO. WASH. L. REV. 275, 291 (1982); Stephanie C. Stimpson, State v. Cowan: The Consequences of Montana's Abolition of the Insanity Defense, 55 MONT. L. REV. 503, 517 n.113 (1994).

Even if the insanity defense can be constitutionally abolished, the state must still prove every element of a criminal offense, including intent, beyond a reasonable doubt, and that burden of proof cannot be lessened. See In re Winship, 397 U.S. 358 (1970). But see State ex rel. Green v. Boyd, 355 So. 2d 789 (Fla. 1978) (discussing how some states eliminated the insanity defense in the guilt phase of a criminal trial, yet maintained the State's burden of proof by preserving the defendant's right to present noninsanity lack-of-intent evidence during the guilt phase). Return to text.

[200] 388 U.S. 14 (1967). Return to text.

[201] 483 U.S. 44 (1987). Return to text.

[202] 388 U.S. at 23. Return to text.

[203] 483 U.S. at 56. Return to text.

[204] Washington, 388 U.S. at 16; Rock, 483 U.S. at 53. Return to text.

[205] See U.S. v. Nobles, 422 U.S. 225 (1975). Return to text.

[206] Cobb Interview, supra note 18. Return to text.

[207] Id. Return to text.

[208] Id. Return to text.

[209] See, e.g., FLA. R. CRIM. P. 3.220 (d)(1)(A). Return to text.

[210] Cobb Interview, supra note 18. Return to text.

[211] Id.; see FLA. R. CRIM. P. 3.220(d)(1)(A) (requiring that the defense list only a witness it expects to call to testify at trial.) Return to text.

[212] See FLA. R. CRIM. P. 3.216(c). Return to text.

[213] Cobb Interview, supra note 18; see generally White, infra note 218 (explaining the advantages the defense has in substituting an expert witness in place of the defendant to testify at trial). Return to text.

[214] Cobb Interview, supra note 18. Return to text.

[215] Id. Return to text.

[216] Id. Return to text.

[217] Id. Return to text.

[218] Id. For an example of how this is an advantage for the defense, see Welsh S. White, The Psychiatric Examination and the Fifth Amendment Privilege in Capital Cases, 74 J. CRIM. L. & CRIMINOLOGY 943, 961 (1983). Return to text.

[219] See, e.g., Parkin v. State, 238 So. 2d 817, 821 (Fla. 1970). The court stated that

[i]t is a cornerstone of a workable system of criminal law that every person is presumed sane, and capable of controlling their actions and being held responsible for these actions. Obviously this is only a presumption, and may be overcome. When the presumption of sanity is rebutted, then the state must prove sanity beyond every reasonable doubt, just as it must other elements of the offense.
Id. (citations omitted). Return to text.

[220] Telephone Interview with Mike McMillan, Chief Assistant Public Defender, Clearwater, Fla. (June 8, 1995). Return to text.

[221] See FLA. R. CRIM. P. 3.220(h) (permitting discovery depositions in felony cases). Return to text.

[222] The defendant has a constitutional right to remain silent and cannot be forced to testify at trial. See U.S. CONST. amend. V; FLA. CONST. art. I, § 9; see, e.g., Jones v. State, 289 So. 2d 725, 729 (Fla. 1974). In Jones, an insanity defendant was examined by his doctor, who performed psychological tests on him. Jones, 289 So. 2d at 729. The doctor also received some historical information from the defendant. Id. Prior to the defense doctor's testifying, the State contended that the doctor's testimony was inadmissible because the defendant had not yet taken the stand and testified to what he had told his expert. Id. at 725-26. The trial court agreed with the State. Id. at 728-29. The defendant reluctantly testified and was convicted, but the Supreme Court reversed the trial court and stated, "In order to use the expert opinion of a psychiatrist, a defendant should not be required, as a predicate, to take the stand and abridge his constitutional right against self-incrimination." Id. at 729. Return to text.

[223] Having a state doctor sit in the courtroom and listen to the defense expert's testimony is the common technique used by the prosecution, although it is also acknowledged that having the State's doctor examine the defendant in person would be a much more effective method to prepare for rebuttal. Cobb Interview, supra note 18. Return to text.

[224] Cobb Interview, supra note 18. This rebuttal preparation is inefficient because the defense expert's testimony may, and usually does, omit several pieces of information that could help the prosecution if the information were revealed in court. See 1 ZISKIN & FAUST, supra note 24, at 326-29. Return to text.

[225] See supra part II. Return to text.

[226] See United States v. Byers, 740 F.2d 1104, 1114 (D.C. Cir. 1984). Return to text.

[227] See Id. Return to text.

[228] See id. Return to text.

[229] Cobb Interview, supra note 18. Return to text.

[230] See supra part II.C. (noting the problems with the reliability of mental health testimony). Return to text.

[231] See Byers, 740 F.2d at 1168 (Bazelon, J., dissenting). Judge Bazelon stated that

[t]he same intellectual presuppositions and personal and institutional biases that affect his or her evaluation of the data also affect his or her conscious or unconscious decisions regarding what sort of behavior to notice, remember, and record . . . . And what is left out in that process may cast serious doubt on the validity of the interviewer's conclusions.
Id. (citations omitted). Return to text.

[232] See id. Return to text.

[233] See Id. at 1168 n.184. Return to text.

[234] See supra notes 216-18 and accompanying text. Return to text.

[235] FED. R. CRIM. P. 12.2(c)-(d). Return to text.

[236] Florida Rule of Criminal Procedure 3.216(d) states, in relevant part, that "[o]n the filing of such notice the court may on its own motion, and shall on motion of the state or the defendant, order that the defendant be examined . . . ." FLA. R. CRIM. P. 3.216(d). Return to text.

[237] See, e.g., Lovette v. State, 636 So. 2d 1304, 1308 (Fla. 1994) (stating that the prosecution cannot "elicit specific facts about a crime learned by a confidential expert through an examination of a defendant unless that defendant waives the attorney/client privilege by calling the expert to testify and opens the inquiry to collateral issues"); McMunn v. State, 264 So. 2d 868, 870 (Fla. 1st DCA 1972) (holding that it is reversible error for State to question a court-appointed doctor about a defendant's incriminating statements and stating that "a psychiatrist is not permitted to testify directly as to facts elicited from a defendant during the course of compulsory examination"). But see State v. Whitlow, 210 A.2d 763, 770 (N.J. 1965) (stating that any prejudice from admission of testimony about the facts and circumstances of offense could be cured by limiting instruction); Vardas v. Estelle, 715 F.2d 206, 210 (5th Cir. 1983) (citing United States v. Albright, 388 F.2d 719 (4th Cir. 1968)). The Vardas court stated that where issue is mental incapacity because of sociopathic personality, a complete psychiatric examination necessarily involves discussion of the defendant's participation, if any, in acts charged and past criminal conduct, if any. 715 F.2d at 210. Adequate disclosure of the basis for a medical opinion to the trier of fact would require disclosure of the patient's conversation, including admissions. Id. In other types of cases, a psychiatrist may be able to avoid these sensitive areas and still reach a certain opinion. Id. If the testimony of State experts is offered solely in rebuttal to a defense of insanity and is properly limited to that issue, a defendant's Fifth Amendment rights are not violated. Id. But see supra notes 141-43 (referencing the ineffectiveness of limiting instructions). Return to text.

[238] See, e.g., Minnesota v. Richards, 495 N.W.2d 187, 199 (Minn. 1992) (holding that the "defendant was not denied his constitutional right to due process of law by sanctions precluding his presentation of evidence on the mental illness defense where he refused to cooperate with the psychiatrist appointed to assist him and chose not to comply with discovery rules"); Henry v. State, 574 So. 2d 66, 70 (Fla. 1991) (concluding that the trial judge did not abuse his discretion in striking the defense of insanity upon the defendant's failure to cooperate with [State] psychiatrist); Michigan v. Hayes, 364 N.W.2d 635, 640 (Mich. 1984) (stating that "the preclusion of testimony on the basis of a failure to cooperate is not too harsh a sanction"); Parkin v. State, 238 So. 2d 817, 822 (Fla. 1970), cert. denied, 401 U.S. 974 (1971) (stating that "[t]he defendant's right at trial to offer evidence on the issue of his sanity at the time of the alleged crime is conditioned upon his cooperation during a psychiatric examination on behalf of the prosecution or court"); Bannister v. State, 358 So. 2d 1182, 1184 (Fla. 2d DCA 1978) (stating that "in appropriate circumstances, such as total noncooperation with any psychiatrist save his own, the court may properly refuse to admit any evidence propounded by the defendant relevant to the issue of his sanity") (citing McMunn v. State, 264 So. 2d 868 (Fla. 1st DCA 1972)). Return to text.

[239] A question may arise as to whether the defendant refused the State's exam if, for example, the defendant, during the State's rebuttal exam, answered some, but not all, of the State doctor's questions. See, e.g., State v. Williams, 742 P.2d 1352 (Ariz. 1987) (stating that despite the defendant's uncooperative and evasive responses, he did not "refuse to be examined" and, therefore, was examined and found to be malingering to avoid criminal prosecution; the trial court did not err in allowing the defendant's expert witness to testify on the issue of insanity). Return to text.

[240] See supra notes 50-51 and accompanying text. Return to text.

[241] See, e.g., infra notes 244-53 and accompanying text. Return to text.

[242] See Henry v. State, 574 So. 2d 66, 70 (1991) (reasoning that "[t]he prosecution bears the burden of proving sanity beyond a reasonable doubt. If a defendant seeks to pursue an insanity defense, the State should have an equal opportunity to obtain evidence relevant to that issue"). Return to text.

[243] See, e.g., infra notes 244-53 and accompanying text. Return to text.

[244] 364 N.W.2d 635 (Mich. 1984). Return to text.

[245] Id. at 638 n.3. Return to text.

[246] Id. at 637. Return to text.

[247] Id. at 639 (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Return to text.

[248] Id. at 640. Return to text.

[249] Id. at 639. Return to text.

[250] Id. at 640 (quoting State v. Davis, 639 F.2d 239, 243 (5th Cir. 1986)). Return to text.

[251] Id. Return to text.

[252] Id. Return to text.

[253] Id. at 640-41. Return to text.

[254] Eighth Amendment jurisprudence is the context within which death penalty cases are decided, and the linchpin of that analysis is that death as a punishment is different. See, e.g., Daniel R. Harris, Capital Sentencing After Walton v. Arizona: A Retreat from the "Death Is Different Doctrine," 40 AM. U. L. REV. 1389, 1389 (1991) (stating that "[t]he underlying assumption of modern Eighth Amendment jurisprudence can be summarized simply: death is different"); Kaplan, supra note 15, at 372 (citing Justice Burger's acknowledgement in Lockett v. Ohio that "death is different" and noting that his view was shared, as of 1983, by every Justice other than Justice Rehnquist) (citation omitted). Return to text.

[255] See United States v. Byers, 740 F.2d 1104, 1115 (D.C. Cir. 1984) (stating that "we reject appellant's claim that his privilege against compelled self-incrimination was denied . . . . We hold that when a defendant raises the defense of insanity, he may constitutionally be subjected to compulsory examination by court-appointed or government psychiatrists."). Return to text.

[256] See Estelle v. Smith, 451 U.S. 454, 465, 468 (1981). Return to text.

[257] 643 So. 2d 1027 (Fla. 1994). Return to text.

[258] Id. at 1030. Return to text.

[259] Id. Return to text.

[260] See FLA. STAT. § 921.142(2) (1995) (addressing what information is admissible in the penalty-phase sentencing hearing and providing that "[a]ny such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements"). Return to text.

[261] Parkin v. State, 238 So. 2d 817, 821 (Fla. 1970) (stating that "[l]ike the decision to testify in one's behalf and risk incrimination during cross-examination, the decision to plead insanity and tender proof is not a pathway without stones"). Return to text.

[262] See Walton v. Arizona, 497 U.S. 639, 669 (Scalia, J., concurring) (stating that "[t]hose executions that have been carried out have occurred an average of eight years after the commission of the capital crime"). Return to text.

[263] See supra notes 51, 61 and accompanying text. Return to text.

[264] See supra notes 51, 61 and accompanying text. Return to text.

[265] See Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring); Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. REV. 1147, 1151 (1991). Return to text.

[266] Furman, 408 U.S. at 309 (Stewart, J., concurring). Return to text.

[267] Louis D. Bilionis, Moral Appropriateness, Capital Punishment, and the Lockett Doctrine, 82 J. CRIM. L. & CRIMINOLOGY 283, n.15 (1991). Return to text.

[268] See Harris, supra note 254, at 1394. Return to text.

[269] See, e.g., Furman, 408 U.S. at 308-309 (Stewart, J., concurring). Return to text.

[270] See Joshua N. Sondheimer, Note, A Continuing Source of Aggravation: The Improper Consideration of Mitigating Factors in Death Penalty Sentencing, 41 HASTINGS L.J. 409, 413 (1990) (referring to pre- Furman discrimination by capital sentencers against nonwhite defendants); Samuel R. Gross, Race & Death: The Judicial Evaluation of Evidence of Discrimination in Capital Sentencing, 18 U.C. DAVIS L. REV. 1275, 1282-84 (1985). Return to text.

[271] 408 U.S. 238 (1972). Return to text.

[272] Harris, supra note 254, at 1390. Return to text.

[273] 329 U.S. 294 (1955); see generally Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 WASH. & LEE L. REV. 281 (1990); Sundby, supra note 265. Return to text.

[274] See Harris, supra note 254, at 1396. Return to text.

[275] See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (stating that "[w]hile Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice"); see also Harris, supra note 254, at 1389. Return to text.

[276] See Sundby, supra note 265, at 1151. Return to text.

[277] See id. at 1157-59; Harris, supra note 254, at 1403-05. Return to text.

[278] See Sundby, supra note 265, at 1160; Eddings v. Oklahoma, 455 U.S. 104, 113-15 (1982) (reversing death sentence because a defendant's youth and mental problems were not thought to be explicitly covered by the State's death penalty law). Return to text.

[279] 428 U.S. 280 (1976). Return to text.

[280] Id. at 305.

The penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
Id. (citation omitted). Return to text.

[281] 438 U.S. 586 (1978). Return to text.

[282] Id. at 604 (concluding that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death"); see Sundby, supra note 265, at 1190. Unlike insanity cases, normal evidentiary rules are loosened in penalty phase proceedings. See, e.g., FLA. STAT. § 921.141(1) (1995) (stating that, regarding admissibility of evidence in the penalty phase, "any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is provided a fair opportunity to rebut any hearsay statements"); see also Kelly, supra note 9, at 411. Return to text.

[283] See Chambers v. Mississippi, 410 U.S. 284 (1973); Green v. Georgia, 442 U.S. 95 (1979). Return to text.

[284] 410 U.S. 284 (1973) Return to text.

[285] Id. at 289. Return to text.

[286] Id. at 300. Return to text.

[287] Id. at 291. Return to text.

[288] Id. at 289. Return to text.

[289] Id. at 291. Return to text.

[290] Id. Return to text.

[291] Id. Return to text.

[292] Id. at 294. Return to text.

[293] Id. at 302. Return to text.

[294] Id. Return to text.

[295] Id. Return to text.

[296] Id. at 300-01. Return to text.

[297] 442 U.S. 95 (1979). Return to text.

[298] Id. at 96. Return to text.

[299] Id. Return to text.

[300] Id. Return to text.

[301] Id. at 95. Return to text.

[302] Id. at 97. Return to text.

[303] Id. Return to text.

[304] Id. Return to text.

[305] Id. Return to text.

[306] Id.; see also supra note 295; McKoy v. North Carolina, 494 U.S. 433, 441 (1990) (stating that relevant mitigating evidence could not be excluded by applying a "standard of proof intended to ensure the reliability of mitigating evidence"). Return to text.

[307] Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Return to text.

[308] Green v. Georgia, 442 U.S. 95, 97 (1979). Return to text.

[309] Id. at 96. The Green Court stated that

Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence . . . . Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it.
Id. (citation omitted). Return to text.

[310] Id. Return to text.

[311] See Chambers, 410 U.S. at 289; Green, 442 U.S. at 96. Return to text.

[312] 770 F.2d 918, 937-38 (11th Cir. 1985) Return to text.

[313] Id. Return to text.

[314] Id. Return to text.

[315] Id. Return to text.

[316] Id. However, the Martin court did note that the "records would have been merely cumulative evidence on the subject of Martin's mental condition, a subject already explored in great detail throughout the trial. Furthermore, Dr. Vaughn, as Martin's psychiatrist, could have testified about the antipsychotic medication." Id. The Martin court addressed the constitutional issue of preclusion by stating that "[e]ven assuming the jail records should have been admitted at trial, however, such error hardly was of constitutional dimension." Id. The court quoted Dickson v. Wainwright, which stated that "[a]n evidentiary error does not justify habeas relief unless the violation results in a denial of fundamental fairness." Id. (citation omitted). Martin could have gotten the records he wanted into evidence, but only on the condition that he put all of the records in, both pro and con, because, as the Martin court stated, if he did not put all his records in, the jury would be misled. Likewise, a capital defendant can get his mental health mitigation evidence before the sentencing jury, but he must present all the potentially available evidence. He cannot put on the testimony of his experts that is based on their examination, testing, or evaluation of him and refuse to submit to the State's reciprocal examination. Such testimony would be unreliable and would mislead the jury. However, can the defendant complain of a denial of fundamental fairness? Did not his own willful act of refusing the State's examination (which examination is the State's equivalent of being able to cross-examine the defendant) put him in the very predicament of which he now complains? Return to text.

[317] The "a priori" determination of the presumptive unreliability of whole classes of evidence is constitutionally prohibited. See, e.g., Washington v. Texas, 388 U.S. 14 (1967). In Washington, the defendant was charged with a murder in which another man, Fuller, had participated. Id. at 15. Fuller was convicted at a separate trial. Id. at 16. Washington tried to call Fuller to testify at his trial. Fuller would have testified that Washington tried to get Fuller to leave the scene and that Washington left the scene before Fuller fired the fatal shot. Id. Fuller's testimony was excluded under a statute that prohibited any co-participant from testifying on behalf of his co-participant. Id. at 17. The rule was purportedly premised on the fact that accomplices would be inclined to lie in order to get each other acquitted. Id. at 21. Return to text.

[318] See, e.g., Dutton v. Brown, 812 F.2d 593, 601 (10th Cir. 1987). The court held that it was error to exclude mitigating evidence offered through defendant's mother based on the mother's violation of a sequestration order, and stated that

[a]ssuming the exclusion order properly applied to the sentencing proceeding, the trial court had the discretion to select means other than the exclusion of Mrs. Dutton's testimony to enforce the sequestration order. For example, it could have allowed Mrs. Dutton to testify and then instructed the jury that she was present during the guilt proceeding. That approach would have permitted the jury to assess the witness's credibility while, at the same time, it would have allowed the petitioner to present crucial mitigating evidence.
Id. Return to text.

[319] 845 F.2d 610 (6th Cir. 1986). Return to text.

[320] Id. at 613. Under Ohio Rule of Evidence 804(B)(1), Allen was required to prove that the absent witness was "unavailable" for trial. To satisfy his burden of proving the witness's unavailability, Allen's trial counsel subpoenaed the witness's probation officer as a defense witness. The trial court stated that defense counsel had the burden of implementing independent efforts to locate the witness. Counsel advised the court of no independent efforts other than issuing an "address unknown" subpoena for the witness to appear at trial. The court concluded that defense counsel's efforts were insufficient to demonstrate the witness's unavailability and excluded the transcript of his previous testimony. Id. Return to text.

[321] Id. at 615. Return to text.

[322] Id. Return to text.

[323] Id. at 616. Return to text.

[324] Id. (stating that "[i]n other words, the defendants in Chambers and Green were denied the opportunity to present exculpatory evidence, while the defendant in Allen was not"). Return to text.

[325] See, e.g., Sundby, supra note 265, at 1193. Professor Sundby suggests that a state court's procedural/evidentiary rules should not exclude relevant defense mitigation from the jury; that the jury should hear such defense mitigation first and then the court, through its instructions, can tell the jury to reject such evidence. Id. In other words, Professor Sundby may be suggesting that a sentencing jury should hear from the defendant's experts who have examined him on the issue of mitigation, even if that defendant has refused the State's reciprocal examination. Based on this suggestion from Professor Sundby's article, the court could give a limiting instruction, but it could not totally exclude the evidence. Professor Sundby, however, could not be suggesting that contrary to Chambers, Green, and their progeny, a penalty-phase jury must hear evidence of questionable reliability, albeit given with an inefficacious evidence-of-refusal instruction, which testimony is unexposed to effective cross-examination by the State and which evidence is made all the more unreliable by the willful refusal of the accused to make the evidence trustworthy by submitting to the State's rebuttal examination. Return to text.

[326] Lockett v. Ohio, 438 U.S. 586, 606 (1978) (concluding that the Eighth and Fourteenth amendments require a sentencer to consider as a mitigating factor any aspect of a defendant's character or record, or any circumstance of his offense that the defendant proffers as basis for a sentence less than death). Return to text.