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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CF-81
MALIK BILAL, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF1-11967-14)
(Hon. Milton C. Lee, Trial Judge)
(Argued November 20, 2018 Decided October 15, 2020)
James Whitehead, Public Defender Service, with whom Samia Fam, Mikel- Meredith Weidman, Daniel S. Harawa, and Fleming Terrell, Public Defender Service, were on the brief, for appellant.
Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time, and Elizabeth Trosman, Nicholas P. Coleman, Glenn Kirschner, and Katherine Earnest, Assistant United States Attorneys, were on the brief, for appellee.
Before THOMPSON and BECKWITH, Associate Judges, and RUIZ, Senior Judge. Opinion for the court by Associate Judge THOMPSON. Concurring opinion by Senior Judge RUIZ at page 30. 2
THOMPSON, Associate Judge: After a jury trial, appellant Malik Bilal was
found guilty of second-degree murder while armed and carrying a dangerous
weapon outside the home or place of business. Appellant asserts that the trial court
“misconceived the requirements of [Super. Ct. Crim.] Rule 12.2(c),” infringed
upon his Fifth Amendment privilege, abused discretion, and prevented him from
presenting a complete defense when it ruled that he must submit to a mental
examination by a government expert as a condition of introducing his own expert’s
testimony about his claimed post-traumatic stress disorder (“PTSD”). We affirm.
I.
The Evidence at Trial
The evidence at trial established that appellant stabbed his co-worker Alonzo
“Reds” Beasley with a pocket knife. Arnitta Cowser, another co-worker, testified
that after appellant told Beasley not to touch appellant’s truck and Beasley reached
into the truck to retrieve a thermos despite appellant’s order, appellant started
pushing, shoving, and hitting Beasley. According to Cowser, Beasley, who had
nothing in his hands, backed away, but appellant continued swinging “stead[il]y
[and] coming at” Beasley; Cowser eventually saw appellant stab Beasley in the
neck and saw Beasley fall, with blood coming “from everywhere.” Deneira 3
Owens, who was in the area at the time, did not see the entire incident but did see a
man whose skin had a reddish tone (Beasley) running away from a man who fit
appellant’s description, and then saw that second man make a punching or
thrusting motion toward the first man’s torso and saw the first man fall to the
ground. Owens testified that while the punching motion was occurring, the first
man had his hands up and was saying, “Don’t do this.” Danyell Adams also saw a
portion of the altercation and testified that the man who “passed away” was being
chased by the other man. Adams heard the man who was swinging the knife and
chasing the other man say, in “[a]n aggressive angry tone” as he was walking back
to his truck, “I told him not to touch my truck.” Beasley sustained six stab wounds
and bled to death from his injuries.
Appellant testified that Beasley was very “aggressive” and angry towards
him on the job, saying things such as, “I’ll kill your ass” and “talk[ing] about how
he had put in work with his gun before” (i.e., had victimized people with his gun).
Appellant testified that Beasley’s statements made him feel “threatened” and
“fearful,” so much so that he carried a pocketknife for protection. Appellant told
the jury that on the day of the incident, he saw Beasley jerking on his waistband as
he was insulting appellant, and that he (appellant) was “a hundred percent sure”
that Beasley had a gun, was “brandishing” it, and would take it out and shoot 4
appellant if appellant did anything to provoke him. Appellant testified that he told
Beasley to leave him alone and to get away from his truck, but that Beasley instead
swung and hit appellant in the face. A fight between the two men ensued, with
Beasley saying that he would kill appellant. At one point, Beasley turned his body,
and appellant believed he was reaching for his gun, so appellant panicked, pulled
out his knife, and started swinging. Appellant told the jury that it was after he was
arrested (two days later) that he learned that Beasley had died. Appellant further
testified that he believed that if he had not swung the knife, Beasley would have
shot and killed him. Police did not recover a gun from the scene.
II.
Appellant’s Proposed Expert Testimony and the Trial Court’s Ruling on the Government’s Motion to Compel a Mental Examination by the Government’s Expert
On February 25, 2016, prior to trial and pursuant to Super. Ct. Crim. R. 16
(b)(1)(C)(ii), the defense filed a notice of its intention to present expert testimony
from psychologist Dr. Nicole Rafanello. Appellant’s original proffer was that Dr.
Rafanello would testify “based on an evaluation of Mr. Bilal over the course of
several meetings with him” (which included “testing of Mr. Bilal using several
diagnostic tests”) and on a review of his records, and would specifically testify that
appellant “is diagnosed with, and has long suffered from, post-traumatic stress 5
syndrome (PTSD) and complex trauma, and was suffering from these conditions at
the time of the incident in this case.” The notice further stated that Dr. Rafanello
would testify about how appellant’s conditions “impact a person’s perceptions and
behaviors, particularly in threatening or violent situations.” The notice stated in
addition that Dr. Rafanello would testify that appellant “was experiencing these
symptoms [of PTSD and complex trauma] prior to and through the time period
when the incident in this case happened[,]” and “experienced heightened fear of
being assaulted and injured, such as . . . reacting strongly to perceived threats of
violence.” Appellant later told the court in a filing that “Dr. Rafanello did not
speak with Mr. Bilal about the facts and circumstances of the incident in this case,
and will offer no testimony or opinion about the incident in this case.”
The government filed a motion to preclude Dr. Rafanello’s testimony,
arguing inter alia that appellant was improperly seeking to introduce expert
testimony to support inadmissible diminished-capacity evidence under the guise of
a self-defense claim. The defense responded that Dr. Rafanello’s testimony would
not be in support of a diminished-capacity defense, but would be relevant to
appellant’s perceptions at the time of the incident and to the credibility of his claim
of self-defense — specifically, as to whether he “actually . . . believed [the] force
[he used] to be necessary to avoid his own serious bodily harm.” 6
On March 25, 2016, the court heard argument on the government’s motion
and ruled that the proffered expert testimony would be permitted if the evidence at
trial were to support a self-defense claim. Upon that ruling, the prosecutor asked
the court “to permit the [g]overnment to obtain its own expert and . . . for Mr. Bilal
to be subject to examination” by that expert. The defense objected, and the court
said that it would defer ruling until the parties’ next appearance in court.
On March 28, 2016, at the next hearing, the court asked the prosecutor
whether it would “be enough . . . for [the government] to just engage [its] own
expert to help [the prosecutor] cross-examine [the defense] expert.” The
prosecutor responded in the negative. Defense counsel told the court that if the
court were to allow a government expert to evaluate appellant, the defense “might
opt to go a completely different direction with this and withdraw the notice to call
Dr. Rafanello” and choose “another way of going about presenting [the PTSD]
evidence,” i.e., have the expert “testif[y] just in general about what the condition is
. . . not having evaluated the individual but testifying to what the condition is, the
symptoms, how it works and the like, and then the jury is free to assess it.” The
court again deferred its ruling, requesting additional briefing on whether it should
compel appellant to submit to a mental examination by a government expert as a 7
condition of admitting the defense expert testimony. The court said that this was
“unchartered territory” 1 and that it would try to “do a balance” and “arrive at the
right answer for everybody.”
After the parties filed briefs, 2 and after a hearing on June 3, 2016, the trial
court issued a written order on August 5, 2016, granting the government
permission to examine appellant through its own expert. The court reasoned that
Super. Ct. Crim. R. 12.2 “is specifically designed to address th[e] situation”
presented in this case, i.e., where “the defense will . . . ask the jury to consider
whether as a result of a mental health condition[,] the Defendant had a subjective
belief of an imminent danger of bodily harm such that he should not be held
accountable for . . . [m]urder.” The court found that where the defense will present
expert testimony concerning the defendant’s mental health condition, Rule 12.2(c)
“provide[s] the trial court with the authority to order the defendant to submit to
‘mental examinations by a psychiatrist or other expert.’” The court found that it
“seem[ed] only fair and proper” “[i]n this instance” to give a government expert
1 The court may actually have said or meant “uncharted territory.” 2 Appellant argued that there was no constitutional, statutory, or case-law authority for the court to compel him to be examined by a government expert, that Rule 12.2 applies only to insanity defenses, and that granting the government’s request would violate appellant’s Fifth Amendment rights by requiring him to be a witness against himself. 8
the opportunity to examine appellant “so that the government could be on equal
footing in its effort to meet the force of the defense expert evidence.” The court
ruled that the government expert would be permitted to explore whether appellant
was “appropriately diagnosed” with PTSD, but would “not be permitted to inquire
as to the facts and circumstances surrounding the offense.” 3
On August 15, 2016, withdrawing his earlier notice, appellant filed a notice
stating that he would not present evidence of Dr. Rafanello’s evaluation of him or
her conclusions as to his diagnosis, and that he would not submit to an evaluation
by a government expert. Instead, the defense expert would be called to testify
“about PTSD and complex trauma generally” and how these conditions may affect
an individual. At a hearing on October 19, 2016, the trial court ruled that it would
permit appellant to present the revised expert testimony — without having to
submit to an examination by a government expert — so long as he laid a proper
factual foundation, i.e., something “in the record that supports the notion that Mr.
3 The court also ordered the defense to disclose to the government “all underlying data used by the defense expert including, but not limited to, Dr. Rafanello’s report, notes, raw data, testing protocols, and any other materials generated by Dr. Rafanello during her interview, records demonstrating that Defendant was previously diagnosed with PTSD and complex trauma, records from before this case revealing Defendant’s experiences of trauma and violence leading to his diagnosis, and any other material relied on by the expert in reaching her conclusion.” 9
Bilal could be suffering from this[.]” Ultimately, appellant chose not to present an
expert on PTSD, stating that “the defense is opting not to present that evidence . . .
[g]iven the way the trial has gone.”
Appellant now argues that the trial court erred “by reflexively ordering a
compelled examination pursuant to Rule 12.2,” in an effort to put the parties on
equal footing, “when there was no indication that the government needed the
examination to rebut the proffered PTSD expert evidence.” Appellant emphasizes
that because Rule 12.2 “limits a court’s authority to order a mental examination to
‘appropriate cases,’” it necessarily implies that not every case in which the
defendant gives notice under Rule 12.2(b) will be appropriate for a compelled
examination, and does not authorize the court to order a mental examination by the
government’s expert solely on the ground that this “seems fair.” Appellant further
asserts that the trial court was obligated to, but failed to, engage in a fact-specific
analysis to determine whether the government needed its own evaluation of him.
Appellant argues that an inquiry would have shown that the government had “more
than enough time, material, and access to both Mr. Bilal [through cross-
examination 4] and the defense expert to prepare for trial,” and he contends that
4 Appellant states that the court ruled that before the defense expert could testify, appellant would have to take the stand and face cross-examination. Such a (continued…) 10
“the government did not proffer a single reason why it needed the evaluation to
meet the defense expert evidence.” Appellant asserts that the court’s ruling “led to
the exclusion of the critical PTSD evidence” on a central component of his self-
defense claim (“whether he subjectively believed that he was in imminent
danger”); severely hampered his defense; and entitles him to reversal of his
convictions, because the error was not harmless beyond a reasonable doubt.
III.
Analysis
A. The trial court had inherent authority to order a mental examination.
In the trial court, appellant argued that Rule 12.2 does not supply authority
for the Superior Court to compel a mental examination when the defendant is not
asserting an insanity defense, and that there is no other authority in rule, statute or
case law for the court to do so. On appeal, appellant appears to have abandoned
(…continued) requirement would be a blatant violation of appellant’s rights under the Fifth Amendment. But the record shows that no such violation happened in this case because the court ruled only that a foundation had to be laid for the relevance of the defense expert’s PTSD testimony. The court couched its comments in terms of “should [the defendant] testify at trial.” As described above, appellant did take the stand to testify that he acted in self-defense. 11
his blanket no-authority argument. He acknowledges case authority that the trial
court may order such an examination pursuant to its inherent authority. However,
he asserts that the court must exercise that authority with restraint, based on the
particular circumstances of the case before it. As to Rule 12.2, he emphasizes that
the Rule limits the trial court’s authority to order a mental examination to
“appropriate cases.” He asserts that here, the trial court was improperly focused on
what “seem[ed] fair” and failed to conduct a fact-specific inquiry to determine
whether the government needed its own examination of him (which, he contends, it
did not).
Appellant’s acknowledgment that the Superior Court has inherent authority
to order a defendant to submit to a mental examination is well-founded. See Rural
Hicks-Bey v. United States, 649 A.2d 569, 575 (D.C. 1994) (“[T]he trial court has
inherent authority, unless otherwise specifically precluded, to control the conduct
of the proceedings before it, in order to ensure . . . that all parties are treated fairly,
and that justice is done.”); United States v. McSherry, 226 F.3d 153, 157 (2d Cir.
2000) (“[I]t was a reasonable exercise of inherent power to condition the
defendant’s use of expert opinion testimony upon his examination by prosecution
experts, who could then testify as to their own observations and evaluations.”);
United States v. Webster, 162 F.3d 308, 339 (5th Cir. 1998) (holding that the 12
district court had inherent authority to compel the defendant “to submit to a mental
health exam by a government expert as a prerequisite to introducing his own expert
psychiatric testimony”; explaining that “[b]efore the enactment in 1974 of Fed. R.
Crim. P. 12.2, which establishes the procedures governing psychiatric exams at
trial, numerous courts had recognized the existence of inherent judicial authority to
order a defendant to give the government notice of a psychiatric defense and to
submit to examination by a government expert”; noting that the Fifth Circuit, too,
in other circumstances had found “inherent power to compel a psychological
examination of a criminal defendant.”); United States v. Davis, 93 F.3d 1286, 1295
(6th Cir. 1996) (court has “inherent authority to order a reasonable, noncustodial
examination of a defendant under appropriate circumstances”). 5
Appellant is also correct that a trial court must exercise its inherent authority
with restraint, using it only as “a reasonable response to the problems and needs
5 See also Super. Ct. Crim. R. 57(b) (“the court may regulate practice in any manner consistent with applicable law and these rules”); United States v. White, 21 F. Supp. 2d 1197, 1198, 1198 n.2, 1200 (E.D. Cal. 1998) (holding that court may use its “supervisory power” [the term the court used for “inherent authority” in criminal matters] under Fed. R. Crim. P. 57(b) to compel a mental examination in a case where defendant sought to use her psychiatric expert’s examination findings to support a diminished capacity defense, reasoning that “fundamental fairness” and “judicial common sense” require that the government “be able to follow where the defendant has led” (brackets and internal quotation marks omitted)). 13
that provoke it.” Degen v. United States, 517 U.S. 820, 823-24 (1996). Further,
courts have recognized that in exercising inherent authority, a trial court should
fashion its order to comply with the relevant procedural rule (here, Rule 12.2).
See, e.g., United States v. Richter, 488 F.2d 170, 173-74 (9th Cir. 1973)
(recognizing that when exercising its inherent authority, a court should look to the
relevant procedural rule for guidance).
B. The advisory committee notes to Fed. R. Crim. P. 12.2 clarify what is an “appropriate case” in which to order a mental examination to rebut defense expert testimony about a defendant’s mental condition bearing on guilt.
Super. Ct. Crim. R. 12.2(b) provides that the defense must give notice to the
government if the “defendant intends to introduce expert evidence relating to a
mental disease or defect or any other mental condition of the defendant bearing on
the issue of guilt[.]” Under Rule 12.2(c)(1) as in effect at the time of appellant’s
trial (and currently), “[i]n an appropriate case the court may, upon motion of the
prosecutor or upon its own initiative, order the defendant to submit to one or more
mental examinations by a psychiatrist or other expert designated for this purpose in
the order of the court.” 6 Appellant argues that an “appropriate case” within the
6 As the government’s brief notes, appellant relies on a number of pre-2002 cases in which courts held that then-Fed. R. Crim. P. 12.2(c) did not encompass (continued…) 14
meaning of Rule 12.2(c) “is one where the examination is necessary for the
government’s effective ‘pretrial preparation,’” a circumstance that appellant
contends was not satisfied in this case. “The correct interpretation and application
of Rule [12.2] . . . is a legal question which we review de novo.” Ferguson v.
United States, 866 A.2d 54, 59 (D.C. 2005).
We are not persuaded that the interpretation appellant urges is what is meant
by the term “appropriate case” in Rule 12.2(c)(1). “When interpreting a Superior
Court rule, we frequently find guidance in the advisory committee’s notes to the
corresponding federal rule.” District of Columbia v. Jackson, 878 A.2d 489, 492
(D.C. 2005). 7 That guidance is especially pertinent here, as appellant has
acknowledged that this jurisdiction’s Rule 12.2 “is based on the original federal
rule 12.2.”
(…continued) compelling a defendant who was not asserting an insanity or competency defense to submit to a mental examination. However, the federal rule was amended in 2002 to clarify that it encompasses a mental examination for a defendant who has indicated an intention to raise a defense of mental condition bearing on the issue of guilt. Fed. R. Crim. P. 12.2 advisory committee’s notes on the 2002 amendments. 7 In addition, “[w]hen one of our procedural rules is nearly identical to or the functional equivalent of a federal procedural rule, we look to cases interpreting the federal rule for guidance on how to interpret our own.” Estate of Patterson v. Sharek, 924 A.2d 1005, 1009–1010 (D.C. 2007). 15
The phrase “in an appropriate case” appeared in the original federal rule in
1975, upon enactment of Public Law 94-64. See 89 Stat. 370, 373 (July 31, 1975)
(“In an appropriate case the court may, upon motion of the attorney for the
government, order the defendant to submit to a psychiatric examination by a
psychiatrist designated for this purpose in the order of the court.”). The advisory
committee notes to Fed. R. Crim. P. 12.2 that pertain to the 1975 enactment
address what was meant by the reference to “appropriate cases”:
The Committee notes that the rule does not attempt to resolve the issue whether the court can constitutionally compel a defendant to undergo a psychiatric examination when the defendant is unwilling to undergo one. The provisions of subdivision (c) are qualified by the phrase, “In an appropriate case.” If the court cannot constitutionally compel an unwilling defendant to undergo a psychiatric examination, then the provisions of subdivision (c) are inapplicable in every instance where the defendant is unwilling to undergo a court-ordered psychiatric examination. The Committee, by its approval of subdivision (c), intends to take no stand whatever on the constitutional question.
Advisory Committee notes on the 1975 enactment; see also United States v. Davis,
93 F.3d 1286, 1295 (6th Cir. 1996) (holding that “it [is] unlikely that the Supreme
Court or Congress intended the first sentence of Rule 12.2(c) to resolve, sub
silentio, the Fifth Amendment concerns arising from a compelled, custodial pretrial
examination of a criminal defendant concerning her or his mental state at the time
of the alleged offense[.]”). As the note expressly states, if there is a constitutional 16
bar to a compelled examination, the “appropriate case” standard will not be met.
In sum, as the Advisory Committee understood original Fed. R. Crim. P. 12.2(c),
its reference to an “appropriate case” is a reference to a case in which the court
“may,” consistent with the Fifth Amendment, compel an unwilling defendant to
submit to a psychiatric examination by a government expert.
C. This was an “appropriate case” in which to order a mental examination.
“The Fifth Amendment guarantees that ‘[n]o person . . . shall be compelled
in any criminal case to be a witness against himself . . . .’” Kansas v. Cheever, 571
U.S. 87, 93 (2013). The Supreme Court held in Estelle v. Smith, 451 U.S. 454
(1981), that presentation of the defendant’s statements made in the course of a
court-ordered psychiatric examination violates the defendant’s Fifth Amendment
rights when the defendant has neither initiated the examination nor put his mental
capacity in dispute at trial. See id. at 468. Conversely, in Cheever, the Supreme
Court held that the Fifth Amendment does not prohibit the government from
introducing evidence from a court-ordered mental evaluation of a criminal
defendant to rebut that defendant’s presentation of expert testimony in support of a
mental-status-based defense (in Cheever, voluntary intoxication). 571 U.S. at 89–
90; see also id. at 98 (“We hold that where a defense expert who has examined the
defendant testifies that the defendant lacked the requisite mental state to commit a 17
crime, the prosecution may offer evidence from a court-ordered psychological
examination for the limited purpose of rebutting the defendant’s evidence.”). The
Court reasoned that “[w]hen a defendant presents evidence through a
psychological expert who has examined him, the government likewise is permitted
to use the only effective means of challenging that evidence: testimony from an
expert who has also examined him.” Id. at 94.
In Cheever, the examination by a government expert had already occurred in
connection with an eventually aborted federal trial; 8 the narrow issue before the
Court was whether, during a subsequent state prosecution, the testimony of the
government expert could be admitted consistent with the Fifth Amendment. The
Court did not specifically consider the validity of the order that, in an earlier case,
compelled Mr. Cheever to submit to an examination by the government’s expert.
Thus, Cheever did not resolve the precise issue presented here: whether, consistent
with the Fifth Amendment, a trial court may compel the defendant to submit to an
8 Mr. Cheever filed a notice under Rule 12.2 that he intended to introduce expert evidence relating to his intoxication by methamphetamine at the time of the charged offense, “which negated his ability to form specific intent, e.g., malice aforethought, premeditation and deliberation.” Id. at 90–91. The district court ordered him to submit to a psychiatric evaluation by a forensic psychiatrist, to assess how methamphetamine use had affected him when he shot his victim. Id. at 91. The forensic psychiatrist “interviewed Cheever for roughly 5 1/2 hours.” Id. 18
examination by a government mental health expert after the defense has given
notice of its intent to introduce expert evidence relating to a mental condition of
the defendant bearing on the issue of guilt.
Nevertheless, courts have relied on Cheever as a basis for rejecting
arguments that a trial court violates the defendant’s Fifth Amendment rights by
refusing to let a defense mental health expert testify about the defendant’s mental
condition unless the defendant submits to an examination by a government mental
health expert. See, e.g., Hernandez v. Davis, 750 F. App’x 378, 383 (5th Cir.
2018) (denying a certificate of appealability on Mr. Hernandez’s claim that the
state trial court violated his Fifth Amendment rights “by refusing to allow his
mental-health expert . . . to testify on Hernandez’s diminished mental capacity
unless he first submitted to an examination performed by the State’s mental-health
expert”). The Hernandez court said the following about what Cheever implies
regarding compelled mental examinations:
It is well established that when a criminal defendant “neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence,” his right against self-incrimination under the Fifth Amendment protects him from a compulsory examination by a hostile psychiatrist. . . . But when “a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him.” Kansas v. 19
Cheever, 571 U.S. [at 94] . . . In other words, by relying on the testimony of a mental-health expert who has examined him, the defendant waives his Fifth Amendment privilege. Nonetheless, the scope of that waiver is “limited to the issue raised by the defense,” and any testimony about the court-ordered psychiatric evaluation cannot go beyond this limited rebuttal purpose.
Hernandez, 750 F. App’x at 383 (emphasis added). The gravamen of the
Hernandez court’s analysis is that, following from Cheever, there is no Fifth
Amendment bar against a compelled mental examination of the defendant if the
defendant will rely on testimony of a mental health expert who has examined him,
and the compelled examination will be limited to the issue(s) raised by the defense.
See also United States v. Maxton, No. 13-cr-00411-PAB, 2014 U.S. Dist. LEXIS
197096, *1-2 (D. Colo. 2014) (relying on Cheever and Fed. R. Crim. P. 12.2(c) as
authority for issuance of an order authorizing the government to conduct an
examination of the defendant regarding the issue of defendant’s claimed
diminished capacity at the time of the alleged crimes, as indicated in the defense’s
Fed. R. Crim. P. 12.2(b) notice).
Both Cheever and the other cases cited above involved defense expert
testimony to the effect that the defendant’s mental condition negated his ability to
form the mens rea required for conviction. However, federal courts have relied on
the advisory committee notes to Fed. R. Crim. P. 12.2 as amended in 1983 to 20
conclude that a Rule 12.2(c) order compelling a mental examination in response to
a Rule 12.2(b) notice is authorized even when the defense to be asserted through
the defendant’s expert pertains not to mens rea capacity, but to some other mental
status that bears on guilt. See, e.g., United States v. Lewis, 53 F.3d 29, 35 n.9 (4th
Cir. 1995) (finding no error in district court order requiring Lewis to undergo a
psychological examination in light of his notice that, as part of his entrapment
defense, he intended to rely on expert testimony to show that he had a sub-normal
level of intelligence); United States v. Vega-Penarete, 137 F.R.D. 233, 235
(E.D.N.C. 1991) (concluding that Fed. R. Crim. P. 12.2(c) encompasses order that
defendant be examined by a government mental health expert to enable the
government to respond to defense expert who examined defendant with respect to
her Battered Wife Syndrome); see also Rule 12.2, Fed. R. Crim. P., advisory
committee notes (“[E]xpert testimony about the defendant’s mental condition may
be tendered in a wide variety of circumstances well beyond . . . where a
psychiatrist testifies for the defendant regarding his diminished capacity”; noting
that the rule was expanded to cover, for example, the situation where the defendant
gives notice of expert testimony by a psychologist bearing on the defense of
entrapment). 21
In this case, the expert testimony appellant intended to offer was not to
establish that he was incapable of forming the requisite mens rea, but instead was
to show — in the trial court’s words — “that [appellant’s] mental abnormalities
g[a]ve rise to mitigating circumstances [i.e., an actual if objectively unreasonable
belief that he was in mortal danger, supporting a claim of imperfect self-defense]
that reduce the level of guilt from murder to manslaughter.” We see no reason
why the rationale of Cheever and Rule 12.2(c) do not apply in this circumstance
just as they do when a defendant seeks to establish that he could not form the
requisite mens rea or that he acted in (perfect) self-defense and is entitled to
acquittal. Expert testimony about a mental condition that reduces the level of guilt
is testimony that “bear[s] on the issue of guilt[.]” Super. Ct. Crim. R. 12.2(b).
Moreover, as the Supreme Court of Arizona reasoned in explaining why the trial
court may compel a mental examination when the defendant wishes to use expert
testimony for mitigation (of punishment) purposes rather than to prove lack of
intent, “the same considerations apply in both contexts[,]” because “requiring a
defendant to submit to a court-ordered mental examination often provides the only
way to . . . ensure the state a meaningful opportunity to rebut the defendant’s
expert testimony.” Phillips v. Araneta, 93 P.3d 480, 483 (Ariz. 2004); see also id.
at 482 (“When a defendant places his mental condition at issue, . . . he generally 22
‘opens the door’ to an examination by an expert selected by the state or the
court.”).
Relying on Cheever and on the foregoing cases and authorities, we are
satisfied that the proffered defense expert testimony fell within the scope of Rule
12.2 and that the instant case was, within the meaning of Super. Ct. Crim. R.
12.2(c)(1), an “appropriate case” for the trial court’s issuance of an order
compelling appellant to submit to a psychological examination by a government
expert. As already described, appellant proposed to present expert testimony about
his PTSD diagnosis, from a psychologist who had interviewed him over the course
of several meetings and administered several diagnostic tests to him, in order to
“corroborate the likelihood” that he subjectively believed his life was in imminent
danger when he encountered and then stabbed Mr. Beasley. 9 The proposed
9 The fact that appellant labeled his notice as a Rule 16 notice rather than a Rule 12.2(b) notice does not change our analysis. Cf. Vega-Penarete, 137 F.R.D. at 235-36 (reasoning that although the defendant did not give a timely notice under Fed. R. Crim. P. 12.2(b), the government “had early and sufficient notice of the defendant’s intention to rely on evidence of Battered Wife Syndrome” (BWS) as a defense, and ordering that the defendant be examined by government’s psychologist or psychiatrist as to her claimed BWS). Alternatively, if appellant’s notice did not suffice as a Rule 12.2(b) notice, that circumstance triggered Super. Ct. Crim. R. 12.2(d)(1), which provides that for a defendant’s failure to give notice under Rule 12.2(b), the trial court may exclude the defendant’s expert evidence regarding a mental condition bearing on the defendant’s guilt. 23
testimony, which put appellant’s mental condition in issue, “b[ore] on the issue of
guilt,” R. 12.2(b), because it was intended to support a claim of (at least imperfect)
self-defense. In light of the proposed testimony by the defense expert, an order
permitting a government psychologist to examine appellant was not prohibited by
the Fifth Amendment. The conclusion that this was an appropriate case is
bolstered by the fact that the court made clear that it was imposing constraints on
the government both because of defense counsel’s proffer about the limitations the
defense expert had observed in her interview of appellant 10 (the defense expert
“did not ask anything about what happened during the incident of the case . . . and
would not testify about it”), and in order to give effect to the limit stated in Rule
12.2(c)(2). 11 The court instructed that the government’s expert interview of
10 Cf. United States v. Jackson, No. 13-CR-000674-CAS, 2015 U.S. Dist. LEXIS 194201, *11 (C.D. Cal. 2015) (reasoning that “with regard to non-offense- specific mitigating factors such as a . . . long-standing mental condition, . . . allowing the government’s experts to ask offense-specific questions” might “exceed the scope of what is necessary for the government’s experts to rebut the defendant’s mental condition evidence”); United States v. Johnson, 383 F. Supp. 2d 1145, 1163 (N.D. Iowa 2005) (reasoning that if defense psychiatrists obtained information from the defendant about the charged homicide, then “in fairness and justice the [State] should be permitted to cover the subject also”). 11 Rule 12.2(c)(2) states that “[n]o statement made by a defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on the statement, and no other fruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding (continued…) 24
appellant would be permitted “just for a limited purpose and the limited purpose is
this diagnosis . . . .” The court also explained in plain terms how it would enforce
that rule. 12
D. The trial court adequately considered the government’s need for the compelled examination.
Even when there is an “appropriate” case in the sense that there is no Fifth
Amendment bar to a compelled mental examination, it does not follow that the
government may examine the defendant in every case where the defendant
proposes to present expert testimony on his mental state. Rule 12.2’s language that
a trial court “may” order an examination requires that the trial court exercise
discretion in ordering such examination on a case-by-case basis, balancing the
needs of the government to rebut the defense case with the liberty interests of the
(…continued) mental condition on which the defendant has introduced evidence requiring notice under paragraphs (a) or (b) of this rule.” 12 The court told the prosecutors: “You think [the defendant is] going to make statements [to the government expert] that are somehow inconsistent with his claim of self-defense? The [g]overnment [is not] gonna be able to use those.” The court continued: “The [g]overnment would say maybe we want to cross-examine about this, [and] I’m going to say, where did it come from[?] [If the answer is that it came from the government expert’s] interview [of appellant,] I’m going to say no. And the [g]overnment’s going to say, we got another source that it came from. I’m going to say convince me. If it’s a close call, [the government] lose[s].” 25
individual defendant. See Davis, 93 F.2d at 1289 (noting loss of liberty by a
commitment for examination and “forced intrusion of a court-order psychiatric
examination”); id. at 1295 (“The proper parameters of the court’s inherent
authority can only be determined based on concrete cases or controversies, after
development of the factual and legal issues at the district court level.”).
Appellant insists that there was no demonstrated need for the examination by
a government expert to rebut the proffered testimony of the defense expert and thus
that the trial court did not exercise the necessary restraint in exercising its inherent
authority to order a mental examination. Appellant asserts that a compelled mental
examination cannot be justified on the ground that it “seems fair.” On this record,
we disagree with each of those points.
First, the government did offer a reason why an examination of appellant by
a government expert was necessary for the government’s trial preparation, and the
trial court did find that the examination the government sought was necessary. The
court asked the prosecutor why it was not enough to require the defense to make
available its expert’s data and to permit the government and its expert to interview
the defense expert. The prosecutor responded that the defense expert would be
able to base her opinion on appellant’s demeanor during his meetings with her and 26
on her conversations with him and observations of him, while the government
expert would not be able to test the defense expert’s assessments and to form his or
her own opinion based on conversations with and observations of appellant.
Defense counsel interposed that the government expert would be able to “observe
Mr. Bilal,” to watch the defense expert’s testimony, and to ask Dr. Rafanello about
her observations. The court agreed that what defense counsel suggested would
“not really [be] the same,” reasoning that “the operative time is during the course
of an examination” — i.e., “what [the expert] perceive[s] from what [the
defendant] offers during that time, not when he’s here [in the courtroom] in
something of a controlled, yet maybe high-anxiety situation.” 13
The trial court also reasoned that:
[The defense] expert has the first-hand knowledge and exchange with the gentleman and the documents, and the [g]overnment’s expert seemingly testifies from a position where he or she simply cannot make that claim. And part of what the Government says is that doesn’t seem fair from a trial context . . . when the jury hears about one expert with access and another expert without. And one
13 Appellant argues that because Dr. Rafanello’s testimony would be about appellant’s prior diagnoses and evaluations and because the government would have access to the same records Dr. Rafanello reviewed, the government could have fully scrutinized “the validity of her opinion without a compelled examination.” But appellant’s Rule 12.2(b) disclosure stated that Dr. Rafanello’s testimony would include the opinion that appellant “was suffering from [PTSD and complex trauma] at the time of the incident in this case.” 27
might reasonably suggest and conclude as a trier of fact, the expert with access has greater probative value than the expert without.
Although appellant offered not to cross examine the government expert on the
basis that (s)he never examined appellant, the trial court determined that “both
sides [should be] able to present evidence that comes . . . from the same source and
the same basis[.]” The court’s response was reasonable; even if cross-examination
does not invite jurors to give less weight to the opinion of the expert who did not
examine the defendant, we think jurors would be likely to do so of their own
accord. See also Cheever, 571 U.S. at 94 n.2 (rejecting “Cheever’s suggestion that
the State could effectively have rebutted the testimony of his expert by introducing
testimony from experts who had not personally examined him”).
We are not persuaded by appellant’s argument that more justification was
needed for the court’s ruling permitting the compelled examination. The defense’s
proposed expert testimony was central to the defense’s argument that appellant
acted in self-defense and was therefore not guilty of murder. The court’s ruling
was consistent with the Supreme Court’s observation in Cheever that “[o]rdinarily
the only effective rebuttal of psychiatric opinion testimony is contradictory opinion
testimony; and for that purpose . . . ‘the basic tool of psychiatric study remains the
personal interview, which requires rapport between the interviewer and the 28
subject.’” 571 U.S. at 95 (quoting United States v. Byers, 740 F.2d 1104, 1114
(D.C. Cir. 1984) (en banc) (plurality opinion) (quoting Rollerson v. United States,
343 F.2d 269, 274 (D.C. Cir. 1964)).
Further, although the government had received the defense notice about the
proposed expert testimony, it did not have a report from the defense expert, as
none had been prepared. In addition, during the June 3 hearing, when the court
said that it could “right at this moment” set a time period for the defense to turn
over Dr. Rafanello’s data and other materials pertaining to appellant’s claimed
PTSD diagnosis, defense counsel asked the court to “hold off on that until the
[c]ourt’s ruling” on whether a government expert would be permitted to examine
appellant. The lack of a defense expert report and the defense position on the
timing of disclosure of Dr. Rafanello’s data and materials may have hampered the
prosecutors’ ability to explain more fully why the government could not rely solely
on access to the defense expert’s materials and why an examination of appellant
was necessary to meet the position of the defense, and may also have hampered the
court’s ability to assess the government’s need to have its expert examine
appellant. For these reasons, we cannot conclude that the trial court erroneously
exercised its discretion in not requiring a more detailed showing from the
government about why it needed to have its expert examine appellant. Cf. United 29
States v. Baugus, 137 F. App’x 962, 964 (9th Cir. 2005) (“The district judge has
broad discretion under Federal Rule of Criminal Procedure 12.2 to order a mental
examination.”).
E. Fairness to the government was a valid consideration.
We also reject appellant’s argument that the trial court erroneously exercised
its discretion by basing its ruling on fairness. The Supreme Court endorsed that
approach in Cheever, explaining that “[a]ny other rule would undermine the
adversarial process, allowing a defendant to provide the jury, through an expert
operating as proxy, with a one-sided and potentially inaccurate view of his mental
state at the time of the alleged crime.” 571 U.S. at 94. Other courts have likewise
resolved the issue of whether to order a compelled examination by a government
expert on the basis of fairness. See, e.g., United States v. Gonzales, No. CR18-
5489 BHS, 2020 U.S. Dist. LEXIS 24663, at *9 (W.D. Wash. Feb. 12, 2020)
“[G]ranting the request for [a compelled psychological] evaluation [of the
defendant’s claimed cognitive limitations and autism spectrum disorder] is
appropriate as a matter of fundamental fairness[.]”); Jackson, 2015 U.S. Dist.
LEXIS 194201 at *5 (concluding, in a case in which defendant Jackson gave
notice of his intent to call a psychologist to testify about his PTSD to support the 30
inference that he could not have formed the requisite mens rea at the time of the
charged offenses, that the psychologist’s “personal interactions with Jackson have
likely shaped some of her impressions and conclusions,” and therefore that “the
government should have an equal opportunity to evaluate Jackson as a matter of
fairness and in the interests of justice”). The trial court here did not abuse its
discretion in rendering its ruling on the basis that to preclude the government from
having its expert examine appellant would not “make sense . . . from a fairness
standpoint.”
For the foregoing reasons, the judgment of the Superior Court is
Affirmed.
RUIZ, Senior Judge, concurring: I join the majority’s conclusion that in this
case there was no Fifth Amendment bar to a compelled mental examination
because the defendant had waived its assertion by proposing to present expert
evidence based on a mental examination. With this waiver, the trial court had
discretion to order an examination by a government expert. I also concur that the
trial court properly exercised its discretion to order an examination in this case, 31
with appropriate limitations on its use by the government at trial, where the
defense to the most serious offense was premised on appellant’s perception that he
was acting in self-defense, which depended heavily on expert testimony that he
suffered from PTSD based on a personal examination of appellant.
I write separately to emphasize that this is a discretionary call for the trial
court that requires careful weighing of different interests. Inherent authority, as the
majority opinion cautions, is to be exercised “with restraint” and in accordance
with the “relevant procedural rule (here, Rule 12.2).” Ante at 14. We interpret
Rule 12.2(c)’s reference to an “appropriate” case as referring to the Fifth
Amendment and, in light of Cheever’s reasoning, a defendant waives a Fifth
Amendment claim by proposing to call a defense expert who will testify based on a
personal examination. This means, in the words of Rule 12.2(c), that the trial court
“may” — not that it shall — order a mental examination in such a case. 1 In
exercising that discretion, the trial court must bear in mind that a compelled mental
examination is never to be imposed lightly. See United States v. Davis, 93 F.3d
1286, 89 (6th Cir. 1996) (noting it presents “serious — and as yet undecided —
constitutional questions”). A compelled mental examination intrudes upon
1 Rule 12.2(c)(4) also bars admission of statements made by the defendant during examination, expert testimony based on such statements and other fruits of the defendant’s statements. 32
important individual rights and possibly could pose risks to the health of a fragile
defendant. It has the potential to intimidate a defendant who suffers from a mental
condition and, as a consequence, impinge on the Sixth Amendment right to present
a defense and call witnesses. Thus, although fairness to the government can be a
relevant factor to take into account in the exercise of the court’s discretion in a
given case, care must be taken that it is not to be “double counted” (once used to
effect waiver of the Fifth Amendment) by automatically invoking it as a shortcut
that avoids a proper balancing of interests. Not every case in which the defense
expert has examined the defendant will justify that the trial court order that the
defendant submit to a compelled government mental examination. For example,
one can envision cases where evidence of the defendant’s mental condition is
sufficiently established that a compelled mental examination is not warranted or
outweighed by the intrusion of a compelled mental examination; where the
proffered defense expert’s opinion and testimony can be adequately probed at trial
by government counsel or a government expert without need for a compelled
personal examination of the defendant; where the defense expert’s evidence is not
pivotal to the jury’s decision in the case; where the prosecution might be able to
observe the defense expert’s examination and, possibly, even collaborate in its
design so that the government’s purposes can be met without need for an
additional, separate examination; or where the defendant’s condition is such that 33
his health and well-being would be significantly affected by an additional,
compelled examination. These are simply examples. The principal point is that
compelling a mental examination should not proceed automatically as a reflexive
nod to adversarial tit-for-tat whenever the defense proposes to present testimony
based on a mental examination, but should be the product of a deliberate and
careful analysis of the relevant interests at stake.