Expert Testimony

Brett Purtzer; April 1998

                At some point during your criminal practice, you will need the services of an expert to help present a defense, such as diminished capacity or insanity.  But occasions also arise when an expert, such as a psychiatrist or psychologist, is necessary to help explain the actions of the complaining party, i.e. alleged rape victim, particularly when through your discovery you begin to learn about the complainant's mental condition.  In sex cases, such psychological and psychiatric evidence may be crucial in overcoming the juror's desire to believe a rape complainant's testimony over your client's when the issue is consent, particularly when the complainant suffers from a mental disease or defect.

                As one might realize, a psychiatrist's examination of a complaining witness is discretionary with the court, but should be ordered when a compelling reason for such an exam is presented.  See State v. Braxton, 20 Wn.App. 489, 580 P.2d 1116 (1978).  Further support for such examination arises when the individual's mental condition is called into question.  See State v. Froehlich, 96 Wn.2d 301, 635 P.2d 127 (1981).

                In State v. Froehlich, 96 Wn.2d 301, 635 P.2d 127 (1981), our Supreme Court in an en banc decision held that it was proper to permit a psychiatrist to testify about a witnesses' mental condition when such condition affects the witnesses ability to observe, recollect, and communicate

truthfully.  The rationale for allowing such testimony is so the jury can be apprised of the effects of such mental defect when there exists an issue surrounding an individual's credibility. 

                As set forth within Froehlich, such evidence is admissible and the adverse party may call an expert witness to testify regarding a witnesses mental infirmity.

                Cross-examination as to a mental state or condition, to impeach a witness, is permissible.  Annot., Cross-Examination of Witness as to His Mental State or Condition, to Impeach Competency or Credibility, 44 A.L.R.3d 1203, 1210 (1972) and cases cited therein.  Cross-examination is one of several recognized means of attempting to demonstrate that a witness has erred because of his mental state or condition.  In addition, in a proper case counsel may produce experimental evidence to indicate a mental infirmity, or he may call an expert witness to testify as to the witness' mental infirmity.  Annot., 44 A.L.R.3d at 1208.  In each of these methods the purpose is the same, i. e., to impeach the witness and put his credibility in issue by showing his mental[635 P.2d 130]  condition and how it affects his testimony.  See Juviler, Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, 48 Calif.L.Rev. 648, 651-52 (1960) (hereafter Juviler ).

Froehlich, 96 Wn.2d at 306.

                Importantly, one federal court has noted the importance of information dealing with a mental defect and how it relates to an alleged victim's credibility in a rape case.

                The dangers which must be considered in determining whether a mentally retarded rape prosecutrix as a competent witness must also be considered by the jury in assessing her credibility, particularly since "the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence."

United States v. Benn, 476 F.2d 1127 (D.C.Cir. 1973).

                Further, the Froehlich court states that psychiatric testimony is helpful in aiding the jury in evaluating the testimony of a mentally defective witness.  Id. at 307.  "In this context, it must be determined whether expert testimony will help cast light on the affect the particular mental disorder will have on credibility."  State v. Stram, 16 Wn.App. 603, 559 P.2d 1 (1976).  Further, "the jury should be made aware of a witnesses' mental or emotional condition and the affect of that condition upon his testimony."  Froehlich at 308.  By analogy, the Court of Appeals has held that it was error to exclude the testimony of an expert who was called to testify regarding ingestion of and the effects of LSD on a rape claimant's perception of an event.  See State v. Brown, 48 Wn.App. 654, 660, 739 P.2d 1199 (1987).  Further, the same court held that even if such evidence is prejudicial, "ER 403 does not extend to the exclusion of crucial evidence relative to the central contention of a valid defense."  Id.

                Although the matter of a psychological or psychiatric examination is discretionary with the court, when you have a case that brings an individual's mental condition into question, the case-law suggests that this evidence should be brought to the jury's attention so they may make an intelligent decision after hearing all of the evidence.