Criminal Law and Procedure

Kansas v. Cheever: A Defendant's 5th Amendment Rights and Opening the Door Through the Use of Psychiatric Testimony

By Jay Shapiro

In this commentary, Jay Shapiro, co-chair, White Collar Defense, Investigations and Corporate Compliance Group, White & Williams LLP, analyzes the U.S. Supreme Court's recent decision in Kansas v. Cheever, in which the court held that admitting criminal defendant's statements during a court-ordered psychiatric examination to rebut a defense of diminished mental capacity does not violate the Fifth Amendment privilege against self-incrimination. He writes:

“Claims by criminal defendants concerning potential Fifth Amendment violations can arise in a wide variety of situations aside from interrogations. One of the more complex areas involves the introduction of a defendant's statements in rebuttal at trial. This term, one of the United States Supreme Court's first decisions concerns such a situation, with issues that arose as a result of a complex set of facts from a Kansas prosecution.

Kansas v. Cheever, 2013 U.S. LEXIS 9020 (Dec. 11, 2013), involved a murder prosecution that went from state court, to federal court, and then finally back to state court. The defendant, Scott Cheever, killed a sheriff in Greenwood, Kansas. Before the crime, Cheever and his associates had spent time cooking and smoking methamphetamine. The sheriff and other deputies approached the home where Cheever and his friends were to arrest Cheever on an outstanding warrant. Cheever was alerted to their approach but because of tire trouble he was unable to flee. He went back into the home and hid in a bedroom, armed with a handgun. As the law enforcement officers climbed up the stairs, Cheever came out and shot and killed Sheriff Samuels. He also tried to shoot other officers but did not hit anyone else.

“Cheever was charged with capital murder by the state. However, before the case went to trial, the Kansas death penalty statute was held unconstitutional by the Kansas Supreme Court. The state was intent on pursuing the death penalty against Cheever, so it dismissed its prosecution to allow the federal government to prosecute him pursuant to the Federal Death Penalty Act. Cheever's defense indicated that he would introduce expert evidence in an attempt to establish intoxication by methamphetamine at the time of the crime to rebut that Cheever was able to form the requisite mens rea of specific intent. With this defense in play, based upon Federal Rule of Criminal Procedure 12.2(b), the District Court ordered Cheever to undergo a psychiatric evaluation in order to evaluate the effects of methamphetamine when he shot the sheriff. The interview went on for more than five hours.

“However, the defense was never used in federal court. During jury selection, defense counsel could not continue and the proceedings halted, without prejudice. Before the federal government had a chance to try Cheever, the United States Supreme Court reversed the Kansas Supreme Court and held that the state's death penalty was constitutional. The federal case proceeded to trial. Seven days into jury selection, however, defense counsel became unable to continue; the court suspended the proceedings and later dismissed the case without prejudice. Meanwhile, the Court had reversed the Kansas Supreme Court's ruling concerning the state's death penalty and held that it was constitutional. That provided the state with the opportunity to proceed with its case against Cheever, this time assured that it would be able to pursue the death penalty.

“Not surprisingly, Cheever raised a voluntary-intoxication defense to challenge the state's ability to prove that he committed premeditated murder.”

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