MENTAL HEALTH Look at me, I’m

CRAZY!
 SMI
Seriously Mentally Ill:
Not a diagnosis
Designation that qualifies a person for extra services
Mental illness plus functional impairment

Realize: plenty of people have mental illness that are

not designated seriously mentally ill.
FIRST STEPS:
If you are going to scene:

Document behavior
Does defendant appear to be under influence
Try to get blood testing
Interview as much as possible (even if acting odd)
Defendant’s statements and behaviors at the time
of the incident and leading up to the incident
COMPETENCY TO STAND TRIAL

Factual and rational understanding of the charges and ability to assist attorney
 LOW STANDARD
 MENTAL ILLNESS ≠ INCOMPETENCY

1. presumed it will be transferred to the rule 11 commissioners

 Specially trained (both commissioners and support staff)
 Have set schedules for hearings

2. if defense wants the trial court to keep the matter

- Do not agree
- Will be scheduling issues
- Trial court will most likely lack experience in issues
 RULE 11

Rule 11 reports are confidential and are sealed by the

Court. Cannot use any information for any guilt
proceeding. If Defense attempts to use information
from the report ask for them to be unsealed so that you
can provide the whole picture.

The reports are NOT confidential if Defendant asserts

a Guilty Except Insane Defense
 2 ND RULE 11

- must be in writing
- must be supported by attorney’s written
motion AND competent evidence.

U.S. v. Ives, 574 F.2d 1002 (9th Cir. 1978)

TRIAL ATTORNEY RESPONSIBILITIES

1. notify Josephine or Juli of any issues

2. respond to non-Rule 11 motions
3. provide timely notice to victims
4. potentially file civil commitment paperwork
ISSUES NOT SENT TO RULE 11

1. GUILTY EXCEPT INSANE

2. ATKINS HEARING
3. COMPETENT TO REPRESENT SELF
4. RULE 26.5
5. AMNESIA

The trial court decides all of these issues (after Rule 11 if

necessary)
 DIMINISHED CAPACITY

is
An illegal defense
State v. Mott, 187 Ariz. 536, 931 P.2d 1046
(1997)
Clark v. Arizona, 548 U.S. 735 (2006)
 STATE V. CHRISTENSEN

Allows testimony that a defendant acts more

reflexively in order to rebut premeditation.
Observation evidence is admissible: concerns what the
defendant did or said at time of offense.

State v. Christensen, 129 Ariz. 32, 628 P.2d 580

(1981)
 STATE V. MALONE
Evidence of behavioral tendencies is not “diminished capacity”
evidence
 may be admitted to challenge premeditation

Defendant may NOT present testimony that brain damage makes

impulsivity more likely

State v. Malone, 247 Ariz. 29, 444 P.3d 733 (2019)

*** “…the parties have not addressed whether the defense can introduce mental
disease evidence to corroborate behavioral-tendency evidence when the
prosecution challenges the latter. We leave that issue for a future case.”
 GUILTY EXCEPT INSANE

- as soon as this defense is noticed, notify us!

- are specific requirements for the defense
- the court must find a reasonable basis for the
defense (usually a doctor’s report)
- is an affirmative defense
- start asking for ALL mental health records as soon as
noticed
CONSEQUENCES OF GEI FINDING

- non-dangerous (goes to ASH for up to 75 days) then nothing

- dangerous (goes to ASH for up to 120 days before hearing)

- defendant is NOT going to DOC when better

- will be released to community when stabilized and not

considered a danger
SELF-REPRESENTATION

More cases reversed for not allowing it

Court must permit when def knowingly and intelligently waives right to
counsel
 Faretta v. Califonia, 422 U.S. 806 (1975)

Is a “mental – illness – related” limitation

 Indiana v. Edwards, 554 U.S. 164 (2008)

Can have a doctor appointed to look into this issue, however, try Faretta
first!
 AMNESIA

Is not a competency issue:

State v. McClendon, 103 Ariz. 105. 437 P.2d 421 (1968)

State v. Johnson, 112 Ariz. 17, 536 P.2d 1035 (1975)
State v. Ferguson, 26 Ariz.App. 285, 547 P.2d 1085
(1976)
Cites Wilson v. U.S., 129 U.S.App.D.C. 107, 391 F.2d
460 (1968)
Lists 6 factors to look at