A Practitioner’s Guide to

Defending Capital Clients Who Have

Mental Retardation

The International Justice Project is grateful for the significant

contribution of the Cornell Law School Death Penalty Project, Federal

Death Penalty Resource Counsel, and Habeas Assistance and

Training Counsel to the preparation of this guide.

All Rights Reserved

Anne James

Executive Director

The International Justice Project

www.internationaljusticeproject.org

Richard Burr

Joanne Cecil

Anne James

James R. Patton, Ed.D.

Wendy Peoples

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Table of Contents

TABLE OF CONTENTS

PART II ............................................................................................................................................................43

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Table of Contents

Appendix One – A: AAMR 2002: Adaptive Behavior: Background Questions to Ask Credible

Informants...............................................................................................................116

Appendix One – B: DSM-IV-TR: Adaptive Behavior: Background Questions to Ask Credible

Informants...............................................................................................................123

Appendix Two: Compilation of State and Federal Statutes..............................................................131

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Introduction Page 1

INTRODUCTION: THE PURPOSE OF THIS GUIDE

Mental retardation has become a critical issue for those charged with, or convicted of,

holding that the execution of prisoners with mental retardation violates the Eighth

Amendment’s prohibition of cruel and unusual punishment, has placed mental retardation

center stage within the criminal justice system. It is imperative that every lawyer defending

capital clients understand, and know how to present, evidence of mental retardation.

Mental retardation is now, literally, a question of life or death, correspondingly no one can

afford to make the most common mistake we, as lawyers or defense team members, are

retardation, as explained in this guide, does not create the same image for everyone. There

is no distinguishing manner in which our clients communicate with us or others, nor is

there a particular manner in which they speak, use language, recount experiences, or

retardation in the course of an interview.

People with mental retardation have different strengths and different limitations, as do we

all. Moreover, people who have mental retardation can often undertake tasks that conflict

with our expectations of what those with mental retardation are capable of doing. Some,

for example, can use technical or complex vocabulary, even legal terms, appropriately.

Some can write coherent letters, others may hold jobs that require a degree of complex

behavior, or can obtain and use a commercial driver’s license. Some have artistic aptitude,

and some can serve as jail trustees. In fact, the catalog of abilities that people with mental

Thus, our impressions in connection with a client’s abilities in initial interviews – when we

know nothing about the client’s limitations (which are usually revealed by life history

evidence, not in interviews) – cannot serve as a basis for reasonable decision-making with

retardation solely on the basis of jailhouse interviews. If we permit ourselves to do so, we

may well make an error and a client may consequently receive a sentence of death.

The purpose of this guide is to help us, as criminal defense lawyers and members of

defense teams, develop the knowledge and strategic understanding we need to protect our

entire spectrum of issues that are contingent on the client’s intellectual and behavioral

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Introduction Page 2

functioning. In keeping with this, the guide has been divided into three sections with

accompanying appendices.

1. What is mental retardation?

2. How does it affect people who have it?

3. What is the investigation necessary to screen for mental retardation?

4. What additional investigation is necessary to establish that a client has

mental retardation?

5. What are the commonly recurring issues that must be addressed to establish

that a client has mental retardation?

2. Competence to stand trial;

3. Waivers of rights and guilty pleas;

4. Coerced confessions;

5. False confessions;

6. Criminal responsibility – insanity, lack of intent to kill, coercion or

domination by others, or imperfect self-defense;

7. Unadjudicated charges and prior convictions that could otherwise be used

against the client in the current case;

8. Explaining courtroom behavior that can be highly prejudicial – such as

appearing indifferent or disinterested, falling asleep, or getting angry – in a

way that diminishes the prejudicial effect of such behavior;

9. Explaining difficulties in the client’s adjusting to being in custody;

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Introduction Page 3

10. Competence to assist in post-conviction proceedings and competence to be

executed; and

11. Clemency in cases in which the judicial process rejects a finding of mental

retardation.

1. International law and instruments;

2. International institutions;

3. Articulating international arguments in capital cases involving persons with

mental retardation;

4. International avenues of appeal and fora;

5. Clemency: international intervention.

1. Appendix One – A: AAMR 2002: Adaptive Behavior: Background

Questions to Ask Credible Informants

2. Appendix One – B: DSM-IV-TR: Adaptive Behavior: Background

Questions to Ask Credible Informants

3. Appendix Two: Compilation of State and Federal Statutes

This guide does not, and cannot, purport to provide all the information required to

investigate and prove mental retardation and represent a client who has mental retardation.

However, the guide does provide the basic working knowledge needed to represent a

capital client with mental retardation throughout the process, from trial through postconviction

proceedings. From this springboard, you will be able to locate other resources

and provide each client with the best representation you are capable of providing.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Introduction Page 4

Please send comments or enquiries to:

E-mail: billbett@aol.com

www.internationaljusticeproject.org

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Part I Page 5

PART I

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Clinical Definitions of Mental Retardation Page 7

1 CLINICAL DEFINITIONS OF MENTAL RETARDATION

Defending a capital client who has mental retardation requires an understanding of the

clinical features of mental retardation.

The first task in seeking to understand mental retardation is to review the relevant

many states are in the process of adopting statutory definitions of mental retardation for use

in capital cases. If the state does not yet have statutory definitions for use in capital or

criminal cases, check the statutes providing for services for people with mental retardation.

These may provide the definitions that the courts will be inclined to use. However, some

of these definitions may be so oriented to providing services, that they are not appropriate

for diagnosis in a criminal case. Finally, determine whether the courts in your state have

adopted definitions for use in criminal and/or capital cases.

Most cases and statutes have adopted a version of the clinical definitions developed by the

American Association on Mental Retardation (“AAMR”) and the American Psychiatric

Association (“APA”), which are mirror images of each other, and constitute the accepted

definitions used by mental retardation professionals. Each organization recognizes that

mental retardation is a disability characterized by (1) “significant limitations in” (AAMR),

or “significantly sub-average” (APA), intellectual functioning; (2) accompanied by

“significant limitations” in adaptive “behavior” (AAMR) or “functioning” (APA); (3) the

[hereafter, “DSM-IV-TR”].

It is important to remember that any definition of mental retardation – whether statutory,

judicial, or clinical – is describing the same disability. The terms of the definitions may

vary somewhat, but all are focused on the same group of people with the same disability.

solving problems, thinking abstractly, comprehending complex ideas,

learning quickly, and learning from experience. (AAMR 2002, at 51.)

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Clinical Definitions of Mental Retardation Page 8

The consensus among mental health professionals is that a full-scale IQ of 70 or below

owing to “variations in test performance, examiner’s behavior, or other undetermined

“standard error of measurement” must be taken into account when interpreting the IQ score

obtained on any test. The standard error of measurement is the range of IQ scores within

Wechsler Adult Intelligence Scale, Third Edition (“WAIS-III”), the conventional standard

error of measurement used is a range of plus or minus five points from the IQ score

component of the definition of mental retardation, for the true IQ score of a person who

obtains a score of 75 is within the range of 70-80.

Adaptive behavior or adaptive functioning describes what people are capable of doing with

regard to caring for themselves and relating to others in daily living.

The AAMR definition requires that there be “significant limitations ...in adaptive behavior

as expressed in conceptual, social, and practical skills.” AAMR 2002, at 1. “Significance”

can be established by the limitations in one of the three domains. AAMR 2002, at 74, 77-

78. The AAMR manual provides examples of “representative skills” in each of the three

interpersonal, responsibility, self-esteem, gullibility, naiveté, ability to follow rules, obey

daily living, instrumental activities of daily living, occupational skills, and the maintenance

The APA definition requires that there be “significant limitations” in at least two of the

following eleven domains:

to determine the level of intellectual functioning, because it is deemed the best measure of human

intelligence. AAMR 2002, at 51, 55-56.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Clinical Definitions of Mental Retardation Page 9

Four important principles inform the assessment of adaptive behavior.

indeed rarely has, deficits in all domains. The AAMR requires deficits in

only one of three domains. The APA requires deficits in only two of eleven

domains.

domain. AAMR 2002, at 8.

and the Death Penalty: A Guide to State Legislative Issues,” 27 Mental &

Physical Disability Law Reporter 11, 13 n.29 (January/February 2003).

Thus, mental retardation can never be ruled out by determining what a

description of adaptive behavior domains similar to the description of the eleven domains still utilized by the

APA. The only difference is that the domain, “social/interpersonal skills,” was called “social skills” in the

AAMR manual, the domain “use of community resources,” was called “community use” in the AAMR

manual, and the two domains, “health” and “safety,” were combined into a single “health and safety” domain

In 2002, AAMR modified its definition of mental retardation to include the three-domain description

of adaptive behavior noted above. The 2002 definition is the following:

Mental retardation is a disability characterized by significant limitations

both in intellectual functioning and in adaptive behavior as expressed in

conceptual, social, and practical skills. This disability originates before

the age of 18.

AAMR 2002, at 1.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Clinical Definitions of Mental Retardation Page 10

In summary, every individual with mental retardation is different. Individual differences

derive from a person’s particular individual limitations, from their environment and from

the supports available to them.

The third component of the definition of mental retardation – sub-average intellectual

functioning and deficits in adaptive functioning become apparent before the age of 18 – is

Mental retardation is neither a mental illness nor a medical disorder. It is as much a part of

a person’s development as secondary sex characteristics, body type or skin color, and is

just as permanent and enduring. To satisfy this component of the definition of mental

retardation, it is not necessary that there be a diagnosis of mental retardation before the

apparent before the age of 18, that IQ testing sometime during the person’s life reliably

establish an IQ of 75 or below, and that there be no intervening reason, such as a traumatic

accurate and reliable social history will provide sufficient evidence to show onset during

the developmental stage of life.

which a human being is developing to maturity – that is, from birth through at least age 18 and, more likely,

of mental retardation in an individual is not necessary for the diagnosis – although it may be helpful in

AAMR 2002 explains, “Mental retardation is a disability characterized by impaired functioning. The cause

law in your jurisdiction and not to assume that the age of onset is 18. Moreover, current research concerning

the maturation of the human brain – some of which suggests that maturation is not complete until a person is

Longitudinal MRI Study,” 2 Nature Neuroscience 861-863 (1999) – may lead to a consensus in the future that

the “developmental period” extends beyond age 18. Thus, if you have a client who, except for age of onset,

meets the criteria for mental retardation – and s/he is in his/her early twenties – argue that the client has

mental retardation and rely on current brain research to challenge the statute’s definition of age of onset.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

How Mental Retardation Affects People Who Have it Page 11

2 HOW MENTAL RETARDATION AFFECTS PEOPLE WHO

HAVE IT

Mental retardation affects every aspect of a person’s intellectual and social behavior,

including:

transportation;

may not affect every aspect of conceptual, social, and practical behavior. Virtually every

had "mild" retardation. Individuals with scores between 35-40 and 50-55 had "moderate" retardation, those

with scores between 20-25 and 35-40 had "severe" retardation, and those with scores below 20 or 25 had

"profound" retardation. AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 13

(8th ed. 1983). Beginning with the 9th edition of its manual, in 1992, AAMR discarded the mild-moderatesevere-

profound classification system because it was too heavily based upon IQ scores, and because the

"mild" classification tended to suggest, quite erroneously, that this level of mental retardation was "not so

bad." See AAMR 2002, at 26. However, the APA still utilizes this classification system. DSM-IV-TR, at

42-43.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

How Mental Retardation Affects People Who Have it Page 12

this degree of mental retardation, like everyone else, have strengths and weaknesses.

However, mental retardation always affects conceptual, social, and practical functioning in

some significant ways. Thus, it is important to understand and explain the limitations that

The “representative skills” in this domain include the use of language, reading and writing,

money concepts, and self-direction. AAMR 2002, at 82. The comparable skills areas in

the DSM-IV-TR are communication, self-direction, and functional academics.

Impairments in reading, writing, and math skills – functional academics – are almost

invariably reflected in poor and failing grades in school. Clients with mental retardation

have difficulty keeping up in school and are often “tracked” to the lowest functioning

group of students or placed in special education classes. In the lowest tracks or in special

education classes, they may appear to do well, receiving higher grades. Slow and faltering

reading, when asked to read aloud, and poor reading comprehension are also signs of

impairment. Everyday reading tasks such as reading a newspaper, a letter, a label on an

item in a grocery store, and public postings, are often extremely challenging. For many,

searching for a number in a telephone directory is demanding, if not impossible. Everyday

writing tasks are also often impaired. Clients with mental retardation can frequently write

simple letters but cannot write anything requiring a greater complexity of expression. They

rarely write notes to themselves. Spelling, grammar, sentence structure and use of

paragraphs are often rudimentary in nature.

Impairments in mathematical skills are often evidenced by difficulty in buying items in a

store, selecting items that are affordable, counting out money and making or obtaining the

proper change. The ability to tell time or to determine elapsed time from a clock or watch

is often impaired. Using a bus or train schedule may be difficult. Furthermore,

maintaining bank accounts, paying bills and using a ruler or measuring tape can be nearly

impossible tasks.

Self-direction encompasses a broad range of skills necessary for living independently,

channeling emotions, and setting and achieving goals appropriate to one’s strengths and

limitations. The ability to learn, abstract from what we learn, and apply it in different

extremely knowledgeable mental retardation experts. Dr. James R. Patton, of Austin, Texas, has developed a

comprehensive list of background questions to ask of credible informants in assessing adaptive behavior.

With Dr. Patton’s permission, that list has been attached as Appendices One A and B. Dr. Richard Garnett,

a teaching and evaluating capacity. Dr. Patton’s list of background questions and Dr. Garnett’s testimony

serve as the basis for the following discussion.

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How Mental Retardation Affects People Who Have it Page 13

contexts, is critical to self-direction, as is the ability to understand oneself and exercise

some control over behavior.

One of the most important components in self-direction is the ability to learn. Impairments

in this ability can manifest directly, for example, in simplistic and concrete thinking and in

having difficulty comprehending concepts and words. Impairments in the ability to learn

and comprehend can also be reflected indirectly in numerous ways. For example, people

with mental retardation repeat mistakes more frequently than people with normal

intellectual functioning. The ability to avoid repeating mistakes is a function of learning

from experience in the abstract – it involves learning from prior mistakes and negative

consequences, transferring that learning to similar circumstances, and modifying one’s

behavior accordingly. This is a difficult process for many people with mental retardation.

Engaging in behaviors that require the integration and application of various pieces of

knowledge or skills can be impossible. A client with mental retardation may have been

able to learn, for example, the individual skills that are necessary to drive a truck safely and

proficiently. However, when asked to pull out onto the highway, drive to a particular

location, and back up to a loading dock, the client may not be able to perform one or more

of these tasks. Even if the client can drive effectively, he may not know what to do when a

change is made in the route he has been taught to drive. The integration of skills and

knowledge into a whole is a complex behavior by which a person can adapt to changing

conditions and is often beyond the ability of a person with mental retardation.

The ability to engage in goal-directed behavior is also often impaired. Goal-directed

behavior requires that we be able to engage in a sequencing process in which we

understand that what we do now has consequences and leads to something else and

ultimately to a predictable outcome. Clients with mental retardation often are unable to

engage in such a process because their ability to sequence – to look ahead, understand how

one set of behaviors leads to another, and how a certain sequence of behaviors is necessary

to reach a goal – is impaired.

Managing daily life can also be a challenge for clients with mental retardation. Developing

and keeping to a schedule, which allows the necessary tasks and responsibilities of daily

life to be met in an orderly fashion, requires initiative and considerable integrative thinking.

Necessary skills include the ability to identify and keep in mind tasks that need to be

completed, project the amount of time needed for each, and organize time in the manner

that permits us to accomplish these tasks. Each activity or task must be initiated and

completed in a manner that is consistent with the schedule we have set out for ourselves.

This can often be difficult for people with mental retardation.

Decision-making with regard to significant matters is another area that requires integrative

thinking. It requires an awareness of our goals and desires, an appreciation of the social

norms and values that establish the context for our behaviors, and the ability to identify

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

How Mental Retardation Affects People Who Have it Page 14

possible alternative choices and appreciate and evaluate the consequences of those choices.

Clients with mental retardation often have difficulty engaging in this process effectively.

One of the hindrances which compounds difficulties in decision-making for clients with

mental retardation is that they often do not accurately assess and appreciate their strengths

and weaknesses. They are likely to overestimate some of their abilities and to ignore and

under-utilize certain strengths. In keeping with this, such clients often do not know to ask

for assistance when it is needed.

Impulsive behavior is often a problem for clients with mental retardation. Everyone has

impulses – strong emotions or urges that can lead to “unplanned” behavior. The ability to

control, defer, redirect, or moderate impulse-driven behavior is impaired in clients with

mental retardation.

Communication, another area of conceptual behaviors, also involves the utilization of

numerous skills and abilities. The communication process entails engaging in both

expressive and receptive behaviors. We listen, we respond, we explore in detail the same

subject, or we change subjects – all within the framework of reciprocal consent, which is

the core of the communication process. Some skills involve the building blocks of

expressive communication, such as word pronunciation, word usage, vocabulary, and

syntax. Other skills are more integrative, for example, making sense to and being

understood by others, or communicating matters which are essential to well-being, such as

feelings and desires. Additionally, receptive communication involves being attentive to and

appreciative of what others are expressing. Clients with mental retardation often have

difficulties in one or more of these areas.

The “representative skills” in this domain are listed as interpersonal, responsibility, selfesteem,

gullibility, naiveté the ability to follow rules, obey laws and avoid victimization.

AAMR 2002, at 82. The comparable skills areas in the DSM-IV-TR are, simply, “social

skills.”

Interpersonal skills are reflected in the number of close friends a client has, how much time

s/he spends in their company, how well s/he gets along with these friends, whether s/he can

make new friends easily, and what types of social activities are undertaken. Additional

contexts within which to examine social relationships include; school, dating, marriage,

family (of origin and from marriage), and work. The core of enduring and meaningful

relationships is a give-and-take process in which both partners appreciate the consequences

of their actions upon the other, acknowledge these consequences in ways that reinforce the

relationship, continue to make it satisfying for each person, and empathize with each other.

People with mental retardation often cannot satisfy these dynamics. Their limitations are

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

How Mental Retardation Affects People Who Have it Page 15

reflected in the small number of close friends they have, the ways in which they relate to

people, and in which others relate to them, in other social settings.

Responsibility, gullibility, naiveté, and victimization are dimensions of social behavior that

are often interconnected. Clients with mental retardation often have difficulty taking

charge of a group or being the person who must ensure the completion of the task. They

are more often seen as followers than leaders and are easily influenced by others. They can

often be manipulated into doing things for others. They are often easily duped. For this

reason, they are frequently the object of practical jokes. Such characteristics often lead to

clients being victimized both by people who know them and by strangers.

Understandably, low self-esteem is a consequence of these social limitations. Clients with

mental retardation often feel that they are worthless, unable to do anything right, friendless,

unlovable, and scorned. Self-confidence is a feeling that many have never experienced.

Accomplishments are difficult to recall; however, criticism for failure is not. It is often

difficult for clients with mental retardation to describe any kind of performance – in their

families, school, work, or the community – that they feel good about or for which they

were praised.

Finally, social behaviors include following rules and laws. Clients with mental retardation

will often have had trouble following rules in school and at home when they were young.

Getting in trouble at school for not following rules, even to the extent of being suspended

or expelled, is not unusual. Being punished at home for failing to comply with family rules

and expectations usually accompanies problems at school. Involvement within the juvenile

justice system is frequent, and as adults, clients with mental retardation often have

numerous criminal charges and periods of incarceration.

The “representative skills” in this domain include activities of daily living, instrumental

activities of daily living, occupational skills, and maintenance of a safe environment.

AAMR 2002, at 82. The comparable skills areas in the DSM-IV-TR are self-care, home

living, health, safety, use of community resources, and work.

Activities of daily living include self-care behaviors, for example, eating, dressing,

toileting, and transferring from one position to another. Most clients are not so impaired

that they have trouble with these activities.

The instrumental activities of daily living, or in DSM-IV-TR terminology, home living,

health, and use of community resources, involve more complex behaviors. These include

preparing meals, housekeeping, using the telephone, using household appliances and basic

household tools, performing basic home maintenance, obtaining transportation, managing

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How Mental Retardation Affects People Who Have it Page 16

facilities), monitoring personal health, seeking medical assistance as required, taking

prescribed medications, and using over-the-counter medications as needed. Clients with

mental retardation will often have difficulty with some of these behaviors.

Occupational skills (or in DSM-IV-TR terminology, work) include jobs held, job

performance, job terminations, vocational interests, job-seeking/finding abilities, work

attitude, work/vocational skills, job training, getting to work on time, and the degree of

assistance and supervision needed. Clients with mental retardation will often have

difficulty in at least some of these dimensions.

Finally, maintaining safe environments includes properly assessing the risks associated

with various activities, taking appropriate precautions, perceiving whether others are at

agents and medications away from children), and following prescribed safety rules at work.

Clients with mental retardation will often have difficulty in performing some of these

behaviors.

As the AAMR explains, “Adaptive behavior is considered to be conceptually different from

maladaptive or problem behavior, even though many adaptive behavior scales contain

assessments of problem behavior, maladaptive behavior, or emotional competence.”

AAMR 2002, at 79. Thus, in looking for evidence of limitations in adaptive behavior, we

retardation inquiry. The AAMR explains:

(1) failure to conform to social norms with respect to lawful behaviors as indicated by

repeatedly performing acts that are grounds for arrest

(2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal

profit or pleasure

(3) impulsivity or failure to plan ahead

(4) irritability and aggressiveness, as indicated by repeated physical fights or assaults

(5) reckless disregard for safety of self or others

(6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work

behavior or honor financial obligations

(7) lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated,

or stolen from another

DSM-IV-TR, at 706.

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How Mental Retardation Affects People Who Have it Page 17

We should also recognize, however, that the function of inappropriate or

maladaptive behavior may be to communicate an individual’s needs, and in

some cases, may even be considered ‘adaptive.’ Recent research on the

function of behavior problems in people with severe disabilities ...

demonstrates that such behavior may be an adaptation judged by others to

be undesirable, but often representing a response to environmental

conditions and, in some cases, a lack of alternative communication skills.

AAMR 2002, at 79.

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Investigation: Screening for Mental Retardation Page 18

3 INVESTIGATION: SCREENING FOR MENTAL RETARDATION

Capital clients who have mental retardation are almost always in the highest functioning

group of people with mental retardation; that is, those who were formerly considered to

have “mild” mental retardation. One of the striking characteristics of people with mild

mental retardation is that, without IQ testing and thorough assessment of adaptive

functioning, it is difficult for anyone – especially lay people – to determine reliably

whether that person has mental retardation. Among people with mild mental retardation,

there are no unique physical features, patterns of speech or expression, patterns of activity,

mannerisms, thought processes, emotional expressions, or interactive styles that are

indicative of mental retardation.

In addition, people with mild mental retardation are adept at “passing,” or masking signs of

their disability. For example, by answering questions with “yes”, repeating what others say

in a natural conversational style, and looking for the answers in the questions asked of

them, people with mild mental retardation are often able to blend in and conceal what is a

socially stigmatizing condition. In keeping with this, people with mental retardation will

closely tied to desperate attempts to reject the stigma of mental retardation. Many mental

retarded individuals expend considerable energy attempting to avoid this stigma.” Ellis &

The direct consequence of this deep-seated inclination to appear “normal” is that clients

with mental retardation will often go to great lengths to hide their disability even when

Deficiency 453, 453 (1961).

Mental Deficiency 30, 33 (1967) (the most common insults used by people with mental retardation relate to

intelligence, indicating that denial of their intellectual limitations is a nearly universal defense).

Relationships,” in PSYCHIATRIC APPROACHES TO MENTAL RETARDATION 68, 79 (F. Menolascino

ed. 1970).

individuals institutionalized for mental retardation attempted to conceal the reason for institutionalization

with ‘tales’ of ‘mental illness,’ ‘nerves,’ and even ‘criminal offenses.’ R. Edgerton, THE CLOAK OF

J. Dudley, LIVING WITH STIGMA: THE PLIGHT OF THE PEOPLE WHO WE LABEL MENTALLY

RETARDED (1983).”

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Investigation: Screening for Mental Retardation Page 19

these clients ineligible for execution makes them unable to appreciate that their lifelong

tendency to hide their limitations is, in this context, not in their interest.

Accordingly, to avoid overlooking mental retardation in our clients, it is imperative to

proceed with extreme care. It is inadequate to rely upon our own intuitive conclusions –

based on our impressions derived from interviews with the clients, letters from the clients,

for every client.

In every capital case, a complete life history of our clients must be developed. This is the

Only through a thorough gathering of records such as:

and prevalence of drug-dealing in the neighborhood);

interviewing of scores of people such as:

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Investigation: Screening for Mental Retardation Page 20

and the careful analysis of all this information, can a complete life history be developed.

In the course of developing and analyzing our client’s life history, we must look for

evidence that suggests the need for further investigation of possible mental retardation.

This includes:

retardation can be passed on from one generation to the next. If other family members

have mental retardation, sometimes their disability is known, sometimes it is not. Thus, in

collecting history concerning other family members, look for accounts of any family

member thought of as “slow,” who had repeated failures in school, who failed to complete

high school (or whatever level of school completion is the norm in the community), who

has trouble reading or writing, or who receives social security disability payments for

“mental handicaps.” Additional records need to be gathered for these family members to

determine whether they have mental retardation.

disorder, early signs of delayed development may be associated with mental retardation.

their peers in school. In fact, most people with mental retardation cannot progress beyond

sixth grade skills in academic achievement: DSM-IV-TR, at 43. One should note that

mental retardation may not be reflected in school performance initially in the elementary

years. Instead, as the child ages s/he may begin to fall behind their peers and continue to do

so as time progresses. If placed in the lowest academic track or in special education,

children with mental retardation may begin to achieve better grades, including A’s and B’s.

Some entire schools may be composed of children who have learning problems, behavioral

problems, or other disadvantages in learning. Therefore, to understand school records

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Investigation: Screening for Mental Retardation Page 21

accurately, one should be fully aware of the school environment, context and additional

numerous prior arrests for relatively minor offenses, sometimes resulting in dismissal,

sometimes in adjudication. If the offenses were committed single-handedly, they will often

be property crimes (and often similar types of property crimes), or assaults (frequently

associated with a perceived threat from the victim). If the offenses were committed with

others, clients with mental retardation invariably will have played a more low-level action

role rather than a role at a planning or command (“mastermind”) level. The commission of

sex offenses, resulting from social misunderstanding about what is inappropriate, is also

not uncommon.

committed to the juvenile system. Commitment usually occurs because of frequent arrests,

failing to attend school, or running away from home. Juvenile records will often show a

revolving door history, in which the client gradually makes progress during a commitment,

is eventually released, almost immediately fails to meet the post-release requirements of

supervision or counseling, re-offends, and is then re-committed.

offenses and periods of incarceration. Classification records usually contain IQ scores and

educational achievement test scores. Depending on the tests utilized, and the manner in

which the tests are administered, low scores may suggest mental retardation. Because

testing may be unreliable, however, low or high scores should not be taken as accurate

assessments of intellectual functioning until the reliability of the tests, their administration,

and their scoring is determined. During incarcerations, most prisoners are channeled into

work programs, vocational training programs, academic programs, and various counseling

programs. Prison records usually have detailed records of a prisoner’s performance and

progress in such programs. For clients with mental retardation, these records will often

reveal limitations in adaptive functioning – for example, not learning effectively, not

performing work tasks properly or efficiently, being able to perform only the simplest tasks

rather than the whole range of tasks within a job classification, persistently showing up late

is “They have been destroyed.” Do not be deterred. Find out if there are old records somewhere else that you

can go through. Often “they have been destroyed” means only, “I cannot find them.” Sometimes, as well,

school records may be found somewhere outside the school system – having been obtained by other agencies

dealing with your client, such as juvenile authorities, probation officers, and jails and prisons. At worst, try to

reconstruct school records through interviews with teachers, guidance counselors, family members, and

classmates.

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for work, making similar mistakes repeatedly, and acting impulsively. Disciplinary

military. Military IQ testing has not always been reliable, and a pre-military school record

that shows marginally satisfactory performance, even if in special education or the lowest

academic tracks, may be sufficient to permit acceptance into the military (active service or

national guard/reserves). Military records, like prison records, reflect fairly thorough

assessments of performance and behavior during basic training and duty assignments

thereafter. Limitations in adaptive functioning may well manifest during military service,

resulting in discharge for unsuitability, lack of or extremely slow advancement, or frequent

disciplinary charges.

call for repetitive, physical labor, rather than jobs that require the exercise of judgment, the

use of academic skills (math, reading, writing) or applied academic skills (such as

measuring, timing, scheduling, sorting by words or numbers), the exercise of independent

choice or initiative, or the supervision of others. Often our clients do not hold jobs for long

periods of time, either because the jobs are temporary or seasonal, or because our clients

are terminated for not showing up on time or not showing up at all.

earnings records for any period of employment with an employer who reports earnings and

makes periodic payments into the social security system (which should be all employers

who pay wages to employees). Earnings records can reveal that the client failed to

maintain employment with the same employer for very long, held numerous short-term

jobs, held relatively few jobs, and was paid low wages. All these factors are consistent

with many people, especially poor people, who have mental retardation. On occasion,

social security disability records will show that a client has been diagnosed with mental

retardation and has been provided with disability payments.

history investigation includes investigation into possible exposure to environmental toxins,

such as lead, mercury, and pesticides. These and other environmental toxins can cause

brain damage in children, which can produce mental retardation.

services, welfare departments, public health departments, and private non-profit agencies

addressing problems associated with poverty – may have relevant records. In particular,

one should look for the client’s parental dysfunction, which may have led to temporary or

permanent loss of custody of the client and/or siblings, or investigations into problems that

assertions that such offenses show how our clients are deserving of death.

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could have led to the loss of custody. Parental dysfunction is not only a risk factor for

intellectual and adaptive functioning.

charges, medical and mental health records are hard to find, or are simply unavailable.

Medical and mental health care is often not available to our clients or their families.

Mental health records are more likely to exist if our clients were “problem children” who

were taken into the state school system (for children with mental retardation), or into the

juvenile system, through which mental retardation may have been diagnosed or in some

way documented. State mental health/mental retardation agency records should always be

searched for any record of a client, his or her parents, or his or her siblings. Parental

dysfunction is particularly important. Thus, it is imperative to ensure that the parents are

included in such searches.

The 2002 AAMR manual discusses numerous “risk factors” – “biomedical, social,

behavioral, [and] educational” – that are frequently associated with mental retardation. A

What is clear is that “the impairment of functioning that is present when an individual

meets the criteria for a diagnosis of mental retardation usually reflects the presence of

factors and mental retardation, it is important to identify any risk factors in your client’s

history. Risk factors are categorized by the stage of development in which they are likely

client’s and/or his/her parents’ medical records, mental health/mental retardation records,

and social welfare agency records. They are also likely to emerge during interviews with

people knowledgeable about the client’s family. These risk factors are the following:

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chromosomal

disorders

single-gene disorders

syndromes

metabolic disorders

cerebral dysgenesis

maternal illness

parental age

poverty

maternal

malnutrition

domestic violence

lack of access to

prenatal care

parental drug abuse

parental alcohol

abuse

parental smoking

parental immaturity

parental cognitive

disability without

supports

lack of preparation

for parenthood

records and by the same people as the factors during the prenatal period. The risk factors

during this period are the following:

prematurity

birth injury

neonatal disorders

lack of access to

birth care

parental rejection of

caretaking

parental abandonment

of child

lack of medical

referral for

intervention

services at

discharge

in the medical and mental health records of the client or his/her family members, unless the

client has suffered certain acute or chronic medical conditions that demand some sort of

risk factors, may cause mental retardation, and are likely to be discovered in the

investigation of any client’s life history. Social welfare agency records, school records,

juvenile records, as well as interviews of people with direct knowledge of the client and

his/her family are likely sources of information. These risk factors include the following:

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traumatic brain injury

malnutrition

meningoencephalitis

seizure disorders

degenerative

disorders

impaired childcaregiver

lack of adequate

stimulation

family poverty

chronic illness in

the family

institutionalization

child abuse and

neglect

domestic violence

inadequate safety

measures

social deprivation

difficult child

behaviors

impaired parenting

delayed diagnosis

inadequate early

intervention

services

inadequate special

education services

inadequate family

support

Once you have conducted the screening investigation described here, and you have

uncovered evidence consistent with your client having mental retardation, there are two

possible avenues to pursue. The first is to use what has been uncovered to try to negotiate a

plea bargain, which removes capital punishment as a sentencing option. The second is to

move to the next stage of investigation, in which the evidence is fully developed, thus

assisting in the determination of whether mental retardation is a viable basis for defending

your client against the death penalty, and for challenging other aspects of the prosecution’s

case and the trial proceedings.

There is a potential disadvantage to approaching the prosecutor with evidence of your

client’s mental retardation before you have completed the investigation necessary to prove

that your client has mental retardation. The prosecutor will be given early discovery and

may, as part of the negotiation process, insist that a prosecution expert test your client. On

the other hand, there is a profound advantage for your client if the prosecutor is persuaded

to remove the death penalty from the case. To determine whether this option is worth

pursuing, you need to consider the following factors:

diagnostic criteria?

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behavior were there during the client’s developmental period?

Your answers to these questions will help you decide whether to take the risk of going to

the prosecutor without your case being fully developed.

If the decision is to not to approach the prosecutor, or if alternatively the prosecutor rejects

your appeal to drop the death penalty, you now need to move on to the next stage of

investigation.

screening test, test not normed for individuals who have mental retardation, test out of line with consistently

standard error of measurement for test in question is greater than 5 points).

expert examines one of our clients, that expert will find some way to disagree with what we proffer. You

need to consider this factor, because an invitation to the prosecutor to take death out of the case is likely to

provoke an evaluation of your client by a prosecution expert.

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4 INVESTIGATION: DEVELOPING THE EVIDENCE OF MENTAL

RETARDATION

This level of investigation will allow you to determine whether mental retardation is a

viable basis for defending your client against the death penalty and for challenging other

aspects of the prosecution’s case and the trial proceedings.

One of the first steps in this level of investigation is to engage the services of a mental

retardation expert. People who are experts in mental retardation come from a variety of

educational backgrounds such as psychology, education, social work, or law. What all

have in common is a wealth of experience in working with people who have mental

retardation. Their experience will usually include diagnosis, but will also often include

designing and providing services to people with mental retardation. Their assistance is

critical because they are adept at understanding and assessing limitations in adaptive

behavior and at assessing whether the overall picture of adaptive behavior – both

limitations and strengths – is indicative of mental retardation.

There is no substitute for this kind of expertise. Although good clinical psychologists or

neuropsychologists will be needed for IQ testing, they will rarely be experts in mental

retardation. Accordingly, they generally will not have the ability to discern, from the

client’s life history, the crucial features of significant limitations in adaptive behavior that

is the bedrock of diagnosis.

The importance of this advice cannot be overstated. Mental retardation experts and mental

health experts rarely overlap. Most psychiatrists will have studied mental retardation in

their training, but most will not have had relevant experience in diagnosing or providing

services for people with mental retardation. Similarly, most psychologists lack relevant

experience. They can offer IQ testing services but, unless they have demonstrable

experience and expertise in diagnosing and working with people with mental retardation,

they cannot fill the need for a mental retardation expert. Even if you have confidence in a

particular psychiatrist or psychologist because of their high-quality work for a mentally ill

client in another case, do not use them (except for, perhaps, the psychologist for IQ

testing).

The issue of whether to conduct IQ testing can be problematic if the life history

investigation reveals IQ scores consistent with mental retardation. If the client’s historical

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record includes IQ testing with then-current editions of reputable and reliable instruments –

for example, the Wechsler Intelligence Scale for Children (WISC), the Wechsler Adult

Intelligence Scale (WAIS), the Stanford-Binet Intelligence Scale, the Kaufman Assessment

Battery for Children – and investigation reveals that the tests were administered by

qualified individuals, under suitable conditions, and were scored properly, the historical

scores will be extraordinarily valuable.

If the historical scores do not meet all these criteria – the use of then-current editions of

tests, and the use of reputable and reliable tests, administered by qualified individuals,

under suitable conditions, and properly scored – they have less value and the need for

In any event, current testing should always be given serious consideration. In most cases,

the prosecution will ask for access to the client to conduct an IQ test. In such

circumstances, it may be advantageous for a defense expert to administer the test first. This

may make prosecution testing unnecessary and impractical, because the well-established

score that the prosecution expert cannot rely on. This requires the prosecution expert to

rely on the testing conducted by the defense expert, or at least to rely on the raw scores

If testing is conducted, the test instrument that is used must be one of the most reputable

instrument in the United States for assessing intellectual functioning.” 536 U.S. at 309 n.5.

The WAIS-III and Stanford-Binet-IV are the most reputable and reliable test instruments

from distraction, with a table or desk that allows ample room for the test materials, with the subject and

administrator able to pass materials back and forth and to see each other and be able to communicate freely,

and with the time available as prescribed by the test protocol. Every reliable IQ test requires individual

administration. No “group” test (administered to a group of people) can yield reliable results.

mental retardation, such as the Revised Beta. High scores on tests such as the Revised Beta are likely

unreliable, as are scores of 70 or lower. Consult with your mental retardation expert and psychologist about

the reliability of historical tests as well as the choice of tests for current administration. A good reference on

IQ tests, as well as other psychological tests, is Barbara S. Plake, James C. Impara, Robert A. Spies, Barbara

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At the outset, it is important to remember that the assessment of adaptive behavior

limitations is not only necessary, but crucial to the diagnosis of mental retardation.

Without a clinical conclusion that your client has significant limitations in adaptive

behavior, s/he will not be found to have mental retardation. Cases have been lost because

the evaluation focused solely on the IQ, even though there was available evidence of

limitations in adaptive behavior. Limitations in adaptive behavior, manifested during your

client’s development period, also provide independent and irrefutable corroboration of

his/her significant limitations in intellectual functioning. Developing evidence of these

limitations is, therefore, the lynchpin of proving that your client has mental retardation.

The assessment of adaptive behavior involves two methodologies: (a) the use of

standardized adaptive behavior measures normed on the general population, including

people with disabilities and people without disabilities; and (b) the use of clinical judgment

in analyzing multiple additional sources of data. The AAMR calls for the use of both

methodologies. AAMR 2002, at 74-75, 85-86.

Standardized adaptive behavior measures – such as the AAMR Adaptive Behavior Scale-

School and Community, Vineland Adaptive Behavior Scales, Scales of Independent

at 77, 88-90 – measure some adaptive behaviors in all three domains of adaptive behavior,

client’s gullibility and naiveté, for example, are not covered on any standardized measure

standardized measures, owing to the particular community environment that the client has

standardized adaptive behavior measure for people who have been incarcerated for years

on death row, or even in a general prison population.

For these reasons, AAMR recommends that data from other sources be utilized in addition

to the data obtained from a standardized measure of adaptive behavior:

Just as standardized measures of intelligence do not fully reflect what is

considered to be intellectual capacity; it is unlikely that a single standardized

measure of adaptive behavior can adequately represent an individual’s

ability to adapt to the everyday demands of living independently....

The addition of different sources of data provides a basis for more informed professional

judgment by providing a context within which to evaluate the meaning of a score obtained

from a standardized measure of adaptive behavior. This approach is the preferred option to

the sole reliance on a single measure of adaptive skills and to a single evaluator or rater.

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AAMR 2002, at 75, 86.

In our clients’ cases, the additional data will be derived from the comprehensive life history

One further point as regards standardized measures of adaptive behavior should be noted.

These measures are scored on a scale similar to IQ tests, so that two or more standard

deviations below the mean (the mean is generally a score of 100) is the measure of

“significance” in diagnosing the adaptive behavior limitations component of mental

one of three domains (conceptual, social, practical) being two or more standard deviations

being two or more standard deviations below the mean. AAMR 2002, at 74, 77-78. This

principle is necessary to continue to include people who were formerly classified as having

mild mental retardation within the diagnosis of mental retardation:

[S]imulation studies have demonstrated that the probability of a person

scoring two standard deviations below the mean on more than one domain

would be so low that almost no one with an IQ in the upper mental

retardation range would be identified as having mental retardation.

Achievement tests are measures of academic learning that are routinely given during the

course of most children’s school careers in the United States. Scores are typically reported

as the grade level at which particular academic skills are performed. Thus, for example, a

client’s reading ability may have been measured at the level of a third grader when s/he

was in the sixth grade.

Achievement test scores have a significant role in the diagnosis of mental retardation.

First, they provide important corroboration of IQ levels. Second, they document some of

As previously noted, most people with mental retardation cannot achieve higher than the

sixth grade level in the academic skills measured by achievement tests. If your client’s

historic achievement test scores were never higher than the sixth grade level of functioning,

peculiarly vulnerable to overstating their abilities. Utilization of information from the life history

investigation, most of which is derived from sources other than the client, thus overcomes the need for

determining whether the client is providing reliable information. For this same reason, the sources of the

information that is used in standardized adaptive behavior measures should be someone other than the client.

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this is powerful corroboration of the validity of IQ scores at 75 or below, and of the

significance of the adaptive behavior limitations directly measured by achievement tests.

If, on the other hand, the historic achievement test scores are consistently higher than the

sixth grade level of functioning, this does not rule out mental retardation, but it can raise

questions. For such a client, limitations in adaptive behavior, other than those measured by

achievement tests, must be present and well-documented, and IQ scores on reliable tests

must consistently be 75 or below.

Onset during the development period, the third diagnostic element of mental retardation, is

relatively straightforward. It requires that the signs of mental retardation – significantly

sub-average intellectual functioning and significant limitations in adaptive functioning – be

these signs must be “apparent.”

A measured IQ score of 75 or below prior to age 18, or a diagnosis of mental retardation

prior to age 18 is not required to fulfill the element of onset during the development period.

Obviously, such facts are immensely helpful in proving mental retardation, but they are not

essential.

It does however, require that the disabling effects of mental retardation manifest in the

client’s adaptive behavior prior to age 18. The significant limitations in adaptive behavior

that are characteristic of mental retardation must be apparent during the developmental

period.

This reemphasizes the absolute necessity of developing a comprehensive life history of the

client. While some items in the standardized measures of adaptive behavior will examine

behaviors retrospectively, during the developmental period, many items will examine

present-day functioning. Thus, the source of the most critical evidence of limitations in

You will likely need two evaluating experts: a mental retardation specialist and a clinical

psychologist. We have discussed the mental retardation specialist above. Since many

important, related role as well. It provides a very persuasive refutation of any accusation or insinuation of

to have the limitations in adaptive behavior that would lead a court years later in a capital prosecution to

determine that the person has mental retardation. Evidence of limitations in adaptive behavior that appear

during the developmental period is thus self-authenticating.

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mental retardation specialists do not perform psychological testing, a good clinical

psychologist is often needed to conduct the intelligence testing. (The other “test,” the

standardized measure of adaptive behavior, will usually be administered by the mental

retardation specialist in the course of assessing limitations in adaptive behavior.) The

psychologist needs to have familiarity with the diagnosis of mental retardation so as to be

able to support the diagnosis of mental retardation in testimony, but need not be a mental

retardation specialist.

For purposes of later testimony in an evidentiary hearing, it is imperative that prior to

engaging the services of the two experts their licensing status is determined. Most clinical

psychologists will be licensed in the state in which they practice. If this expert is from out

of state, s/he may need to be associated with a local licensed clinical psychologist to

retardation experts often are not licensed as clinical psychologists, either because they are

not clinical psychologists or, though they are, they do not have a practice in clinical

psychology. However, they may be licensed under other specialties that permit them to

diagnose mental retardation. The critical matter is that the mental retardation specialist be

able, under applicable state licensing laws, to diagnose mental retardation, because it is

preferable for this expert to make and defend the diagnosis. If, in your jurisdiction, only

licensed clinical psychologists or psychiatrists can diagnose mental retardation, your

clinical psychologist may need to make and defend the diagnosis. In such jurisdictions, it

is important that you select a clinical psychologist who has experience in diagnosing

mental retardation and can collaborate – and is accustomed to collaborating – with mental

retardation specialists in diagnosing mental retardation.

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5 ISSUES CONCERNING THE DIAGNOSIS

In the course of litigating any claim which requires you to establish that your client has

mental retardation, issues concerning the diagnosis will frequently arise. The most

frequently-recurring issues are addressed here.

As already explained, even though the cutoff IQ score for mental retardation is generally 70,

because of the five point measurement error in the WAIS-III and most other tests, a score up

to 75 meets the significantly sub-average intellectual functioning element of the diagnosis of

mental retardation.

The standard error of measurement must be accounted for in the administration of an IQ test

for the following reasons:

[T]est measures themselves are imperfect and can introduce an element of

error to test scores. In the absence of perfect reliability, a person’s score on

a test will likely vary somewhat across evaluations, even when no true

underlying change has occurred. The less reliable a test, the more the retest

scores are likely to deviate from original scores due to random fluctuations

is inversely related to the reliability of the test and pertains to the theoretical

distribution of random variations in observed test scores around an

individual’s true score.

Lineweaver, T., and Chelune, G.J., “Use of the WAIS-III and WMS-III in the Context of

Serial Assessments: Interpreting Reliable and Meaningful Change,”in David S. Tulsky (ed.),

For the WAIS-III, one of the most reliable IQ tests, the standard error of measurement is five

points, meaning that if the test were administered to the same individual 100 times without

any practice effect improving the score (which is impossible), 95 times out of 100 the

person’s full scale IQ score would fall in the range of plus or minus five points from the

age of the person tested. AAMR 2002, at 61. However, if only one standard error of measurement is utilized

confidence level is the standard confidence level that is utilized in assessing intelligence in the diagnosis of

measurement is plus or minus five points.

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Despite these principles, courts have been inclined to disregard measurement error if the

client’s obtained IQ score is between 70 and 75, finding that the client’s IQ is above the

cutoff for sub-average intellectual functioning. Where two successive test administrations

(disregarding standard measurement error altogether and accepting that the “true” score is

within the range of 72-74 established by the two scores obtained on WAIS-III

administrations one year apart).

The above inclination is not supported by any science and must be attacked as unfounded in

fact. As the “black letter” rule of the AAMR sets forth:

In the 2002 AAMR system, the ‘intellectual functioning’ criteria for

diagnosis of mental retardation is approximately two standard deviations

instruments used and the instruments’ strengths and limitations.

AAMR 2002, at 58 (emphasis supplied).

A “test-retest” situation, or “serial assessment,” occurs any time a client is again given the

same IQ test. There is a known “practice effect” in such a situation – usually resulting in a

higher full scale score on the retest – that diminishes over time and varies with other

demographic variables such as the client’s age, education, and gender. Basso, M.R., Carona,

F.D., Lowery, N., & Axelrod, B.N., “Practice Effects on the WAIS-III Across 3- and 6-

Month Intervals,” 16(1) The Clinical Neuropsychologist 57-63 (2002). The average practice

effect for the WAIS-III is 4.51 points, and that effect does not appear to be reduced

In a test-retest situation, not only must the practice effect be taken into account when

for. The standard error of measurement still applies in connection with the second test. As

explained in Lineweaver, T., and Chelune, G.J., “Use of the WAIS-III and WMS-III in the

In the context of serial evaluations, simple difference scores are particularly

vulnerable to the influence of measurement error. Difference scores, in

essence, combine the measurement error associated with scores from each of

the two evaluations, and thereby magnify the impact of measurement error

on test results. Thus, in order to interpret the clinical significance of change

scores, they must be interpreted in light of their measurement errors.

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the standard measurement error, Briseno’s true IQ score fell within the range of 67-77, thus

satisfying the sub-average intellectual functioning component of mental retardation. Taking

Briseno’s retest score was 85 or lower, his IQ score still fell within the range necessary to

establish the sub-average intellectual functioning component of mental retardation.

In some cases, a client who has mental retardation will, sometime in the past, have obtained

an IQ score higher than 75. In such cases, it must be determined how that could have

occurred. If the client does have mental retardation, there will be an explanation. Among the

possible explanations are:

was inadequately trained or failed to follow the prescribed test protocol

chance to correct answers), or because the conditions during which the test

was given were substantially different from the prescribed conditions

(leading the administrator, for example, to compromise the test-giving or -

scoring protocol).

of an otherwise reliable test (on which scores tend to be inflated), because it

was a group screening test, because it was a test not normed for individuals

who have mental retardation, or because it was an unreliable test with a

large standard error of measurement.

achievement tests and with all other IQ scores – in short, the test is an

aberration that cannot otherwise be explained but that has no relevance

because it is inconsistent with all other data, including other IQ test scores,

achievement tests, adaptive behavior limitations, and onset during the

client’s developmental period.

can be obtained, if needed, from Richard Burr. They originate from a report prepared by Dr. Gordon

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The “accepted definition of malingering is the deliberate fabrication or gross exaggeration of

psychological or physical symptoms to achieve a recognized external goal.” Richard Rogers

Questions of malingering occasionally arise with respect to IQ test scores in assessing mental

retardation. On earlier editions of the WAIS (WAIS and WAIS-R), research has shown that

the WAIS test data “are not effective at the detection of malingering.” Rogers & Shuman, at

114. As of the publication date of Rogers & Shuman, the WAIS-III had not been evaluated

Neither Rogers and Shuman, nor other researchers, have found a need to explore the question

of malingering in mental retardation, because the limitations in adaptive behavior, which

must appear before age 18, are not matters that can be fabricated or exaggerated. As they

explain, “The feigning of mental retardation will be de-emphasized; school records and past

achievement tests often provide important corroborative data about spurious reports of

“Mental Retardation and the Death Penalty: A Guide to State Legislative Issues,” 27 Mental

& Physical Disability Law Reporter 11, 13-14 (January/February 2003):

The issue of malingering, which has received considerable attention in the

clinical literature regarding mental illness, has not proven to be a practical

problem in the assessment of individuals who may have mental retardation.

But any concerns that an individual could somehow manage to feign

cognitive impairment, undetected by clinical evaluators, should be dispelled

by the fact that such deception would have had to begin during the

individual's childhood. There are no reports in the clinical literature

indicating that this is a practical problem in the assessment of individuals

who are thought to have mental retardation.

(Footnote omitted).

Even though there is no need to test separately for malingering in mental retardation cases,

Rogers and Shuman note that it is useful, in conjunction with intelligence testing, to

additionally test with “specialized measures that focus on bogus memory deficits.” Rogers &

Shuman, at 105. Such tests are likely to detect any intent on the part of the patient to

operate on the principle called the “floor effect,” which presumes that nearly everyone can

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answer the items on the test but that malingerers will not know this and, in keeping with their

AAMR 2002 makes a subtle but important point about the evaluation of adaptive behavior:

One would assume that adaptive behavior is evaluated in relation to contexts

typical of the individual’s age peers. However, in some cases, typical

behavior is observed in ‘atypical’ environments, such as residential or

educational programs that primarily serve people with disabilities. This

disconnect must be taken into account in the clinical interpretation of scores.

Thus, in the past a client may have functioned relatively well at a residential home, precisely

because s/he was not required to tackle the life challenges that would be faced outside such a

setting – getting to work on time, making change, paying bills, planning ahead, etc. This

passage makes clear that the assessment of adaptive functioning must be undertaken on the

basis of skills required by peers in typical settings within the outside world. This is

especially relevant for clients who have been incarcerated before, and who appeared to adapt

Such a structured environment is “atypical” in that it does not require a high level of adaptive

functioning. Functioning without significant limitations in such an environment does not

mean that the client does not possess significant limitations in adaptive behavior.

One of the five fundamental assumptions underlying the current understanding of mental

retardation is that “[w]ithin an individual, limitations often coexist with strengths.” AAMR

2002, at 1.

This means that people with mental retardation are complex human beings

who likely have certain gifts as well as limitations. Like all people, they

often do some things better than other things. Individuals may have

capabilities and strengths that are independent of their mental retardation.

These may include strengths in social or physical capabilities, strengths in

second edition (MMPI-2) – which may be useful for detecting malingering in some people – is decidedly not

the Minnesota Multiphasic Personality Inventory (MMPI) to Identify Malingering Mental Retardation,” 42

Mental Retardation 151-153 (2004).

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some adaptive skill areas, or strengths in one aspect of an adaptive skill in

which they otherwise show an overall limitation.

This fundamental assumption is why, as we have noted previously, the assessment of

adaptive behavior for purposes of diagnosis must be focused on the client’s limitations

rather than strengths. Evaluating the significance of limitations within the client, calls for

an overall assessment of strengths and limitations. However, limitations in adaptive

behavior cannot be ruled out by focusing solely or primarily on what the client can do well.

As Professor Ellis explains:

The focus in evaluations (and ultimately adjudications) under the adaptive

prong must remain focused on the individual's limitations, rather than any

skills he or she may also possess. AAMR and other clinical experts

emphasize that the presence of skills cannot preclude the appropriate

diagnosis of mental retardation. In the most recent edition, the definition of

mental retardation is prominently accompanied by the admonition that

MENTAL RETARDATION (2002), supra note 21, at 1 (emphasis

20, at 1 (‘Specific adaptive limitations often coexist with strengths in other

adaptive skills or other personal capabilities.’). The skills possessed by

individuals with mental retardation vary considerably, and the fact that an

individual possesses one or more that might be thought by some laypersons

as inconsistent with the diagnosis (such as holding a menial job, or using

public transportation) cannot be taken as disqualifying. The sole purpose of

the adaptive prong of the definition for the criminal justice system is to

ascertain that the measured intellectual impairment has had real-life

consequences. Thus, the presence of confirming deficits must be the

diagnostician’s focus.

One of the most insidious ways that this principle is violated by prosecution witnesses is in

declaring that your client has “street smarts” and, therefore, no significant limitations in

adaptive behavior. Many of our clients do have something that might be referred to (with

many negative connotations) as “street smarts.” The client may be able to get to where

they want to be, obtain assistance from friends when needed, acquire food, shelter and

clothing and plan, carry out and occasionally “get away” with crimes – in short, they can

survive. The behaviors required to undertake the above tasks are, in a sense, “strengths” in

that they are somewhat adaptive. An unskilled or biased evaluator might find such skills

especially significant because they involve coping in settings that most educated, middle

class people (such as psychologists or lawyers) would find hostile, unfamiliar and daunting.

However, viewing such survival skills as necessarily meaning that a person is “street

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Issues Concerning the Diagnosis Page 39

basic question: Why are people consigned to this kind of life in the first place? Is it

because they cannot read or perform simple math well enough to obtain a job that pays a

living wage? Is it because they cannot cope with even the most minor of conflicts,

becoming angry or frustrated, consequently leaving their job as soon as anyone criticizes

their performance? Is it because they cannot conform to the demands of a work schedule;

are they unable to plan, unable to get enough sleep or even unable to get up each morning

at the same time and actually get to work? Is it because they cannot learn how to perform

the series of tasks required to maintain and operate a machine which would allow them to

obtain more gainful employment?

“Street smarts” are thus analogous to the maladaptive behavior that AAMR 2002 declares

cannot be used to establish limitations in adaptive behavior, but often point to significant

(and legitimate) limitations in adaptive behavior:

[T]he function of inappropriate, or maladaptive, behavior may be to

communicate an individual’s needs, and in some cases, may even be

considered ‘adaptive.’ Recent research on the function of behavior

problems in people with severe disabilities ... demonstrates that such

behavior may be an adaptation judged by others to be undesirable, but often

representing a response to environmental conditions and, in some cases, a

lack of alternative communication skills.

AAMR 2002, at 79.

Therefore, having “street smarts” may evidence some strengths in adaptive behavior, but

such abilities merely divert attention from the significant limitations that our clients have in

other domains of adaptive functioning. The reliance on a client’s “street smarts” to declare

that s/he does not have mental retardation is nothing more than the process of overlooking

limitations in favor of strengths.

There is some overlap between the disabling behaviors associated with mental retardation

and the signs of Antisocial Personality Disorder (APD):

environments, which might in some circumstances be seen as similar to

another diagnostic criterion for APD – “reckless disregard for safety of self

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Issues Concerning the Diagnosis Page 40

employment and paying their bills or meeting other financial obligations,

which might be seen as similar to another diagnostic criterion for APD –

“consistent irresponsibility, as indicated by repeated failure to sustain

of reasons related to their limitations, for example, an inability to restrain

impulses, vulnerability to victimization and marginalization, poor

communication skills, and sensitivity to accusations of being stupid. The

resulting behavior might be seen as similar to another diagnostic criterion

for APD – “irritability and aggressiveness, as indicated by repeated physical

can result in their not being sensitive to, or trying to ameliorate hurtful

things done or said to others. This impaired behavior might be seen as

similar to another diagnostic criterion for APD – “lack of remorse, as

indicated by being indifferent to or rationalizing having hurt, mistreated, or

retardation may fall into a pattern of repeating petty crimes such as

shoplifting or minor breaking and entering offenses, and with this appear to

meet one other diagnostic criterion for APD – “failure to conform to social

norms with respect to lawful behaviors as indicated by repeatedly

This overlap provides fertile ground for prosecutors and their experts to transform

happens in your case, it can be countered in two ways. First, by careful and thorough

examination of the facts, a knowledgeable mental retardation expert can often factually

differentiate limitations in adaptive behavior from behaviors that seem on the surface to

DSM-IV-TR, at 47,

The diagnostic criteria for Mental Retardation do not include an exclusion

criterion; therefore, the diagnosis should be made whenever the diagnostic

criteria are met, regardless of and in addition to the presence of another

disorder.

Even if your client has APD, if the diagnostic criteria for mental retardation have been met,

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Issues Concerning the Diagnosis Page 41

constitutional and procedural safeguards that become applicable because of his or her

disability.

It is tempting to believe that you will be able to establish that your client has mental

client has mental retardation is a heavy burden, especially now that the consequences in a

capital case are so enormous. Defense counsel (and defense experts) must anticipate that

the prosecution will attack and seek to minimize even seemingly conclusive evidence of

mental retardation, as well as to divert the court's attention from the facts that actually

establish whether a defendant does or does not have this disability.

To make the best case that a client has mental retardation, it is imperative to integrate every

factual detail of the client’s life into a story about the life of a disabled person, whose

disability has affected and constrained every facet of his or her life. To do this, it is

necessary to present not only the hard data from tests and records, but also the more

qualitative evidence of human experience – the small stories and incidents that, together,

weave the tapestry of the client’s life, and reveal a person with mental retardation. Within

this tapestry, there will be strengths and abilities, but there will always be limitations: failed

perceptions; failed relationships with friends who gradually withdraw; repeated mistakes;

impulses that are naively acted upon without constraint; vulnerability to mere suggestion

by others; victimization by more calculating peers; inability to keep track of time, places

and promises; the inability to obtain a job; to keep or advance within a job; the inability to

plan for the future and obtain goals; feeling distressed when treated as stupid; the pain of

isolation and loneliness. The client’s story cannot be a dry, clinical presentation of a

“disorder.” It has to be an emotional presentation of a life limited in the particular ways

that mental retardation limits – diminishing (though not eliminating) the wonder and

possibility of being human.

By presenting the case in this manner, counsel may be able to guard against the biased

assumption that because the client committed a murder, he must be malingering, “street

will show its true value as a vital precedent in excluding the death penalty and saving the

lives of defendants with mental retardation.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Part II

Page 43

PART II

PART II ............................................................................................................................................................43

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

execution of a mentally retarded defendant is prohibited by the Eighth Amendment, it

neither adopted a single definition of mental retardation nor proscribed procedures for

insane, and left “to the State [s] the task of developing appropriate ways to enforce the

(quoting 477 U.S. at 405, 416-17).

adequately encompass the class of persons the Supreme Court intended to

requirements?

are there limits on the permissible scope of the examination?

rendering the scores of questionable reliability?

question?

retardation question?

retardation examination/hearing be used against the defendant at either the

guilt or sentencing phase of the trial?

condition was not documented during the developmental period?

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Although the United States Supreme Court did not adopt a single definition of mental

retardation, the Supreme Court made approving references to the definitions employed by

DSM-IV and the AAMR. See Part I of the manual for a complete description of these

definitions. If a state court adopts or employs an overly restrictive definition of mental

Texas provides an example of this. At the time of publication, the Texas legislature has

stepped into the void and adopted temporary judicial guidelines for handling such claims.

opinion, the court framed the question of appropriate definition as follows: “We . . . must

define that level and degree of mental retardation at which a consensus of Texas citizens

244826, * 3. This is a flawed view of the freedom provided to the states by the Supreme

(Miss. May 20, 2004) (after reviewing majority opinion and dissents, Mississippi Supreme

execution to all mentally retarded persons.”)

Despite this pronouncement regarding the appropriate source for a definition, the Texas

Court of Criminal Appeals never actually resolved the question of definition. Because both

parties, as well as the trial court, had utilized the AAMR definition, the appellate court

concluded it would follow that definition, or the one contained in the Texas Health and

statutory definition.

Regarding the adaptive functioning prong of the mental retardation definition, the Texas

Court of Criminal Appeals went on to identify some “evidentiary factors” it believed

“factfinders in the criminal trial context might also focus upon in weighing evidence as

These factors were:

(1) whether those who knew the defendant best during his developmental stage

thought he was mentally retarded at the time and, if so, acted in accordance

with that determination;

general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the

developmental period.” “‘Sub-average general intellectual functioning’ refers to measured intelligence on

standardized psychometric instruments of two or more standard deviations below the age-group mean for the

tests used.” “‘Adaptive behavior’ means the effectiveness with or degree to which a person meets the

standards of personal independence and social responsibility expected of the person's age and cultural group.”

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

(2) whether the defendant formulates plans or acts impulsively;

(3) whether the defendant is a follower or a leader;

(4) whether the defendant’s conduct in response to external stimuli is rational

and appropriate, even if not socially acceptable;

(5) whether the defendant is able to respond coherently and rationally to oral or

written questions or whether his responses wander from subject to subject;

(6) whether the defendant able to hide facts or lie effectively to protect his or

others’ interests; and

(7) “Putting aside any heinousness or gruesomeness surrounding the capital

offense, whether the commission of that offense required forethought,

planning, and complex execution of purpose.”

Counsel litigating in Texas are obviously well advised to develop evidentiary support for

these factors. Counsel should also be prepared, however, to attack the use of the factors if

they are undermining the showing of mental retardation. As discussed in the first part of

the manual, adaptive functioning has a specific meaning in the context of mental

definitions that exclude persons who would be found mentally retarded in other contexts or

jurisdictions.

At the time of publication, Mississippi, like Texas, is without a statute implementing

however, that a defendant cannot be adjudged mentally retarded under the Eighth

Amendment without an opinion from a mental retardation expert that the defendant is not

malingering, as demonstrated through administration of the Minnesota Multi Phasic

retardation expert concludes that the MMPI-II or other such “testing,” is unnecessary

and/or inappropriate in order to render a diagnosis of mental retardation, counsel must

“clarif[ied] its position by stating that the expert should use the MMPI-II, and/or any other tests and

procedures permitted under the Mississippi Rules of Evidence, and deemed necessary to assist the expert and

1118688, *13 fn. 19.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Many states do have statutes that expressly deal with mental retardation and capital

punishment. The definitions of mental retardation that have been adopted by the various

states do vary to some degree. Appendix Two includes the statutes in existence at the time

of publication. Some, like the Arizona Revised Statutes, § 13-703.02, include an IQ score

that might function as a cut off. Under that law, mental retardation is generally defined as

“a condition based on a mental deficit that involves significantly sub-average general

intellectual functioning, existing concurrently with significant impairment in adaptive

behavior, where the onset of the foregoing conditions occurred before the defendant

reached the age of eighteen.” The statute then further defines “significantly sub-average

general intellectual functioning” to mean “a full scale intelligence quotient of seventy or

lower,” but “[t]he court in determining the intelligence quotient shall take into account the

(“‘Significantly sub-average general intellectual functioning’ means an intelligence

quotient of seventy (70) or below.”)

Arizona mandates that an IQ test be administered in every case where a notice to seek the

death penalty is filed. If the prescreening psychological expert determines that the

defendant's IQ is higher than 75, “the notice of intent to seek the death penalty shall not be

dismissed on the ground that the defendant has mental retardation.” If the prescreening

psychological expert determines that the defendant's intelligence quotient is 75 or less, one

or more additional experts are to be appointed in order to determine whether the defendant

has mental retardation. If the subsequent examinations result in test scores above 70, taking

into account the margin of error for the test administered, the notice of intent to seek the

death penalty will not be dismissed.

If this statute, or ones like it, function to exempt from protection defendants who have

2004) (defendant may not receive mental retardation hearing without providing affidavit

from expert opining that defendant has combined IQ of 75 or below.)

Other statutes do not include any specific numbers, and instead rely on a more general

definition of mental retardation. The California statute, for example, simply states that

“‘mentally retarded’ means the condition of significantly sub-average general intellectual

functioning existing concurrently with deficits in adaptive behavior and manifested before

the age of eighteen.” California Penal Code § 1376. At the time of publication, there is a

case pending in the California Court of Appeal which raises the questions, among others,

what constitutes mental retardation for purposes of Pen. Code § 1376, and what constitutes

Utah has a rather unique statute, which defines mental retardation for purposes of an

exemption from execution as:

the defendant has significant sub-average general intellectual functioning

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

intellectual functioning and the significant deficiencies in adaptive

functioning under Subsection (1) are both manifested prior to age 22.

As discussed above regarding the evidentiary factors created by the Texas Court of

Criminal Appeals, counsel must bring an Eighth Amendment challenge to any statute or

court decision that adopts a definition of mental retardation that is more narrow than that

which is accepted by mental health professionals nationally.

Arizona § 13-703.02 (K)(2) (onset of conditions must have “occurred before the defendant

reached the age of eighteen”); Arkansas § 5-4-618 (a)(1)(A) (onset of condition must be

“no later than age eighteen (18)”.) Some statutes, however, use the age of 22. See, e.g.,

Indiana Code 35-36-9-2; Md. Crim. L. Code Ann. § 2-202(b); Utah Code Ann. § 77-15a-

102.

Where counsel has a client whose intellectual impairment arguably developed after age 18,

but the relevant statute requires an onset before that age, counsel should look to recent

scientific studies indicating that the developmental period in fact extends beyond age 18. If

the client’s impairment falls within the newly recognized developmental period, this

information can be utilized to argue that the client does fit an accepted definition of mental

In some states, such as Louisiana, there is a different definition of mental retardation in the

provide for government services for the mentally retarded (La. Rev. Stat. § 28:381.) While

services-related statute recognizes the developmental period as lasting up to age 22.

Counsel should be prepared to challenge the less protective standard as inconsistent with

A number of the statutes include some type of presumption. In Arizona, for example, there

is a rebuttable presumption that the defendant has mental retardation if the trial court

retardation when a defendant has an intelligence quotient of sixty-five (65) or below.”); Ill.

accepted definition of mental retardation but only where “the state intends to introduce into evidence a

confession by the defendant which is not supported by substantial evidence independent of the confession.”

Utah Code Ann. § § 77-15a-101.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Rev. Statues, ch. 5, § 114-15(d) (“An intelligence quotient (IQ) of 75 or below is

presumptive evidence of mental retardation.”); Neb. Rev. Stat. § 28-105.01(3) (“An

intelligence quotient of seventy or below on a reliably administered intelligence

quotient test shall be presumptive evidence of mental retardation.”); New Mexico Stat.

Ann. § 31-20A-2.1(A) (“An intelligence quotient of seventy or below on a reliably

administered intelligence quotient test shall be presumptive evidence of mental

retardation.”); South Dakota Codified Laws Ann. § 23A-27A-26.2 (“An intelligence

quotient exceeding seventy on a reliable standardized measure of intelligence is

presumptive evidence that the defendant does not have significant sub-average general

intellectual functioning.”)

As for the ultimate burden and standard of proof regarding mental retardation, the statutes

vary. The Arizona statute, for example, places the burden on the defendant to establish his

mental retardation by clear and convincing evidence. Ariz. Rev. Stat. § 13-703.02(G).

Other states that utilize the clear and convincing standard of proof are Colorado, Delaware,

4209; Fla. Stat. Ann. § 921.137; and Ind. Code § 35-36-9-4. If a North Carolina defendant

seeks a pretrial judicial ruling on the question of mental retardation, the burden of proof is

also on the defendant to establish mental retardation by clear and convincing evidence.

N.C. Gen. Stat. § 15A-2005(c).

The constitutionality of the clear and convincing evidence burden of proof must be

criminal defendants to prove incompetence by clear and convincing evidence violates due

2004 WL 1119477, *2-3 (Fla. May 20, 2004) (Pariente, J., concurring) (suggesting to

constitutional problems with the statutory standard may have led the Florida Supreme

Court to omit any burden of proof in rules implementing Fla. Stat. Ann. § 921.137).

that mental retardation was established beyond a reasonable doubt. Ga. Code Ann. 17-7-

131(c)(3). A constitutional challenge to this standard of proof was rejected by the Georgia

press the constitutional argument.

In most jurisdictions, mental retardation must be established by a preponderance of the

Code § 19-2515A; Ill. Rev. Stat. ch. 5, § 114-15(b); La. Code Crim. Pro. § 905.5.1(C)(1);

Md. Crim. L. Code Ann. § 2-202(b)(2)(ii); Mo. Rev. Stat. § 565.030; Neb. Rev. Stat. § 28-

105.01; Nev. Stat. § 174.098(5)(b); N.M. Stat. Ann. § 31-20A-2.1; N.Y. Crim. Pro. Consol.

Law § 400.27(12)(a); S.D. Codified Laws § 23A-27A-26.3; Tenn. Code Ann. § 39-13-203;

Utah Code Ann. § 77-15a-104; Va. Code Ann. § 19.2-264.3:1.1; Wash. Rev. Code §

10.95.030; N.C. Gen. Stat. § 15A-2005(f) (where mental retardation is raised before the

sentencing jury, the defendant has the burden of proving that condition by a preponderance

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

burden of proof of establishing that he is mentally retarded by a preponderance of the

evidence).

In contrast, Connecticut, Kansas and Kentucky do not have a statutory burden or standard

of proof. Conn. Gen. Stat. § 53a-46a; Kan. Stat. Ann. § 21-4623 and Ky. Rev. Stat. Ann. §

532.135.

Although this argument has been rejected by some courts, until and unless this argument is

rejected by the United States Supreme Court, it should be pressed in every jurisdiction.

The Colorado statute requires mental retardation to have been documented during the

developmental period. Col. Rev. Stat. § 18-1.3-1101. The precise meaning of this

statutory requirement is not clear. It may be interpreted as simply requiring the defendant

to document through a current evaluation that the condition was present during the

developmental period. This is the interpretation that should be pressed. On the other

hand, it could be interpreted as requiring counsel to obtain documentation that was actually

prepared during the developmental period that indicates the presence of mental retardation,

for example, an IQ score of 65 received by the defendant at age 11. If the latter view

be ready to proffer expert testimony showing that the mental health community does not

recognize such a requirement prior to rendering a diagnosis of mental retardation.

The statute does allow the documentation requirement to be excused upon the showing of

extraordinary circumstances. What constitutes “extraordinary circumstances” is not further

described. Counsel without the required documentation should obviously seek to provide

a persuasive explanation for the absence of evidence, in addition to challenging the

for example, this might explain the absence of records suggesting mental retardation during

the developmental period. Alternatively, the defendant may have grown up in a

Even where there is no express requirement of documentation during the developmental

period, many courts and jurors assume, as a practical matter, that mental retardation would

have been identified at the very least by the schools. Counsel must always be prepared to

explain why the condition went unrecognized if supporting documentation in the

defendant’s background records does not exist.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

At least one of the mental retardation statutes addresses the issue of whether a defendant

may invoke the privilege against self-incrimination during a mental retardation

examination. In Colorado, “[t]he defendant shall have a privilege against selfincrimination

that may be invoked prior to or during the course of an evaluation under this

section. A defendant's failure to cooperate with the evaluators or other personnel

conducting the evaluation may be admissible in the defendant's mental retardation

hearing.” Colo. Rev. Stat. § 18-1.3-1104 (3).

Other statutes address this potentially thorny issue in a different manner. They specify

when, if at all, statements made by a defendant during a mental retardation examination

may be admitted into evidence. The Kansas law, for example, provides: “No statement

made by the defendant in the course of any examination provided for by this section,

whether or not the defendant consents to the examination, shall be admitted in evidence

against the defendant in any criminal proceeding.” Kan. Stat. Ann. § 21-4623 (b). The

California statute, in contrast, provides that a statement made by a defendant during a

court-ordered examination is inadmissible in the guilt phase of the trial. Cal. Pen. Code §

1376(b)(2).

2004), an appellate court recently rejected the argument that a capital defendant was

entitled to unqualified judicial immunity for statements made to an expert in a courtordered

examination. It concluded that an “application for a mental retardation hearing is a

tactical voluntary decision made by a competent defendant with the advice of counsel.”

2004 WL 585916, *7. Thus, in the appellate court’s view, the defendant voluntarily placed

his mental state at issue, thereby waiving his Fifth and Sixth Amendment rights. The

implication of this, of course, is that a mentally retarded defendant may choose whether or

court stated “a defendant may withdraw the claim if he or she concludes it is in his or her

had raised genuine issue of mental retardation could not thereafter waive the issue). It is

arguable, however, that an attorney has an absolute duty to raise mental retardation

irrespective of the defendant’s wishes. Furthermore, because it is counsel’s obligation to do

so, irrespective of the defendant’s wishes, it is not correct to impute waivers of Fifth and

Sixth Amendment rights.

Counsel should aggressively argue that any statements made in the course of a mental

retardation examination may not be used by the prosecution for any purpose other than the

(1968) (finding it intolerable to require a defendant to surrender one constitutional right in

order to assert another, and therefore ruling that a defendant’s testify at a hearing to

suppress evidence under the Fourth Amendment may not be admitted against him in the

guilt trial).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Many of the statutes expressly permit the prosecution to request an examination of the

defendant by his or her own expert. If such an examination is requested, counsel must be

585916 (Cal. App. March 25, 2004), for example, the trial court indicated that the

prosecution expert would be prohibited from probing the events of the charged crimes. In

order to obtain a similar restriction, counsel may need to proffer an explanation from a

mental retardation expert as to why an inquiry into the crime facts would not be necessary

or appropriate in order to determine whether the defendant is mentally retarded.

expert could administer. This was rightly found by the appellate court to constitute error.

The appellate court explained:

conducted by prosecution experts must be reasonably related to a

determination of whether the defendant has a “significantly sub-average

general intellectual functioning existing concurrently with deficits in

adaptive behavior and manifested before the age of eighteen.” The mental

retardation examination must be limited in its scope to the question of

mental retardation. Thus, if requested, the prosecution must, as it was

required to do in this case, submit a list of proposed tests to be considered

by the defendant so that any objections may be raised before testing begins.

Then, upon a defense objection to specific proposed prosecution tests, the

trial court must make a threshold determination that the tests bear some

reasonable relation to measuring mental retardation, including factors that

might confound or explain the testing, such as malingering. Otherwise,

there is a danger that defendants will be improperly subjected to mental

examinations beyond the scope of the precise issue they have tendered and

their resulting waiver of constitutional rights.

trial court for a determination of whether certain tests, such as those designed to assess

psychopathic antisocial personality disorders, could properly be administered to the

defendant by the government expert. Counsel will need to work closely with his or her

mental retardation expert in order to successfully object to inappropriate and potentially

harmful testing.

Many statutes require a pretrial hearing by a judge to determine whether the defendant is

hearing to determine if the defendant has mental retardation”); Ark. Code Ann. § 5-4-618

(d)(2) (“Prior to trial, the court shall determine if the defendant is mentally retarded); Colo.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Rev. Stat. § 18-1.3-1102(2) (trial court to conduct a hearing on mental retardation motion

no later than ten days prior to trial).

Other statutes give the defendant the option of a pre-trial hearing before a judge or

the request of the defendant, the court shall conduct the hearing without a jury prior to the

commencement of the trial.”); N.Y. Crim. Pro. Consol. Law § 400.27(12)(e). Other

statutes allow a pretrial judicial determination of mental retardation only if both parties

the issue of mental retardation of a capital defendant may be tried prior to trial by the judge

alone.”); Mo. Rev. Stat. § 565.030, subsection 5 (“Upon written agreement of the parties

and with leave of the court, the issue of the defendant's mental retardation may be taken up

by the court and decided prior to trial . . . .”)

Finally, some statutes do not provide the defendant with the option of a pretrial

Gen. Stat. § 53a-46a(h); Va. Code Ann. § 19.2-264.3:1.1

If counsel believes that a pre-trial judicial hearing would be preferable to a determination

by a judge or jury that has found the defendant guilty of capital murder, counsel should

(1964) (issue of voluntariness of confession should not have been decided by the

convicting jury but should have been determined in a proceeding separate and apart from

(N.M. June 3, 2004) (rejecting argument that pretrial determination is constitutionally

required, but reading statute “flexibly” and concluding a pretrial hearing is permitted by

statute and then ordering it for all cases.)

And where a pretrial hearing is conducted, and the ruling is adverse to the defendant,

counsel may still argue that the defendant retains the right to a jury ruling on the mental

___ P.3d ___, 2004 WL 1636356 (N.M. June 3, 2004) (ruling that defendant is entitled to

submit mental retardation question to jury even after adverse finding by trial court.) Any

purported waiver of the right to a jury determination should be challenged as

to require a defendant to surrender one constitutional right in order to assert another.)

Where there is a pretrial finding that a defendant is not mentally retarded, some statutes

expressly permit the defendant to raise the issue anew in front of the sentencing jury. Ark.

Code Ann. § 5-4-618(d)(2)(A) (“If the court determines that the defendant is not mentally

retarded, the defendant may raise the question of mental retardation to the jury for

determination de novo during the sentencing phase of the trial.”); La. Code Crim. Pro. §

905.5.1 (C) (2) (“Any pretrial determination by the judge that a defendant is not mentally

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

retarded shall not preclude the defendant from raising the issue at the penalty phase, nor

shall it preclude any instruction to the jury pursuant to this Section.”); Mo. Rev. Stat. §

565.030, subsection 5 (“Upon written agreement of the parties and with leave of the court,

the issue of the defendant's mental retardation may be taken up by the court and decided

prior to trial without prejudicing the defendant's right to have the issue submitted to the

trier of fact as provided in subsection 4 of this section.”)

In Georgia, the mental retardation question is resolved by the jury during the guilt phase.

Ga. Code Ann. 17-7-131. Other statutes require that the mental retardation determination

Gen. Stat. § 53a-46a(h); Va. Code Ann. § 19.2-264.3:1.1. As noted above, counsel in such

a jurisdiction may wish to argue that a pre-trial determination by a judge is constitutionally

required.

Where the jury is required to make the finding, often the statute is silent on the

consequences of a hung jury on the mental retardation question. Counsel should argue that

30 (Okla. Crim. App. 2003)

A number of states require the judge to make the finding on mental retardation either

Rev. Stat. § 28-105.01(4). In Delaware, evidence of mental retardation is presented during

the sentencing phase, but it is the judge that makes the finding on the existence or nonexistence

of mental retardation prior to imposing sentence. Del. Code Ann. tit. 11, §

4209(d). Again, counsel may wish to argue for a pre-trial determination. Furthermore,

584 (2002), which held that a defendant is entitled to a jury finding on any fact that

increases the maximum authorized punishment. Note, however, that a number of courts

of mental retardation by a judge pretrial, counsel must consider whether to demand a jury

Procedure relating to Fla. Stat. Ann. § 921.137(4), that are to become effective October 1, 2004. These new

concurring) (discussing why a pre-trial ruling is preferable and explaining that Florida Supreme Court has

power to enact rules of criminal procedure that override statutory procedures.)

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Competence to Stand Trial Page 56

2 COMPETENCE TO STAND TRIAL

The Due Process Clause of the Fourteenth Amendment precludes the trial of a person

“whose mental condition is such that he lacks the capacity to understand the nature and

object of the proceedings against him, to consult with counsel, and to assist in preparing his

has sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding-- and . . . a rational as well as factual understanding of the proceedings

and digest the evidence, and the ability to communicate with counsel in helping prepare an

effective defense.”) “Competence to stand trial is rudimentary, for upon it depends the

main part of those rights deemed essential to a fair trial, including the right to effective

assistance of counsel, the rights to summon, confront, and to cross-examine witnesses, and

the right to testify on one’s own behalf or to remain silent without penalty for doing so.”

If the evidence in the record establishes a bona fide doubt in regard to the defendant’s

the ultimate competency determination, it cannot be relied upon to dispense with a hearing

if other evidence raises doubts about the defendant’s ability to understand the charges

While the Constitution permits a state to place the burden on the defendant to establish

(1992)), it precludes a state from requiring a defendant to prove incompetence by clear and

trial at issue, the state bears the burden of proving by the greater weight of the credible

evidence that the defendant is capable of understanding the fundamental nature of the trial

process and of meaningfully assisting his or her counsel.)

It is well recognized that mental retardation may impair a defendant’s ability to meet the

competency requirements. Although the mere fact that a defendant has significantly subaverage

intelligence is generally deemed insufficient to establish incompetence to stand

reported in the context of expert testimony that defendant was competent did not give rise to bona fide

defendant's refusal to talk to counsel or appear in court was insufficient to raise bona fide doubt as to

competence).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Competence to Stand Trial Page 57

N.W.2d at 632 (Wisc. 1997). With less extreme mental retardation, the traditional

competency test is employed.

Even where a mentally retarded defendant is able to comprehend the charges against him

and convey relevant information to counsel during out-of-court discussions, the trial

process itself often is too complicated for a mentally retarded defendant to keep pace with.

Counsel with a client who has significant intellectual deficits must ensure that the

competency examiners take into consideration the defendant’s capacity to assist in his own

defense during an actual trial. Additionally, where a mentally retarded defendant is

determined to be competent before the start of trial, counsel should be alert to indications

during trial that the pretrial ruling was in error. Courts recognize that competency is an

be alert to circumstances suggesting a change that would render the accused unable to meet

the standards of competence to stand trial.”)

There are a number of special instruments designed to assess competency to stand trial.

For example, there is a 13-point checklist known as the "McGarry Scale" or "Competency

least one standardized instrument designed to assess whether a mentally retarded defendant

is competent to stand trial: the Competence Assessment to Stand Trial for Defendants with

mentally retarded defendant needs to be conversant with all of the relevant tests in order to

ensure that an appropriate examination is conducted. Counsel should also insist that the

competency evaluation take into account the likely complexity of a capital trial.

There are numerous instances where courts have recognized that mentally retarded

for example, the Louisiana Supreme Court reversed a trial court’s finding that a mentally

retarded defendant, who had been charged with aggravated rape, was competent to stand

trial. Although the three psychiatrists who evaluated Rogers agreed that he was mentally

retarded, they disagreed about the severity of his disability. Two of the psychiatrists opined

that Rogers was not competent to proceed. In finding to the contrary, the trial court relied

entirely on the testimony of the third psychiatrist who found, somewhat equivocally, that

Rogers had the mental capacity necessary for trial.

After reviewing the record, the Louisiana Supreme Court concluded that the trial court’s

ultimate ruling was clearly erroneous. Notably, the third psychiatrist provided little factual

support for his opinions about the defendant’s abilities. Further, the basis for his opinion

was simply his “interaction” with Rogers during a one-hour interview, and that Rogers was

able to recall the following: his phone number; the city block number at his mother's house

where he resided; his place of employment; his involvement in an automobile accident in

1970 or 1971; and that he had dropped out of school in the eighth grade. In contrast, one

of the other two psychiatrists administered an intelligence test to Rogers, and also

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Competence to Stand Trial Page 58

questioned him using a judicial commitment check list and another check list

recommended by the Academy of Law and Psychiatry. This led him to conclude that

Rogers was unable to comprehend that nonconsensual sex was wrong. Further, Rogers

could not understand the defenses of alibi or insanity, and could not grasp his legal rights.

Rogers’ memory problems, according to this expert, impaired his ability to provide relevant

information to defense counsel. In addition, the expert commented on Rogers’ appearance

during court proceedings, where he seemed to be listening for only one tenth of the time.

The third expert had, among other things, asked indirect questions of Rogers in order to

estimate his judgment and intelligence. She ultimately concluded that Rogers was unable

to recall facts to assist in his defense, to maintain a consistent defense, to make critical

decisions during trial or to testify effectively in his own defense.

On this record, the Louisiana Supreme Court concluded that Rogers had not been

competent to proceed. As this case demonstrates, the proper focus of the competency

examination must be on the concepts and tasks relevant to the capital trial, rather than on

abstract skill levels or knowledge.

a mentally retarded defendant, who had been convicted of aggravated rape and aggravated

sexual assault, had been incompetent to stand trial. The defendant, who had a full-scale IQ

of 47, was described by the Tennessee Court of Criminal Appeals as an individual “whose

body functions as a forty-three-year-old man and whose mind functions as a five-year-old

unanimous expert testimony indicating that he was unable to comprehend the charges

Crim. App. Dec. 5, 2002) (trial court erred in finding defendant competent to stand trial

where all three mental health experts consistently testified that, because of her moderate

mental retardation, the defendant possessed no appreciable understanding of the judicial

proceedings. The mere fact that the defendant was able to appreciate that the charged

N.W.2d 626 (Wisc. 1997) (affirming finding by trial court that a defendant with an IQ of

At least one commentator has speculated that when dealing with mentally retarded

defendants, “forensic and judicial practice probably tilt toward findings of competence in

marginal cases.” Richard J. Bonnie, “The Competence of Criminal Defendants with

Mental Retardation to Participate in Their Own Defense,” 81 J.Crim. L. & Criminology

419, 422 (1990). This is because, according to Bonnie, a mentally retarded defendant who

is found incompetent to stand trial is unlikely to be later “restored” to competency. Thus,

an incompetency finding would be, in essence, a definitive bar to adjudication. This

possibility of bias in the competency determination may be enhanced in a capital case,

where the severity of the crime provides pressure for a conviction and harsh punishment.

“Competency to Stand Trial of Criminal Defendant Diagnosed as ‘Mentally Retarded’ Modern Cases,” 23

ALR4th 493.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Competence to Stand Trial Page 59

Counsel should be sure to investigate the prior histories of the examiners, as well as the

judge, regarding competency findings. A prior finding of incompetence in a less serious

case with a similarly impaired defendant could be used to show bias if the capital defendant

is deemed competent.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 60

3 WAIVER OF RIGHTS/GUILTY PLEAS

In order for a defendant to effectively waive his or her constitutional rights, the defendant

must be competent, and the waiver must be intelligent and voluntary. Further, under

at trial if it was taken during custodial interrogation, and the defendant had not first been

warned of his right to remain silent and his right to have counsel present during the

questioning. If the defendant challenges the admissibility of a statement, the burden is on

the prosecution to prove, by a preponderance of the evidence, that the waiver of rights was

The determination of whether a defendant is “in custody” for Miranda purposes involves

“[t]wo discrete inquiries . . . : first, what were the circumstances surrounding the

U.S. 420, 442 (1984) (“the only relevant inquiry is how a reasonable man in the suspect's

position would have understood his situation.”)

case involving a mentally retarded defendant, the Court determined that the appropriate

would have felt free to leave. The Court explained:

If, as is the case, we are concerned with what a reasonable person “in the

defendant's shoes” (citation omitted) would have thought about his or her

freedom of action, the reasonable person we envision must at least wear

comparable footwear; otherwise, we ought to simply abandon the legal

charade that the defendant's characteristics, perspective and perception

matter at all.

2003 WL 22967264, *9.

Unfortunately, this holding relied heavily on a Ninth Circuit decision involving a juvenile

(2003).

child or an adult are objective and relevant to the question of whether a reasonable person

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 61

(Fla.1999) (applying "reasonable juvenile" standard to determine whether defendant would

505, 511 (Tex.Ct.App.2002) ("We believe the facts here establish that a reasonable

1315 (1993) (custodial question entailed inquiry into what a reasonable person of the

621, 623 (1993) ("[A] reasonable 15-year-old, in the position of Robert, would not have

J.W. had not been formally arrested . . . a reasonable 14-year-old person would have been

entitled to believe . . . he was in police custody and not free to leave.")

The Illinois Supreme Court then reasoned:

The same rationale that requires modification of the reasonable person

standard to take into account the general characteristics of juveniles also

militates in favor of such a modification where the mentally retarded are

concerned. . . . Just as they are more susceptible to police coercion during

a custodial interrogation, the mentally retarded are also more susceptible

to the impression that they are, in fact, in custody in the first instance.

2003 WL 22967264, *10.

Looking to the facts of the case, the court had no doubt “that a reasonable person with

defendant's mental capacity would have believed he or she was in custody and not free to

Cir. 1990) (a reasonable person test, rather than a subjective test, is appropriate to

determine whether a mildly mentally retarded suspect was in custody.)

Court’s refined “reasonable person” approach remains viable, at least as a matter of federal

constitutional law.

The second requirement for Miranda to apply is that “interrogation” occur. Interrogation

for purposes of Miranda includes “words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police should know are reasonably

291, 301 (1980). If the police are aware of a suspect’s “unusual susceptibility to a

Div. 1996) (noting defendant’s “limited mental capacity” in finding that mentally retarded

defendant was interrogated within meaning of Miranda.) If “interrogation” is at issue,

counsel will need to investigate whether the officers who questioned the defendant had

reason to know of his intellectual disabilities.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 62

For many years there was a debate over whether a finding of competence to stand trial

necessarily resolved the question of whether a defendant was competent to plead guilty

and/or waive his or her right to counsel. The Supreme Court addressed that question in

standard applies for waiving rights than for simply standing trial.

For further discussion of competence, see the section above on competency to stand trial.

Supreme Court ruled that a waiver of Miranda rights was not involuntary under the Due

Process Clause simply because the defendant’s mental state precluded the exercise of free

will. The Court explained: “The voluntariness of a waiver of this privilege has always

depended on the absence of police overreaching, not on ‘free choice’ in any broader sense

Although mental retardation probably cannot itself render a waiver “involuntary,” it can

impact the determination of whether or not the police actions were coercive. “In

considering the voluntariness of a confession, [a] court must take into account a defendant's

mental limitations, to determine whether through susceptibility to surrounding pressures or

inability to comprehend the circumstances, the confession was not a product of his own

retarded defendant may not be able to withstand the same types of interrogation techniques

against which a defendant of average intelligence would be expected to hold his own. As

one commentator explained, “[b]y virtue of their cognitive limitations, individuals with

mental retardation tend to be more ‘suggestible,’ and therefore are more vulnerable to the

pressures that interrogating police officers can be expected to exert in their efforts to obtain

confessions.” Suzanne Lustig, “Searching for Equal Justice: Criminal Defendants With

Mental Retardation,” New Jersey Lawyer, 35 (July 1995). Further, “[w]hen a suspect

suffers from some mental incapacity, such as intoxication or retardation, and the incapacity

is known to interrogating officers, a 'lesser quantum of coercion' is necessary to call a

66, the court notes that the knowledge the police may have had concerning the unusual

susceptibility of a defendant to a particular form of persuasion is considered in determining

App. Dec. 5, 2002) (in finding a confession involuntary, the court notes the presence during

interrogation of government agent who should have been aware of mentally retarded

defendant’s limitations).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 63

See the next section on Coerced Confessions for a complete discussion of confessions that

are involuntary due to coercion.

In order to effect an intelligent and knowing waiver of constitutional rights, a defendant

must have “a full awareness of both the nature of the right being abandoned and the

and intelligent is determined by the particular facts and circumstances of the case,

304 U.S. 458, 464 (1938).

Even where a confession is not coerced, it may still be subject to suppression if the

defendant’s waiver of rights prior to the incriminating statements was not knowing and

“Compromise and Continuity: Miranda Waivers, Confession Admissibility, and the

Retention of Interrogation Protections,” 49 U.Pitt.L.Rev. 1007, 1018-19, 1042-54 (1988)

(intelligent knowledge remains separate Miranda waiver requirement in addition to

voluntariness); Note, “Constitutional Protection of Confessions Made by Mentally

Retarded Defendants,” 14 Am.J.L.Med. 431, 433-36, 448-58 (1989) (intelligent knowledge

of Free Will as an Independent Basis for Finding a Confession Involuntary,” 33 Vill.L.Rev.

895, 907, 920-22 (1988) (intelligent knowledge is separate requirement for admissibility of

confession).

It has been observed that the mentally retarded are “less likely to understand their Miranda

rights and the consequences of waiving them, giving rise to concerns about the knowing

intelligence of their waivers.” Paul T. Hourihan, “Earl Washington's Confession: Mental

interfere with an accused's ability to give a knowing and intelligent waiver of his Miranda

rights.”)

While there may be a level of deficiency so profound that the defendant is simply unable to

make a knowing and intelligent waiver, the defendant’s mental retardation is almost always

such as IQ, is necessarily determinative in deciding whether a person was capable of

knowingly and intelligently waiving, and do [sic] so waive, the constitutional rights

Texarkana 1999) (“Evidence of mental retardation and mental impairment is a factor to be

considered by the court in determining from the totality of the circumstances whether the

759 S.W.2d 427, 431 (Tenn. Crim. App. 1988) (“no single factor such as age, education, or

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 64

the meaning and effect of confessing, the confession is inadmissible.”)

In determining whether a waiver of rights was knowing and intelligent, an interrogating

“capacity to make a knowing and intelligent waiver of his rights is unrelated to the

apparent to officers that mental retardation precludes the suspect from understanding the

officers questioning suspects they find to be "slow" must take extra precautions to ensure

that any waiver of rights is done knowingly and with a full awareness both of the nature of

the right being waived and of the consequences of the decision to abandon it.”)

There are numerous cases where it was recognized that a mentally retarded defendant could

App. 2003), a mentally retarded defendant’s waiver of Miranda rights was found to be

invalid due to his likely inability to understand his constitutional rights. As one expert

explained, the defendant, whose IQ was found to be somewhere between 55 and 72, lacked

the necessary working memory to absorb information and the abstract reasoning ability to

think about the information he did retain. Notably, two of the experts who evaluated the

defendant believed it was possible for him to understand and effectively waive his rights if

they were presented in a simpler fashion. However, because the interrogating officer

persisted in utilizing legal jargon, even when the defendant indicated confusion, the

defendant was not able to comprehend what he was being told and asked to do. As this

case demonstrates, it is important to look at the precise language used by the interrogators,

as well as the defendant’s responses, in assessing whether the defendant actually

understood his rights and what he was agreeing to forego.

The Tennessee Supreme Court has recognized that mentally retarded defendants “present

additional challenges for the courts because they may be less likely to understand the

supreme court reversed the lower courts’ rulings that the mentally retarded defendant’s

waiver of his Miranda rights was knowing and intelligent. In reaching this conclusion, the

court looked both to testimony about the defendant’s mental limitations, as well as to the

circumstances of the interrogation where the defendant had difficulty in expressing himself,

misspelled his own name on the waiver form, and was unable to provide his social security

number. The fact that the defendant had not comprehended his rights was further shown by

his continued detention in jail for two weeks following his arrest, even though his

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 65

defendant after finding that the defendant’s “subnormal intelligence” precluded a knowing

(defendant with IQ between 65 and 69 did not knowingly and intelligently waive his

scale IQ of 47 “was unable to rationally and intelligently grasp the concept of waiver as

(district court erred in finding valid waiver of rights where uncontradicted testimony by

teachers and others indicated that mentally retarded defendants were incapable of

So.2d 735 (La. 1980) (mentally retarded 17-year-old with an IQ between 50 and 69 did not

understand his rights and did not appreciate the possible consequences of waiving them,

and thus was incapable of knowingly and intelligently waiving his Miranda rights, and his

1993) (record supported lower court’s finding that defendant with IQ of 65 did not have an

awareness both of the nature of his rights, and of the consequences of waiving those rights).

The importance of expert testimony on the issue of a mentally retarded defendant’s ability

(Mass. Supreme Judicial Court 1975). Although the record in the case did not provide a

basis for finding that the defendant’s confession should have been suppressed as a matter of

constitutional law, the appellate court nevertheless used its state law powers to reverse the

conviction after concluding that a new trial was required as a matter of justice. It

explained:

We have arrived at our view that there should be a new trial because no

evidence was presented at the voir dire or at the trial to aid the trier of fact

in evaluating the impact of custodial interrogation on Daniels in these

circumstances. He might be more suggestible and subject to intimidation

than a person of normal intelligence. He might not be able to understand

the consequences of his right to a lawyer or his right to remain silent. He

might be inclined to state that he understands even when he does not.

Many of Daniels's statements that he understood his rights were simple

'yes's' or 'yeah's,' and not reassuring explanations of his asserted

comprehension. (Citation omitted.) Furthermore, the police officers

testified that Daniels had difficulty understanding their explanations of his

rights. On this record, in which the only evidence that Daniels committed

the crime came from his confession and his admissions, a substantial

injustice may have been done to him because of the absence of expert

testimony on the crucial issues of voluntariness and waiver. We do not

know enough about intelligence quotients (I.Q.) and mental retardation to

rule conclusively on this question. Yet we do know enough to believe the

matter needs further analysis.

(Footnote omitted.)

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 66

N.W.2d 498, 502 (Iowa 1995) (in finding Miranda waiver invalid, court relied on testimony

of psychologists who had substantial familiarity with mentally retarded defendant’s

(psychologist testified that defendant could not understand certain Miranda terminology,

and that he would probably have agreed to almost anything said to him if doing so would

uncontradicted testimony of a psychologist that it was unlikely Henry could have

understood the complex waivers and their consequences.)

Oftentimes the waiver process involves the defendant first expressing confusion about his

rights as they are read to him. After receiving additional explanations from the officer, the

defendant then claims to understand. It is extremely common, however, for mentally

Court, the fact that Miranda warnings were “exhaustively” laid out fails to establish that the

defendant “understood the basic concept of waiver and the immediate and ultimate

In a recent empirical study of how well mentally retarded persons are able to comprehend

Miranda warnings, the authors found that “[f]or mentally retarded people, the Miranda

warnings are words without meaning.” Morgan Cloud, “Words Without Meaning: The

Constitution, Confessions, and Mentally Retarded Suspects,” 69 U. Chi. L. Rev. 495

(2002). The data from the study provided the disturbing following suggestion:

that the number of people to whom the Miranda warnings are meaningless

is much larger than previously acknowledged within the criminal justice

system. The warnings are incomprehensible not merely to those suffering

the most severe retardation, as many judicial opinions assume. They also

are incomprehensible to people whose mental retardation is classified as

mild, as well as some people whose "intelligence quotient" (IQ) scores

exceed 70, the number typically used to demarcate mental retardation.

502.

Counsel should carefully review and utilize studies, such as the one conducted by Cloud, in

order to effectively challenge the validity of a waiver of rights by a mentally retarded

defendant.

defendant] is asked if he understands something, he will almost automatically respond affirmatively–‘Yes, I

understand that.’ And a lot of times the case is that he doesn't understand that, and he's kind of

embarrassed to admit a lack of knowledge....”

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 67

For a more complete list of cases where mental retardation has been found to preclude a

valid waiver of rights, see “Mental Subnormality of Accused as Affecting Voluntariness or

Admissibility of Confession,” 8 A.L.R.4th 16 (1981 & Supp.1999).

view that a higher competence standard applies for pleading guilty than for standing trial.

It acknowledged, however, that a valid guilty plea requires more than simply competence:

A finding that a defendant is competent to stand trial . . . is not all that is

necessary before he may be permitted to plead guilty or waive his right to

counsel. In addition to determining that a defendant who seeks to plead

guilty or waive counsel is competent, a trial court must satisfy itself that

(waiver of counsel). In this sense, there is a "heightened" standard for

pleading guilty and for waiving the right to counsel, but it is not a

heightened standard of competence.

It is constitutional error for a trial court to accept a guilty plea without an affirmative

(1969). A guilty plea is not considered intelligent where the accused does not understand

U.S. 458, 464-465 (1938), or because he has such an incomplete understanding of the

Regarding the defendant’s understanding of his constitutional rights, see the section above

degree murder. The defendant had entered the bedroom of his employer intending to

collect his wages. When the employer awoke and began screaming, the defendant stabbed

her with the knife he had brought with him. After Henderson’s attorneys unsuccessfully

attempted to have the charge reduced to manslaughter, Henderson accepted their advice to

plead guilty to second degree murder. In habeas corpus proceedings, the guilty plea was

found to be involuntary because no one had explained to the defendant that intent was an

element of second degree murder. The Court acknowledged that it was probably fair to

presume in a typical case, defense counsel had explained the nature of the offense to the

defendant in sufficient detail to provide the accused with notice of what he was being asked

to admit. Here, however, the attorneys testified that they had not informed the defendant of

the intent element of second degree murder, having decided that the defendant would not

be interested in such details. This oversight by defense counsel was apparently due to the

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 68

defendant’s “unusually low mental capacity.” Because intent was a critical element of the

crime to which the defendant had pleaded guilty, the plea could not stand.

concerned that a mentally retarded defendant had not been adequately informed about the

elements of malice murder prior to pleading guilty. The court explained that while “a rote

reading of the indictment or charging document may be sufficient to put a defendant on

notice of the elements of the charge in some circumstances (citation omitted), it is

“conclusory responses by a defendant and his counsel to a court's inquiry into whether the

defendant ‘understands’ the charge is not sufficient to establish that the defendant actually

knowing and voluntary may be inadequate in cases where the defendant is mentally

knowing and intelligent. While the defendant did discuss the facts of the crime with his

attorney, and the attorney then arrived at the conclusion that the defendant was liable for

malice murder based on his presence at the time of the killing, it was unclear what

information about the charges was conveyed to the defendant. At the time of the plea,

there was no discussion about the elements of malice murder. Given the defendant’s “lack

of intelligence, his expressed confusion [during the plea colloquy], the complexity of the

case, and the extraordinary consequences of pleading guilty to malice murder,” the court

found that “a more thorough explanation of the nature of the crime and its elements was

evidentiary hearing to determine “what, if any, information [defendant] received and

These cases demonstrate a frequent problem with representing mentally retarded

defendants. Because of their limitations, counsel may withhold information rather than

taking the extra time needed to ensure that the defendant is fully apprised of, and able to

comprehend, the nature of the charges and the legal options.

Another danger with mentally retarded defendants is that a plea will be arranged on the

basis of an attorney’s misunderstanding about the facts of the crime. It is well documented

that mentally retarded individuals tend to bias their responses towards what they believe an

Retarded Criminal Defendants,” 53 Geo. Wash. L. Rev. 414, 428 (1985). In the most

extreme situation, this may result in a completely false confession, a topic discussed in

more detail below. In a less dramatic situation, a mentally retarded defendant may confirm

a version of the crime that defense counsel hypothesizes, rather than provide his own

(1993).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Waiver of Rights/Guilty Pleas Page 69

account of what happened. The distorted story may be devoid of defenses that would be

available had the interviewer been more practiced in questioning mentally retarded

individuals.

Because mentally retarded individuals are often predisposed to answer questions in a way

that is designed to conceal their lack of understanding, “even when [their] language and

communication abilities appear to be normal, the questioner should give extra attention to

with subnormal intelligence, special precautions are required to offset the many factors

which propel the system toward efficient outcomes rather than reliable ones.” Bonnie,

“The Competence of Criminal Defendants With Mental Retardation to Participate in Their

Own Defense,” 81 J. Crim. L. & Criminology 419, 439 (1990).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Coerced Confessions Page 70

4 COERCED CONFESSIONS

A criminal conviction founded in whole or in part upon an involuntary confession violates

confession is entitled to a fair hearing in which both the underlying factual issues and the

378 U.S. 368, 380 (1964). Where an involuntary confession was admitted at trial, reversal

is required unless the government can establish that the jury’s consideration of the

(1991).

In assessing whether a confession was coerced, thereby rendering it involuntary, courts

look to the totality of circumstances, consideration being given to both the details of the

interrogation and the characteristics of the accused. One unquestionably relevant

(considering low intelligence of defendant as one factor supporting finding that confession

(evidence of mental retardation and mental deficiency is a factor, but not determinative, in

(intelligence of accused is one factor to consider in determining whether confession was

one factor that a trial court should consider in determining whether a statement is

voluntary).

On the other hand, “while mental condition is surely relevant to an individual's

susceptibility to police coercion, mere examination of the confessant's state of mind can

Instead, “coercive police activity is a necessary predicate to the finding that a confession is

not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Although mental retardation does not in and of itself prevent voluntary interrogations and

withstand police coercion or pressure due to their limited communication skills, their

predisposition to answer questions so as to please the questioner rather than to answer the

(1984) (court concluded that defendant's statements were voluntary and rejected his argument that,

"because he is mentally retarded, his will to resist was overcome by the mere fact of questioning itself");

was insufficient in and of itself to establish that confession was involuntary).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Coerced Confessions Page 71

790, 806 (Tenn. 2001), quoting Lyn Entzeroth, “Putting the Mentally Retarded Criminal

Defendant to Death: Charting the Development of a National Consesus to Exempt the

D. Bicknell, “Constitutional Law: The Eighth Amendment Does Not Prohibit the

Execution of Mentally Retarded Convicts,” 43 Okla. L.Rev. 357, 362 (1990) (“[T]he

mentally retarded individual is particularly vulnerable to any police coercion used in

(low mental capacity is important in determining what amount of coercion would render a

person’s mental condition is relevant to the issue of susceptibility to police coercion).

There are many cases where confessions have been found to be involuntary in part because

with the police” were important considerations in assessing whether “overbearing police

mentally retarded defendant’s confession was found to be involuntary. Justice Frankfurter,

who announced the judgment of the Court, noted that the defendant’s “mental equipment,”

which rendered him “suggestible and subject to intimidation,” lessened his powers of

resistance to the prolonged, systematic interrogation. The fact that Culombe had a criminal

record was not seen to add to his ability to withstand coercive behaviors given his mental

limitations. Rather, the “value” of Culombe’s “considerable criminal experience . . . as a

school for toughening his resistance, [had to] be duly discounted in light of his subnormal

circumstances were found to render a confession involuntary: an employee of Department

of Children’s Services was present during the interrogation, the mentally retarded

defendant trusted this employee, the employee should have been aware of defendant’s

limitations, the questions posed to defendant were suggestive, and one officer offered

(Tenn. Crim. App. 1988) (confession of mentally retarded defendant found involuntary

where the defendant was taken into custody, transported in a law enforcement vehicle to

the Sheriff's Department, and subjected to questioning in spite of his retardation and the

751 P.2d 178 (N.M. 1988) (in finding that a confession was involuntary, court took into

consideration that defendant, due to subnormal intelligence (IQ of 70) and mental illness,

unquestionably had difficulty in appreciating the meaning of the assurances given to him

involuntary due to police officer’s improper inducements and false statements, the Court

found that a three day interval before defendant’s next inculpatory statements did not

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Coerced Confessions Page 72

negate the effect of the officer's previous actions in part because of testimony concerning

defendant’s limited intellectual functioning.)

For additional cases on coerced confessions, see “Mental Subnormality Of Accused As

Affecting Voluntariness Or Admissibility Of Confession,” 8 ALR4TH 16.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

False Confessions Page 73

5 FALSE CONFESSIONS

execution of mentally retarded defendants was the heightened risk such defendants face of

having their underlying conviction premised on a false confession. There are many

documented cases of mentally retarded individuals confessing to crimes they in fact did not

Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of

Conti, “The Psychology of False Confessions,” 2 J. of Credibility Assessment and Witness

Psychology 14, 25 (1999) (observing that mentally retarded individuals, like children, are

likely more at risk for providing false confessions.)

In any case with a defendant of sub-average intelligence who has confessed, counsel must

take special care in assessing the accuracy of the defendant’s statements.

defendants have the right to present to the trier of fact evidence concerning the

circumstances in which a confession was made in order for the jury to be able to judge the

credibility of the confession. This right exists even where the confession has been found to

precluded from presenting evidence that he confessed only after being informed that he

had failed a polygraph examination. Although state law generally precluded references to

polygraph results, the Kentucky Supreme Court found that “the defendant's right to present

a defense trump[ed] [the court’s] desire to inoculate trial proceedings against evidence of

The crux of Appellant's defense is that he was coerced and coached into a

confession by the interrogation techniques--including the use of a

polygraph examination--employed by Lt. Payton and Det. Kearney.

Appellant contends that when the investigating officers informed him that

he had failed the polygraph examination and that he had lied to Lt. Payton

Appellant from making any reference to the polygraph examination, the

trial court pulled the proverbial rug out from under Appellant's defense

and left Appellant unable to present the jury with the factual

circumstances that he alleged caused him to confess falsely.

In addition, the Kentucky Supreme Court concluded that the trial court erred in excluding

testimony from a mental health expert as to her opinion that the defendant’s limited mental

capacity could have caused him to confess falsely to a crime that he did not commit. The

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

False Confessions Page 74

trial court erroneously excluded the testimony on the ground that it went to the ultimate

issue in the case, that is, the defendant’s guilt or innocence. The court remanded the case

for reconsideration of whether the testimony was sufficiently relevant and reliable for

(evidence that defendant was prone to manipulation, suggestion, and intimidation because

of his mental retardation "should not have been excluded on the basis of relevancy because

retardation and false confessions "presented information on subjects unfamiliar to jury that

would assist it in determining the reliability of [the defendant's] confession.")

mentally retarded defendant who had confessed to the crime, it was found that the

defendant’s right to present a defense was violated by the trial court’s exclusion of expert

testimony on false confessions Among the expert’s assertions, which were made outside

the presence of the jury, was that the “mentally handicapped are more suggestible and more

likely to give a false confession,” stating that they are “easier to manipulate,” less able to

appreciate long-range consequences, easier to persuade to see the facts as asserted by the

finding reversible error, the Indiana Supreme Court determined that the excluded testimony

“would have assisted the jury regarding the psychology of relevant aspects of police

interrogation and the interrogation of mentally retarded persons, topics outside common

prosecutor’s heavy reliance on the defendant’s videotaped statement, and despite evidence

that the defendant’s fingerprint was found in what appeared to be blood on a plastic bag at

the crime scene.

For further cases discussing this topic, see “Admissibility Of Expert Testimony Regarding

Reliability Of Accused's Confession Where Accused Allegedly Suffered From Mental

Disorder Or Defect At Time Of Confession,” 82 ALR5th 591.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Criminal Responsibility Page 75

6 CRIMINAL RESPONSIBILITY

Under early common law, it was debated whether mentally retarded defendants, or “idiots”

as they were then sometimes described, should be fully culpable for criminal actions. One

(1873), where the court adopted in part Lord Hale’s famous rule which was to the effect

that to be responsible for a crime, a defendant must have the capacity and understanding of

a normal child of fourteen years. Under this system, attempts were made to equate

mentally retarded adult defendants with children, who were not deemed criminally

culpable.

In time, this approach yielded to, and was largely replaced by, guilty but mentally ill and

insanity defenses, each of which is described below. Thus, in modern times, the mere fact

that a defendant harbors a mental age commensurate with that of a child does not absolve a

Cir. 1987) (“Mental retardation does not constitute insanity or incapacity to know the

difference between right and wrong. It is only the latter disability, not the former, that

(N.J. 1920) (“The responsibility of an adult charged with commission of a crime is not to

be measured by a comparison of his mental ability with that of an infant of twelve years, or

in any other way. The true test is, does he appreciate the nature and quality of his act, and

that it is wrong? and if he does, he is responsible to the law, without regard to his other

had an inferior and untrained intellect is indisputable, and that her moral perceptions were

of a low order is clear. The jury were not required to pass upon the quality and strength of

her intellect, or upon her moral perceptions, except as such questions affect the general

question of the defendant’s knowledge, at the time of the homicide, of the nature and

quality of the act she was doing. A weak and disordered mind is not excused from the

consequences of crime.”)

Under modern law, mental retardation remains important to many complete or partial

defenses.

Most states retain an insanity defense, even though the Supreme Court has not held that

(“The Court does not indicate that States must make the insanity defense available.”) In

not prohibit placing the burden on a defendant to prove insanity beyond a reasonable doubt.

It reached this conclusion despite the fact that the majority of jurisdictions employed a

more defendant-protective burden of proof.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Criminal Responsibility Page 76

In jurisdictions that do permit an insanity defense, mental retardation may be the basis for a

finding that the defendant was insane, and therefore not criminally culpable, at the time of

accepted in this jurisdiction that mental retardation is a mental defect that will support an

insanity defense.”)

The definition of insanity varies among the states. The traditional M’Naghten insanity test

asks whether the accused party “was laboring under such a defect of reason, from disease

of the mind, as not to know the nature and quality of the act he was doing; or, if he did

Rep. 718 (1843). In England, the M’Naghten test has been clarified to mean knowledge

that an act is legally wrong. In the United States, it is not clearly resolved whether

test have supplemented it with what is known as the “irresistible impulse” rule, under

which a defendant whose mental disease or defect prevents him from controlling his

conduct is also not criminally responsible.

The Model Penal Code contains a more defendant-friendly version of the M’Naghten test.

First, it changed the requirement of “knowing” to “appreciating.” Second, rather than

demanding a complete lack of capacity, it required only that the defendant lack a

“substantial capacity” to appreciate the criminality of his conduct. Finally, it added a

volitional prong which exonerated defendants who lacked substantial capacity to control

their conduct. Model Penal Code § 4.01 cmt. 3 (1985). In the late 1980s, in response to

dissatisfaction with highly publicized insanity verdicts, some jurisdictions that had

followed the Model Penal Code amended their statutes to eliminate the volitional

requirement. According to a recent law review article, seventeen jurisdictions include

(Ky. App. Jan. 9, 2004) (“A person is not responsible for criminal conduct if at the time of

such conduct, as a result of mental illness or mental retardation, he lacks substantial

capacity either to appreciate the criminality of his conduct or to conform his conduct to the

2003) (a jury can find a defendant legally insane, if he is mentally retarded, and lacks the

capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the

5, 2002) (mental retardation “must render the appellant unable to appreciate the nature or

wrongfulness of her acts” in order for an insanity defense to succeed).

Code Ann. § 16-3-2 (1999); Haw. Rev. Stat. Ann. § 704-400 (Michie 1999); Ky. Rev. Stat. Ann. § 504.020

(Michie 1999); Md. Code Ann., Health-Gen. I § 12-108 (2000); Mich. Comp. Laws Ann. § 768.21a (West

2000); Or. Rev. Stat. § 161.295 (2001); Vt. Stat. Ann. Tit. 13, § 4801 (1998); Wis. Stat. Ann. § 971.15

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Criminal Responsibility Page 77

The Due Process Clause “protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

establish that the defendant possessed any mens rea element of the charged crime. Further,

the defendant’s right to due process includes “the right to a fair opportunity to defend

including on the issue of mens rea.

Mental retardation is often relevant to the question of whether or not the defendant

harbored the mental state necessary for conviction of the alleged crime. Impulsivity, for

example, is a common characteristic of the mentally retarded. Testimony about the

defendant’s mental retardation could establish reasonable doubt on elements such as

premeditation and deliberation, and specific intent.

Model Penal Code Section 4.02(1) reads as follows: “Evidence that the defendant suffered

from a mental disease or defect is admissible whenever it is relevant to prove that the

defendant did or did not have a state of mind which is an element of the offense.”

Similarly, American Bar Association Standards for Criminal Justice, Standard 7-6.2 states:

“Evidence, including expert testimony, concerning the defendant's mental condition at the

time of the alleged offense which tends to show the defendant did or did not have the

mental state required for the offense charged should be admissible.”

Jurisdictions differ as to what evidence may be presented to demonstrate that the defendant

defendant’s mental retardation was found to constitute error, since such evidence was

“potentially material as to whether [the defendant] entertained the specific intent to further

194 (Colo. 1956) (“A defendant in a first degree murder case has the right, without

reference to a plea of insanity, to establish mental deficiency as bearing upon his capacity

165 (Idaho 1961) (a jury may consider evidence tending to show an abnormal mental or

nervous condition in determining whether or not the defendant, at the time of the alleged

offense, had the specific intent which is an essential ingredient of the crime charged);

Legislature may not deny the defendant the opportunity to prove he did not actually possess

which indicated that a criminal defendant is not entitled to present evidence of his impaired

any case where specific intent is an essential element of the crime charged.)

Some jurisdictions, on the other hand, preclude expert testimony about a defendant’s

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Criminal Responsibility Page 78

627 N.W.2d 276, 285 (Mich. 2001) (“the Legislature has signified its intent not to allow

evidence of a defendant's lack of mental capacity short of legal insanity to avoid or reduce

1987) (evidence of mental retardation was inadmissible during the guilt phase of a firstdegree

establish that his mental retardation rendered him incapable of fully comprehending the

fragility of the victim, or the consequences of his conduct, the trial court could not consider

682, 688 (Va. 1985) (the use of expert testimony to show by circumstantial evidence that

the requisite specific intent did not in fact exist, infringes upon the factfinder’s prerogative

Louisiana rule that a defendant cannot rebut evidence of specific intent by presentation of

psychiatric testimony without pleading not guilty by reason of insanity.)

The refusal to permit evidence of an impaired mental condition short of insanity has been

So.2d 820, 828 (Fla. 1989) (Overton, J., dissenting) (the majority holding, namely that

expert testimony regarding brain damage may be barred when offered to establish the

defendant could not or did not harbor the requisite intent, where evidence of intoxication

may be presented on this issue, may violate the equal protection and due process clauses of

both the United States and Florida Constitutions because no reasonable classification or

(“The law is not the creation of such barbarous and insensible animal nature as to extend a

more lenient rule to the case of a drunkard, whose mental faculties are disturbed by his own

will and conduct, than to the case of a poor demented creature afflicted by the hand of

defendant charged with murder in the first degree must be permitted to offer relevant and

competent expert psychiatric opinion testimony on the issues of premeditation and specific

intent. To hold otherwise would be to violate the defendant's constitutional right to present

evidence.”); Joshua Dressler, “Reaffirming the Moral Legitimacy of the Doctrine of

Diminished Capacity: A Brief Reply to Professor Morse,” 75 J. Crim. L. & Criminology

953, 953 n.6 (1984) (due process precludes the exclusion of probative information which

directly impacts upon the requisite mens rea; presentation of evidence regarding diminished

capacity may also be constitutionally protected pursuant to the Sixth Amendment right to

(1996) (O’Connor, J., dissenting) (statute which precluded jury from considering

defendant’s intoxicated state in determining whether defendant “purposely” or

518 U.S. 37 (1996) (Ginsburg, J., concurring in judgment) (Montana statute did not violate

due process because it redefined mens rea element of crime rather than excluded relevant

evidence).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Criminal Responsibility Page 79

diminished responsibility. Even assuming the ruling remains good law, it should not be

seen to preclude evidence presented to negate the mens rea element of the charged crime.

federal court determined that a trial court violated a murder defendant's constitutional right

to present a defense when it prevented her from presenting expert testimony about battered

woman syndrome (BWS) to negate the element of mens rea and to rebut the state's

murder, after she left her children in the care of her boyfriend, despite knowing he

was abusive. The charges involved specific intent crimes of omission based on Mott’s

failure to protect her children from her boyfriend. In her defense, she sought to present

evidence of BWS to negate the mens rea element of the charged offenses, and to rebut the

state witnesses' testimony that she had always confronted her boyfriend. In affirming the

question was whether a jurisdiction was required to offer a diminished responsibility

defense, which the federal court found to be distinct from presenting testimony to explain

the defendant’s behavior, and to negate the prosecution’s evidence that she had knowingly

or intentionally neglected her children.

Therefore, if counsel is prohibited from presenting expert testimony on mental retardation

intended to negate the mens rea requirement, constitutional objections should be lodged.

Even in jurisdictions where expert testimony is prohibited, counsel may be able to

introduce lay testimony demonstrating such things as the defendant’s limited ability to

1989) (reaffirming rule that psychiatric testimony unrelated to insanity may only be offered

at sentencing phase of capital trial, but noting that lay witnesses could testify that defendant

was too intoxicated to form specific intent).

For further information on the status of diminished capacity defenses, see 22 A.L.R.3d

1228.

Mental retardation may also be relevant to affirmative defenses other than insanity or

(Tenn.Crim.App. Jan. 22, 2003) (unpublished), a homicide case, the Tennessee Court of

Criminal Appeals recognized that mental retardation was relevant to the subjective

component of self-defense (an honest belief that the danger was real), as well as to the

lesser included offense of voluntary manslaughter (whether the killing was actually

committed in a state of passion). The defendant had unsuccessfully sought to introduce

expert testimony about his mild mental retardation and undifferentiated schizophrenia. As

to the defendant’s mental retardation, the expert had explained outside the presence of the

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Criminal Responsibility Page 80

jury that mentally retarded individuals "are somewhat slower in terms of their capacity to

process information", and that "it is difficult for them to process information quickly."

The expert further noted that this type of deficit would be worse in a situation where there

is a lot of stress and emotion. The appellate court concluded that such testimony was

erroneously excluded, although the error was harmless on the facts of the case.

A modern development is the verdict of guilty but mentally ill or mentally retarded. What

this tends to mean, in jurisdictions that permit such a verdict, is that the defendant’s mental

impairment will not preclude a conviction, or even lessen the sentence, but will instead

require that the defendant receive appropriate treatment while in custody. These laws have

Ill Verdict: An Idea Whose Time Should Not Have Come,” 53 Geo. Wash. L. Rev. 494

(1985); Comment, “The Guilty But Mentally Ill Verdict: Political Expediency at the

Expense of Moral Principle,” 10 Notre Dame J.L. Ethics & Pub. Pol’y 341 (1996).

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Challenges to Prior Convictions and Unadjudicated Charges Offered in Aggravation Page 81

7 CHALLENGES TO PRIOR CONVICTIONS AND

UNADJUDICATED CHARGES OFFERED IN AGGRAVATION

As discussed above, mentally retarded defendants are at special risk of giving involuntary

or false confessions, and making unintelligent waivers of their rights. Additionally, many

commentators and experts believe that the criminal justice system under-identifies mentally

retarded defendants who are incompetent to stand trial, or who have viable defenses that go

unexplored. If a defendant has prior convictions, counsel must carefully review the record

to determine whether the convictions were constitutionally flawed, or otherwise unreliable.

A death sentence based in part on an invalid prior conviction violates the Eighth

Challenges to prior convictions are generally limited to instances where there was a

U.S. 394 (2001) (similar ruling in regard to federal habeas challenge to current sentence

based on unconstitutional prior conviction that was the basis for the sentence

enhancement.) Notably, however, the California Supreme Court treats capital cases

special need for reliability in the death penalty context is undermined whenever a prior

conviction (upon which a death judgment is based) is tainted by a fatal fundamental

constitutional defect.” It therefore held: “[I]n the context of a capital case, a collateral

challenge to a prior conviction that has been alleged as a special circumstance may not

properly be confined to a claim of Gideon error, but may be based upon at least some other

not be read to limit challenges to prior convictions used in capital cases.

Where evidence of unadjudicated crimes is offered against a defendant with sub-average

intellectual functioning as aggravation, counsel must investigate the circumstances

surrounding those crimes as extensively as the capital offense itself. The mens rea issues

noted above may be applicable, or the inculpatory statements may be subject to suppression

or challenge.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Behavior/Appearance Post-Crime or in Courtroom Page 82

8 BEHAVIOR/APPEARANCE POST-CRIME OR IN

COURTROOM

defendants may be unfairly judged during sentencing proceedings because their demeanor

the defendant’s behavior during the trial, as well as descriptions of his demeanor after the

crime. This may be particularly important given the frequently misleading portrayal of

mentally retarded individuals in films and on television as innocent and excessively

loveable.

Another common problem in cases involving mentally retarded defendants is the

defendant’s efforts to mask his or her disabilities. For example, the defendant may take

copious notes in order to appear to be following and actively participating in the trial. This

can lead the jury to wrongly conclude that the defendant is not significantly impaired. To

the extent that counsel can control such behaviors, counsel should do so. If counsel cannot

prevent the defendant from giving a false impression of intelligence, expert or lay

testimony may be necessary to counter the defendant’s actions or appearance.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Custodial Adjustment Page 83

9 CUSTODIAL ADJUSTMENT

mentally retarded defendant may not be as morally culpable as a “normal” adult because

mentally retarded individuals are typically less able to control impulses, and to evaluate the

consequences of their conduct. Unfortunately, these same characteristics can lead a jury to

To ensure that subnormal intelligence is not transformed into a factor weighing in favor of

a death sentence, counsel should develop and present evidence that will establish that the

structured environment of a prison is precisely the type of place in which the defendant can

presented of mild mental retardation, along with lay witness testimony demonstrating that

the defendant positively adjusted to incarceration).

If counsel is relying upon evidence that the defendant is a “follower” in an effort to reduce

culpability for the capital offense or prior crimes, counsel must make special efforts to

demonstrate to the sentencer that this characteristic is not likely to render the defendant

dangerous in prison. For example, the sentencer may fear that the defendant could become

a pawn of violent and manipulative inmates. One possible means of accomplishing this is

through evidence of probable conditions of confinement for the defendant. In Texas, for

example, there is the Mentally Retarded Offender Program. Under this program mentally

retarded inmates are housed separately from other inmates in order to ensure, among other

things, protection from prisoners who could manipulate or otherwise abuse the mentally

retarded inmates. Counsel must thoroughly investigate the relevant prison system in order

to determine whether similar protections would be available.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Post-Conviction Competence Page 84

10 POST-CONVICTION COMPETENCE

A mentally retarded inmate may be unable to assist post-conviction counsel and/or may be

incompetent to be executed.

proceed in post-conviction proceedings due to active psychosis and mental retardation.

S014200 (Cal. Supreme Court July 24, 2002) (granting motion for appointment of guardian

ad litem to incompetent death row inmate for the purpose of preparing and pursuing habeas

corpus petition). If mental retardation or sub-average intellectual functioning interferes

with the ability of an inmate to assist counsel in litigating challenges to his conviction and

pending restoration of competency where counsel for incompetent capital habeas petitioner

raised claims that could potentially benefit from the defendant’s ability to communicate

rationally with counsel).

“The Eighth Amendment prohibits the State from inflicting the penalty of death upon a

opinion and it did not resolve what constitutes insanity to be executed. In his concurring

opinion, Justice Powell defined the standard for competency to be executed as requiring

that the “defendant perceive[] the connection between his crime and his punishment . . ..”

competency to be executed, at the very least, the Eighth Amendment bars execution of

prisoners who are insane in the sense of being unaware of the punishment they are about to

Some states have adopted standards that include a prong for ability to rationally assist

counsel, and to identify information calling the conviction and death sentence into doubt.

defendant who is of sub-average intelligence should advocate for this more protective

standard, utilizing the abundant materials demonstrating that mentally retarded defendants

are at special risk of being wrongfully convicted and receiving an unwarranted death

sentence.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Clemency Page 85

11 CLEMENCY

Residual doubt about guilt has been the basis for a number of clemency grants in the

defendant is in fact mentally retarded and argue that the defendant is similarly situated for

any event, significant mental limitations should be the basis for a finding of lesser moral

culpability, and hence make the granting of clemency a possibility.

possible innocence was a reason for clemency in 21 cases since 1976.

A Practitioner’s Guide to Defending Capital Clients Who Have Mental Retardation

Part III Page 87

PART III