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Univ. of South Carolina School of Law

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Sunday, December 30, 2007

Narcissus & Echo: Ninth Circuit Reverses District Court And Finds Narcissistic Personality Disorder Diagnosis Evidence Admissible

Irwin Schiff is a well-known recidivist tax protestor, who was last released from prison for income tax evasion in 1991.  Now, pursuant to the opinion of the Ninth Circuit Court of Appeals in United States v. Cohen, 2007 WL 4485629 (9th Cir. 2007), his acolyte, Lawrence Cohen, might avoid a similar fate.  Cohen and others were convicted in connection with filing "zero returns," federal individual income tax returns containing a zero on every line related to income and expenses.  Cohen's convictions, however, came only after, inter alia, the district court prevented him from presenting expert psychiatric evidence, leading the Ninth Circuit Court of Appeals to reverse his convictions and order a new trial.

The evidence that Cohen sought to present was a report prepared by psychiatrist Dr. Norton A. Roitman, who had met with Cohen twice.  In the report, Dr. Roitman diagnosed Cohen as suffering from a narcissistic personality disorder and concluded that Cohen did not intend to violate the law, as would be the case with a criminal who acted out of a desire for personal gain.  The report contended that Cohen did not intend to violate the law and that his behavior was driven by a mental disorder as opposed to criminal motivation.  It noted that Cohen was irrational to the point of dysfunction, demonstrated by his stubborn adherence in the face of overwhelming contradictions and knowlege of substantial penalty.

The Ninth Circuit first found that this report was admissible under Federal Rule of Evidence 702, which states that expert opinion evidence is admissible if, inter alia,  "[s]cientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."  The Ninth Circuit found that Dr. Roitman's report would be helpful to the jurors in determining whether Cohen intended to commit the fraudulent tax-related acts with which he was charged, and its decision seems both correct to me and consistent with prior precedent.  Indeed, the Ninth Circuit cited to its prior decision in United States v. FInley, 301 F.3d 1000 (9th Cir. 2002), where it found that expert evidence about a defendant's delusional disorder was admissible in his trial for tax-related crimes.

The more difficult question faced by the Ninth Circuit was whether the report was admissible under Federal Rule of Evidence 704(b), which states that "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." 

The Ninth Circuit first cited to its prior decision in United States v. Morales, 108 F.3d 1031 (9th Cir. 1997), where the defendant was charged with willfully making false entries in a union ledger, and the Ninth Circuit found that a certified public accountant could provide expert testimony that Morales had a weak grasp of bookkeeping principles.  The Ninth Circuit came to this conclusion because the jurors could believe the expert's testimony about Morales' weak grasp of bookkeeping principles and still decide that Morales willfully made false entries.

The Ninth Circuit next cited again to the Finley case, where it had found that expert opinions are only excluded under Rule 704(b) if they "necessarily compel" a conclusion about the defendant's mens rea. 301 F.3d at 1015.  In Finley, the Ninth Circuit also cited to Morales as well as to United States v. Rahm, 993 F.2d 1405 (9th Cir. 1993).  In Rahm, the defendant was charged with, inter alia, possession of counterfeit currency, and the Ninth Circuit found that a psychologist could provide expert testimony about the defendant's poor visual perception because the jurors could believe this testimony and still decide that Rahm knew that he possessed counterfeit currency.  In Finley, the Ninth Circuit analogized Finely's case to to the Morales/Rahm line of cases and found that the jurors could have believed that Finely was delusional and had a rigid belief system and yet still have concluded that he acted fraudulently.   

In the Cohen case, the Ninth Circuit extended this logic from Finley and concluded that while some of the opinions contained in Dr. Roitman's report would likely have violated Rule 704(b), the jurors could have accepted other opinions relating to the narcissistic personality disorder diagnosis and still have found that Cohen had the requisite mens rea. 

I'm not sure that I agree with the Ninth Circuit's decisions in Finley and Cohen.  At the very least, it seems to me that the diagnoses in those cases do more to compel a conclusion about mens rea then did the testimony about lack of bookkeeping knowledge and poor visual perception on Morales and Rahm.  Beyond that, if we actually look at the opinions in Dr. Roitman's report, it seems clear to me that the central thesis of his narcissistic personality disorder diagnosis was that Cohen lacked the necessary criminal intent.  While the Ninth Circuit is correct that, for instance, any reference to the word "intent" could be removed from the report, the very nature of the diagnosis and every cited statement in Dr. Roitman's report seems to compel a finding that Cohen lacked the necessary mens rea.   

-CM

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