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Dissociative Identity Disorder and Criminal Law
This module presents a case study in the intersection of law, philosophy, and clinical psychiatry. Its focus is on the legal questions raised by a psychological disorder known as Dissociative Identity Disorder (formerly known as Multiple Personality Disorder). Persons afflicted with this disorder have one or more distinct personalities, each with different behavior patterns, values, memories, and self-concepts. These personalities (known as “alters”) alternate in exerting full control over the body, and there are often amnesic barriers between the dominant, “host” personality and the alters that recurrently take over. Such a strange disorder raises many questions, but for our purposes, the most important one is this: how should the criminal justice system try and punish people with DID who commit crimes while an “alter” is in control? As we’ll see, this relatively narrow question quickly forces us to grapple with foundational issues surrounding the nature of person-hood, the attribution of responsibility, and the relationship between our legal system and the evolving field of clinical psychiatry.
  • 1 Psychological Background

    This playlist provides materials that lend insight into the psychological dimensions of Dissociative Identity Disorder. It includes diagnostic criteria, first-person descriptions of the disorder, a section of a documentary about DID, and a summary of the debate surrounding multiplicity during the past decades. Of course, given the vastness of the literature on DID, the psychological picture offered by this playlist is extremely limited. The goal is not to plumb the depths of DID's history, or to resolve debates about its nature and diagnosis. Rather, it is to offer a glimpse of the complexity of this multifaceted disorder, and to help make concrete the legal and philosophical puzzles it poses — puzzles that will be explored in more depth later in the module.

    Notes: This playlist provides materials that lend insight into the psychological dimensions of Dissociative Identity Disorder. It includes diagnostic criteria, first-person descriptions of the disorder, a section of a documentary about <span class="caps">DID</span>, and a summary of the debate surrounding multiplicity during the past decades. Of course, given the vastness of the literature on <span class="caps">DID</span>, the psychological picture offered by this playlist is extremely limited. The goal is not to plumb the depths of DID's history, or to resolve debates about its nature and diagnosis. Rather, it is to offer a glimpse of the complexity of this multifaceted disorder, and to help make concrete the legal and philosophical puzzles it poses &#8212; puzzles that will be explored in more depth later in the module.
    • 1.1 Official Diagnostic Criteria for Dissociative Identity Disorder

      These are the official diagnostic criteria for Dissociative Identity Disorder, as outlined in the updated Diagnostic and Statistical Manual of Mental Disorders (DSM-V).

      (last accessed 9/30/12)

      Notes: Take a minute to fill out the diagnostic worksheet provided by the <span class="caps">APA</span> (under the tab labeled &#8220;severity&#8221;). How frequently do you manifest symptoms associated with <span class="caps">DID</span>? Keep your answers in mind as you are introduced to people with diagnosed cases of <span class="caps">DID</span> later in the module. Are we all &#8220;multiple&#8221; to some extent? Or are there genuinely sharp distinctions between standard fluctuations in personality on the one hand, and <span class="caps">DID</span> on the other?
    • 1.2 First-person Descriptions of DID

      Notes: This mini-playlist provides written, first-person descriptions of <span class="caps">DID</span>. The goal is to offer a sampling of the diverse ways in which <span class="caps">DID</span> manifests, and to help the reader begin thinking about the legal relevance of how exactly we conceive of the experience (or experiences) of <span class="caps">DID</span>.
      • 1.2.1 Billy Milligan

        Notes: Milligan's description emphasizes the separation between the different identities involved in <span class="caps">DID</span>. The host identity simply disappears, an alter takes over for a while, and then the host re-appears somewhere else having &#8220;lost that time.&#8221; As we'll see, however, this is by no means a universal experience of the relationship between the host personality and the alters. In other cases, different personalities can be co-conscious, they can communicate, and they can coordinate their responses to situations. As you move through the module, keep in mind the manner in which our conception of the relationship between the alters affects our conception of their criminal responsibility.

        "Imagine yourself standing in front of a sink. You're getting a glass of water. And the whole world around you instantaneously changes, and now you're in a park acting like you're getting a glass of water. Out of thin air. And you just lost that time. That's what it's really like. And basically to me, I'm sick and tired of the phonies, the freak shows and the phonies, because what they're doing is not only damaging the people that they're making role play these games, they're damaging the people who are desperate for help..."

        -- Billy Milligan, 21 October 1996

        Source: http://www.astraeasweb.net/plural/milligan.html

        Last accessed: 9 September 2012

      • 1.2.2 Anonymous

        Notes: Note the difference between this description and the one Milligan gives. Milligan claims total separation between the identities &#8212; an utter absence of consciousness, and then a re-appearance at a different time. The anonymous &#8220;survivor,&#8221; however, suggests that at times he or she is &#8220;watching&#8221; her body, but unable to control it. That is, she remains conscious, but at some kind of distance from her standard capacity for agency.

        “I watch a body that looks like me, doing things I’m ashamed of. I can’t will myself back into that body. I can’t control its movements, its thoughts, its feelings. I can only watch and feel the shame and fear. It’s alarming to see the newspaper date, five days ahead of the date I know it to be. It’s frightening to “wake” with the razor in my hand, my arms bleeding and yet know I could never cut myself.”

        -- Survivor of DID

        Source: http://mrswiand.hubpages.com/hub/DISSOCIATIVE-IDENTITY-DISORDER-THE-BATTLE-WITHIN.

        Last accessed: 9 September 2012

      • 1.2.3 John Woods

        This is an article written by Judith Armstrong, a psychologist assigned as an expert witness in the trial of a man — John Woods — whom she had diagnosed with DID. Mr. Woods had killed his girlfriend, Sally, during an argument about her faithfulness. Read Section IV: The Interview (pp. 212-216). In it, Dr. Armstrong conducts separate interviews with the three alters involved in the crime.

        Notes: This is the lengthiest of the descriptions given thus far, and it reveals the complexity of the dynamics that develop between the alters. Note, for example, that Ron &#8220;overhears&#8221; what John is saying to Sally (p. 213); that Donnie knows who Dr. Armstrong is because &#8220;that information got<br /> passed around&#8221; (p. 214); that Donnie wants to &#8220;ask&#8221; Ron what is going on, but Ron &#8220;won't talk to him&#8221; (p. 214); that Donnie tries to impress Ron and John by jumping off a balcony (p. 215); that John and Donnie both think that Ron is &#8220;usually right&#8221; (p. 215 and p. 216). All of this suggests not just internal communication and co-consciousness, but an intricate network of relationships and power dynamics operating amongst the alters.
    • 1.3 Barb's Life

      This is a documentary about three different people with DID. The whole film is fascinating, but the section to focus on starts at 38:37 and runs through the end of the film, about 20 minutes. It introduces you to Barb – a woman with multiple personality disorder -, her family, and a number of her alters.

      Notes: The alter named &#8220;Cary,&#8221; introduced at 50.23, is of particular interest, since Cary is one of the alter who often does illegal and destructive things when she is &#8220;out.&#8221; For example, towards the end of the film, Cary has written $1500 worth of bad checks to pay for a reckless shopping spree. Barb has no memory of the incident, but her husband needs to take out a loan in order to pay for them. This is exactly the type of situation in which multiples in the court system often find themselves. As you watch, note your initial reactions: to what extent does it seem to you that Barb is responsible for Cary's actions? Also note the manner in which Cary speaks about her own situation. &#8220;How would you feel if you were in my position? I'm stuck here. I don't have a life.&#8221; (53:11) An alter asking for empathy raises interesting questions. What is it like to &#8220;be&#8221; an alter? Is that even a sensible question, separate from the question of what it is like to &#8220;be&#8221; Barb?
    • 1.4 Skepticism about DID

      Notes: <p>Controversy over <span class="caps">DID</span> in the psychiatric community is longstanding, and the kind of skepticism about <span class="caps">DID</span> that Tozman and Padis express remains relatively common. Skeptics point to a number of factors that could raise questions about DID's legitimacy. First, the diagnoses of <span class="caps">DID</span> has undergone significant changes in the past half-century. Prior to 1970, there had only been about 100 cases of <span class="caps">DID</span> reported worldwide (Schacter, Gilbert, and Wegner). However, in the latter decades of the 20th century, the number of reported cases skyrocketed. Maldonado &amp; Butler (1998), for example, estimate that between .5% and 1% of the general population now suffers from the disorder. What accounts for this rapid increase? Skeptics suggest that increased publicity around the disorder (for example, the 1957 film The Three Faces of Eve) has led to conscious or un-conscious simulation, and that eager psychotherapists &#8211; using a combination of suggestion, hypnosis, and expectation &#8211; have created symptoms of <span class="caps">DID</span> in their clients or elicited false reports of child abuse or <span class="caps">DID</span>-like behavior. These doubts are buttressed by the fact that childhood trauma and abuse is common around the globe, particularly among people of low-income, yet <span class="caps">DID</span> is diagnosed most frequently among middle-class north americans (Acocella, 1999).</p> <p>In response to such skepticism, believers in <span class="caps">DID</span> point to the relative success of <span class="caps">DID</span> treatments in eliminating symptoms in patients who did not response to treatment for bi-polar disorder or schizophrenia (see Saks, 402). They point to studies independently verifying the correlation between child abuse and <span class="caps">DID</span> (without reliance on the patient's memories), the relative consensus in the psychiatric community about the symptoms and treatment of <span class="caps">DID</span> (as evidenced by its inclusion in <span class="caps">DSM</span>), and recent evidence that <span class="caps">DID</span> may not be as bound to North America as previously supposed (Sar, Yargic and Tutkun (1996)).</p> <p>There is much to be said on both sides, and debate about <span class="caps">DID</span> will likely continue well into the future. For the purposes of this module, however, we need not resolve the debate here. Few skeptics about <span class="caps">DID</span> deny the existence of the disorder in its entirety. Rather, they tend to question its frequency and its status in relation to other disorders like schizophrenia. Thus, even if <span class="caps">DID</span> is significantly over-diagnosed, the legal questions this module investigates will still be raised by the minority of cases in which the diagnosis is accurate. Moreover, if the reader is unwilling to grant the legitimacy of even a single case of <span class="caps">DID</span>, he or she can view the central purpose of this module as a hypothetical: if <span class="caps">DID</span> were a real disorder, how would the legal system need to handle it? But such caveats are, at least in my view, relatively unnecessary, given the implausibility of supposing that every single case of <span class="caps">DID</span> has been faked, created by therapy, or mis-reported.</p> <p>Sources:<br /> Acocella, Joan (1999). Creating Hysteria: Women and Multiple Personality Disorder. New York: Jossey-Brass.<br /> Saks, Elyn (1991). Multiple Personality Disorder and Criminal Responsibility, 25 U.C. Davis L. Rev. 383.<br /> Maldonado, J. R., Butler, L. D., &amp; Spiegel, D. (1998). Treatments for dissociative <br /> disorders. In P. E. Nathan &amp; J. M. Gordon (Eds.), A Guide to Treatments that <br /> Work (pp. 423-446). New York: Oxford University Press.<br /> Sar, V., Yargic, L., &amp; Tutkun, H. (1996). Structured interview data on 35 cases of dissociative identity disorder in Turkey. American Journal of Psychiatry, 153 (10), 1329-1333. <br /> Schacter, D. S., Gilbert, D. T., &amp; Wegner, D. M. (2008). Psychology. New York: Worth.</p>

      "We regard MPD as a dissociate phenomenon of exceedingly rare occurrence if it occurs at all. Unsurprisingly, it seems related to hypnotizability. The accentuation and "epidemic" of this rare, iatrogenic disorder does no justice to scientific psychiatry, generating media and literature distortions and misinformation. It distressingly often provides untenable and flamboyant legal defense maneuvers for serial killers and others of ill repute. Psychiatry should not reinforce the mystical and bizarre."

      From Seymour Tozman & Roman Padis, "MPD: Further Skepticism (Without Hostility… We Think)", 177 J. Nervous & Mental Disease 708 (1989) (Letter to editor).

  • 2 Philosophical Background

    This playlist provides a brief introduction to the contemporary philosophical debate surrounding the nature of personal identity. Again, the goal is not to resolve the debate (though the “Mad-Scientist” test is meant to prompt the reader's personal intuitions), but rather to provide the reader with the background necessary to understand the ways in which the philosophical assumptions we bring to our understanding of DID will directly impact our legal conclusions.

    Notes: This playlist provides a brief introduction to the contemporary philosophical debate surrounding the nature of personal identity. Again, the goal is not to resolve the debate (though the &#8220;Mad-Scientist&#8221; test is meant to prompt the reader's personal intuitions), but rather to provide the reader with the background necessary to understand the ways in which the philosophical assumptions we bring to our understanding of <span class="caps">DID</span> will directly impact our legal conclusions.
    • 2.1 Understanding the Persistence Question

      There is a person sitting at your computer right now, reading these words. Earlier today, there was (probably) a person that got out of your bed, brushed his or her teeth, and ate breakfast. What makes these two people both “you”? Or, more generally, what has to be the case for a person in the past to be identical to a person in the future? This is a summary of some of the central issues involved in attempting to answer this question. Start at Section 2: “Understanding the Persistence Question,” and read through Section 5: “Fission.”

    • 2.2 [This resource no longer exists on H2O because its owner deleted it.]

    • 2.3 What, exactly, is a "self"?

      This is an article about DID and self-hood, written Nicholas Humphrey, a theoretical psychologist, and Daniel C. Dennett, a contemporary (and relatively famous) philosopher of mind. Start at the bottom of page 6 (“Many people who find it convenient…”) and read through the middle of page 12 (“we shall be able to come closer to an answer…”).

      Notes: <p>Humphrey and Dennett describe two conceptions of self-hood &#8212; a &#8220;layman's&#8221; view, according to which there is a real thing called a &#8220;self&#8221; or a &#8220;soul&#8221; that thinks thoughts, controls actions, holds memories, etc; and a &#8220;revisionist&#8221; view, according to which selves are explanatory fictions, used to talk about complex systems at a certain level of description, but non-existent in some ultimate sense. Does their attempt at an analogy with American Democracy succeed in bridging the two views?</p> <p>More importantly, to what extent is the &#8220;layman's&#8221; conception of the self &#8211; which ascribes to people a &#8220;soul-like agency&#8221; -embedded within our criminal justice system? What would a justice system that reflected the &#8220;revisionist&#8221; conception of the self look like? Could we justly hold &#8220;centers of narrative gravity&#8221; or &#8220;ways of talking about complex systems&#8221; responsible for murders or rapes? Can we mete out punishments based on an &#8220;explanatory fiction&#8221;? These are large questions in legal philosophy that cannot be answered here. Yet the challenge of prosecuting defendants with <span class="caps">DID</span> quickly begins to raise them in earnest.</p>
  • 3 Multiples as Perpetrators

    This playlist gathers together a set of seminal cases in which people with DID were tried for crimes committed while at least one alter was “out” and in control. It examines the different legal standards courts have used to evaluate such cases, and it offers a number of secondary materials to aid in applying critical scrutiny to the issues at hand.

    Notes: This playlist gathers together a set of seminal cases in which people with <span class="caps">DID</span> were tried for crimes committed while at least one alter was &#8220;out&#8221; and in control. It examines the different legal standards courts have used to evaluate such cases, and it offers a number of secondary materials to aid in applying critical scrutiny to the issues at hand.
    • 3.1 State v. Grimsley

      Are the actions of a person with multiple personality disorder voluntary when she is dissociated from her primary personality and in the state of a consciousness of a secondary personality?

      Notes: This 1982 opinion set a legal standard for rulings pertaining to <span class="caps">DID</span> that many other courts have relied upon in ensuing cases. Thus, it is worth examining quite closely. Appellant was convicted of drunk driving. She appealed on the grounds that one of her alter personalities was in control at the time of the incident, and that her actions were therefore neither conscious nor voluntary. Note especially the court's framing of the incident in the last two paragraphs of the opinion. What philosophical and psychological assumptions about <span class="caps">DID</span> are at work? Do you agree with the court that if you allow the memory barriers involved with <span class="caps">DID</span> to aid in Grimsley's defense, you would have to do the same with all defendants whose memories are blocked? And is it really &#8220;immaterial whether [Grimsley] was in one state of consciousness or another,&#8221; as long as the alter in control was sane?
      1
      3 Ohio App. 3d 265 (1982)
      2
      THE STATE OF OHIO, APPELLEE,
      v.
      GRIMSLEY, APPELLANT.
      3
      No. C-810255.
      4

      Court of Appeals of Ohio, Hamilton County.

      5
      Decided February 10, 1982.
      6

       

      7

      Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Christian J. Schaefer and Mr. Gerald W. Krumpelbeck, for appellee.

      8

      Mr. John W. Hauck, for appellant.

      9

      BLACK, J.

      10

      Ms. Grimsley was convicted in a bench trial of driving under the influence of alcohol in violation of R.C. 4511.19. An intoxilyzer test indicated a concentration of twenty-one hundreds of one percent (0.21 percent) by weight of alcohol in her blood. The first of her four assignments claims error in overruling her demand for a jury trial, and we agree with this claim. The conviction must be reversed and the case remanded for further proceedings.

      11

      The other three assignments of error raise issues about statutory interpretation and proof of the affirmative defense of insanity that are likely to arise because a new trial is likely. Parton v. Weilnau (1959), 169 Ohio St. 145 [8 O.O.2d 134]. We believe App. R. 12(A) requires us to address these issues, which we will consider in the following order: whether R.C. 4511.19 imposes strict criminal liability so that proof of a culpable mental state is not necessary (the fourth assignment of error); whether the actions of a person with a multiple personality disorder are voluntary when she is dissociated from her primary personality and in the state of consciousness of a secondary personality (the second assignment of error); and whether that person in such a state of consciousness is legally insane (the third assignment of error).

      12
      I
      13

       

      14

      The first assignment of error raises [266] procedural questions about a misdemeanant's right to a jury trial. Charged with driving under the influence of alcohol on September 2, 1980, appellant filed a written jury demand while she was represented by her first lawyer. On his advice, she changed her plea of not guilty to no contest on October 22, 1980, but the judge failed to inform her of the effect of the pleas of guilty, no contest and not guilty as mandated by Crim. R. 11(E). Concurrently, the court accepted appellant's written waiver of a trial by jury, complying with the requirement of R.C. 2945.05.[1] She was then found guilty, and the case was continued for sentencing on November 20, 1980, after receipt of a presentence report. That sentencing did not take place.

      15

      Appellant changed lawyers, and on November 5, 1980, her new lawyer filed a motion under Crim. R. 32.1 to withdraw her plea of no contest. At a hearing on November 13, 1980, the court allowed her to withdraw the earlier plea and enter a plea of not guilty. Appellant's oral request for a jury trial was denied, and the case was referred to the assignment commissioner for trial setting. However, on November 26, 1980, before the trial date was set appellant filed a written jury demand, and the judge promptly denied that demand in open court. He again referred the case to the assignment commissioner for trial setting, and the record indicates that later that same day, the case was set for trial on December 31, 1980. After a continuance not pertinent to this appeal, the trial was held on January 29, 1981, and appellant was found guilty by the court sitting without a jury.

      16

      We hold that the court erred when it denied appellant's second jury demand. R.C. 2945.05 states that a waiver of trial by jury may be withdrawn by the defendant at any time before commencement of the trial,[2] and Crim. R. 23(A)[3] provides that in petty offense cases, a defendant [267] may demand a jury trial in a writing filed not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Having duly withdrawn her waiver as she had a right to do, appellant filed her jury demand on November 26, 1980, before the case was set down for trial, in complete compliance with Crim. R. 23(A). The first assignment of error has merit.

      17
      II
      18

       

      19

      Appellant asserts that the court erred when it held that R.C. 4511.19 imposes strict criminal liability. Because this statute does not specify any degree of culpability, the question is whether it "plainly indicates a purpose to impose strict criminal liability for the conduct described in such section." R.C. 2901.21(B)[4]

      20

      We hold that R.C. 4511.19 imposes strict criminal liability. We find in the language chosen by the legislature a plainly indicated purpose to do so, because the overall design of the statute is to protect against the hazards to life, limb and property created by drivers who have consumed so much alcohol that their faculties are impaired.[5] Mentor v. Giordano (1967), 9 Ohio St. 2d 140 [38 O.O.2d 366]. Further, the legislatures created an elaborate procedure to determine the concentration by weight of alcohol in an accused's blood, together with a presumption that if that concentration is ten hundredths of one percent (0.10 percent) or more, the accused is under the influence of alcohol. The legislature defined the offense in terms of the factual presence of alcoholic influence, without reference to the offender's mental state. Finally, alcoholic abuses are strictly controlled by the General Assembly. A liquor permit, for instance, may be suspended for serving intoxicants to minors even though the seller had no knowledge of the customer's age and may have been deceived by appearances. Hanewald v. Bd. of Liquor Control (1955), 101 Ohio App. 375 [1 O.O.2d 313]; State v. Burke (Dec. 19, 1979), Hamilton App. No. C-790028, unreported.

      21

      [268] The act of driving a vehicle while under the influence of alcohol (or drugs, or a combination of both) is a voluntary act in the eyes of the law, and the duty to refrain from doing so is one that in the interests of public safety must be enforced by strict criminal liability without the necessity of proving a culpable state of mind.

      22

      The fourth assignment of error has no merit.

      23
      III
      24

       

      25

      Appellant contends that she can not be held liable for any offense because at the time of the offense she was dissociated from her primary personality (Robin) and in the state of consciousness of a secondary personality (Jennifer). She contends that she was not acting either consciously or voluntarily. R.C. 2901.21[6] provides, in effect, that a person who acts unconsciously and without volition, acts involuntarily and cannot be guilty of any offense.

      26

      Appellant's contention is based on expert psychiatric testimony that was not controverted and appears to have been conceded by the prosecution. She was diagnosed as having a multiple personality disorder, meeting the following criteria: (1) she is dominated from time to time by two or more separate personalities; (2) the personality who is "in consciousness," or dominant, at any particular time controls her behavior; (3) the transition from one personality to another is involuntary, sudden, and generally without warning; and (4) each personality has unique characteristics, including behavior patterns, memories and social associations. She further maintains that on the day in question, psychological trauma (report of a lump on her breast) caused her to dissociate into the personality of Jennifer, who is impulsive, angry, fearful and anxious. Jennifer has a drinking problem. Finally, appellant contends that when she is Jennifer, Robin is unaware of what is going on, has no control over Jennifer's actions, and no memory of what Jennifer did later on when she is restored to the primary personality of Robin.

      27

      The treatment for this disorder has been psychotherapy during which the completeness of dissociation, originally caused by trauma and maintained as a means of blocking that trauma and succeeding traumas, is reduced so that the personalities become integrated into one. Appellant has been in psychotherapy since June 1977, and argues that incarceration will have a devastating effect on her progress.

      28

      Appellant submits that on this evidence, it was error to hold her legally responsible because being Jennifer on the day in question, Robin was not conscious of what was happening and lacked voluntary control over Jennifer's actions. This is not an insanity defense but a claim that appellant cannot be found guilty because during the commission of the offense, her acts were beyond the control of her primary personality and were therefore involuntary.

      29

      We disagree. Assuming arguendo that the evidence was sufficient to establish such a complete break between appellant's consciousness as Robin and her consciousness as Jennifer that Jennifer alone was in control (despite years of therapy), nevertheless the evidence fails to establish the fact that Jennifer was either unconscious or acting involuntarily. There was only one person driving the car and only one person accused of drunken driving. It is immaterial whether she was in one state of consciousness or another, so long as in the personality then controlling her behavior, she was conscious and her actions were a product of her own volition. The evidence failed to demonstrate that Jennifer was unconscious or otherwise acting involuntarily.

      30

      Another branch of appellant's argument is that since Robin has only minimal [269] recollection of what Jennifer did and was unable to respond to questions on the stand about the conduct constituting the offense, Robin was not conscious of that conduct and should not be held responsible for it. We are not persuaded. If we were to allow the bare existence of a defendant's multiple personality disorder to excuse criminal behavior, we would also relieve from responsibility for their criminal acts all defendants whose memories are blocked. We do not believe that is the legislative intent of R.C. 2901.21.

      31

      We find no merit in the second assignment of error.

      32
      IV
      33

       

      34

      Carrying the disabilities of a multiple personality disorder a step further, appellant argues in the third assignment that the court erred in finding that she failed to establish her defense of insanity,[7] because the uncontroverted evidence was that her primary personality (Robin) was not conscious of the wrongfulness of the secondary personality's (Jennifer's) acts and did not have the ability to cause that personality to refrain from driving while drunk. We find no merit in this claim. The evidence fails to establish by a preponderance that Ms. Grimsley's mental disorder had so impaired her reason that she, as Robin or as Jennifer or as both, either did not know that her drunken driving was wrong or did not have the ability to refrain from driving while drunk. State v. Staten (1969), 18 Ohio St. 2d 13 [47 O.O.2d 82]. We find no merit in the third assignment of error.

      35

      Because appellant was erroneously denied a jury trial, we reverse the judgment below and remand this case for further proceedings.

      36

      Judgment reversed and case remanded.

      37

      PALMER and KEEFE, JJ., concur.

      38

      [1] Although the written waiver did not follow the wording set forth in R.C. 2945.05 (see fn. 2 below), this defect was not presented by the appellant as an argument that the first jury demand was not legally waived and remained in full force and effect. Nor was it claimed that the signature of "Roberta Grimsley" on the waiver was not appellant's. We therefore ignore these issues.

      39

      [2] R.C. 2945.05 reads in full as follows:

      40

      "In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: "I.........., defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.

      41

      "Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial."

      42

      In State v. Tate (1979), 59 Ohio St. 2d 50 [13 O.O.3d 36], the Supreme Court held that this statute is not superceded by Crim. R. 23(A) but remains effective; it prescribes the mandatory procedure for waiving a jury trial in a petty offense case, once a jury has been demanded under Crim. R. 23(A).

      43

      [3] Crim. R. 23(A) reads in full as follows:

      44

      "(A) Trial by jury. In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto."

      45

      [4] R.C. 2901.21 reads in full as follows:

      46

      "(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:

      47

      "(1) His liability is based on conduct which includes either a voluntary act, or an omission to perform an act or duty which he is capable of performing;

      48

      "(2) He has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.

      49

      "(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.

      50

      "(C) As used in this section:

      51

      "(1) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of his control thereof for a sufficient time to have ended his possession.

      52

      "(2) Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor's volition, are involuntary acts.

      53

      "(3) `Culpability' means purpose, knowledge, recklessness, or negligence, as defined in section 2901.22 of the Revised Code."

      54

      [5] It is a widely accepted fact that a major portion of the 40,000 to 50,000 traffic deaths each year are caused by drivers who have been drinking. A motor vehicle has been held to be a "deadly weapon" capable of inflicting death when so used. State v. Orlett (M.C. 1975), 44 Ohio Misc. 7 [73 O.O.2d 30]; State v. Leidecker (April 12, 1981), Hamilton App. No. C-800689, unreported; State v. Stangill (May 17, 1978), Hamilton App. No. C-77450, unreported.

      55

      [6] R. C. 2901.21 is set forth in fn. 4 above.

      56

      [7] No objection was made to the appellant's use of the defense of insanity against an offense of strict criminal liability when it was not necessary to prove a culpable state of mind, and the prosecution did not raise the question on appeal. We do not reach the question, technically, but we note that the incapacity to know the wrongfulness of one's conduct requires only proof that the accused lacked the mental capacity to know that the act was wrongful, whether or not culpability was required for guilt, and that the incapacity to conform one's conduct to the requirements of law is equivalent to involuntariness. This suggests that the insanity defense is applicable against an offense of strict criminal liability.

    • 3.2 Kirkland v. State

      Does DID on its own constitute a legitimate basis for an insanity defense?

      Notes: This 1983 case makes clear the influence of the standard set by the Grimsley court in 1982. The fact patterns were quite similar: appelant robbed a bank, then pled not guilty by reason of insanity on the basis of an uncontroverted diagnosis of &#8220;psychogenic fugue,&#8221; a disorder so closely akin to <span class="caps">DID</span> that the court treats them as identical. The court primarily relies on reasoning from Grimsley, and continues to develop analogies to somnambulism, memory loss, and unconscious action. As you read through the opinion, do you see any significant differences between this case and Grimsley, that might motivate a difference in legal response?
      1
      166 Ga. App. 478 (1983)
      2
      304 S.E.2d 561
      3
      KIRKLAND
      v.
      THE STATE (two cases).
      4
      65988, 65989.
      5

      Court of Appeals of Georgia.

      6
      Decided May 3, 1983.
      7

       

      8

      Charles B. Merrill, Jr., for appellant.

      9

      Richard A. Malone, District Attorney, for appellee.

      10

      BIRDSONG, Judge.

      11

      In June and August 1981, Phyllis Sharon Kirkland committed bank robberies in both Toombs and Emanuel Counties. Her method was virtually the same in each case: wearing a dark wig, large sunglasses, and jogging suit, she entered the banks when they were empty of customers, and, after pretending to want a money order, obtained large sums of money from the employees by brandishing a 9mm automatic pistol. In the Emanuel County bank, she told the employees that two men with machine guns awaited her outside; she made as if to spray the woman with mace but relented after the women pleaded with her. In Toombs County, she told the bank employees her husband awaited her outside with a machine gun. She was seen leaving the Emanuel County bank in a black Cadillac with dark tinted windows. The police soon captured her several miles outside Swainsboro. In the car with her were her two small children and the money from the robbery.

      12

      For the next three or four hours, she was rational and, except for the "normal" upset of anyone just arrested for bank robbery, was calm. She intelligently and rationally waived presence of counsel at that point and freely confessed to the crime. She accompanied the sheriff to various places in Swainsboro where she had thrown out or hidden her wig and other disguises. She also confessed to the Toombs County bank robbery. She stated: "That morning, I woke up. Something spoke to me and told me what to do. Bob and I were in debt about twenty thousand dollars . . . . I do not know exactly how much money I got. When I went to the bank in Vidalia [Toombs County], there were two women in the bank. I robbed only one of the women. There was a black man in the bank that worked there. I threw away the wig I was wearing and the jumpsuit. I was driving my same car, my Cadillac. I spent about two thousand, I don't know what that word is, bills. I think I got nine thousand dollars. I think there is fifteen hundred dollars at my house in the chimney. I was in Knoxville, Tennessee. I went to a nightclub and someone stole a lot of the money. My husband, Bobby, knows where the money is at in the chimney. The money was in a shoebox underneath the seat. We picked up a young white boy and he stole the money. When I went to the bank in Vidalia, I was wearing my sweatsuit. My girlfriend's name is Wanda Collins. She lives in Jellico, Tennessee. I stayed in Tennessee six weeks. Gary Collins from Tennessee should be at my house. My husband got Gary a job where he works at . . . . I got two thousand dollars in a savings account at the First National Bank in Vidalia . . . ." Appellant then accompanied the officers to her house, [479] where she asked her husband, "Bobby, what did you do with [the money from the Vidalia robbery]?"; he retrieved it from under the front seat of their truck.

      13

      Appellant was tried without jury, by the same trial judge in both countries. The Emanuel County record containing extensive psychiatric testimony was consolidated in the Toombs County trial. Identical verdicts with findings of fact and conclusions of law were rendered.

      14

      There is no dispute that appellant committed the bank robberies. But Phyllis Sharon Kirkland contended, and the trial judge found, that she "has a multiple personality [disorder] which has been properly diagnosed as psychogenic fugue." Appellant pleaded not guilty by reason of insanity, but the trial court retrospectively applied OCGA § 17-7-131 (Code Ann. § 27-1503) (effective July 1, 1982) and found the appellant "guilty but mentally ill."

      15

      On appeal, Phyllis Sharon Kirkland contends that the verdict is contrary to the evidence and the law; and that the trial court erred in failing to find appellant "not guilty by reason of insanity" through misapplication of the law and in contravention with the overwhelming and uncontradicted expert testimony. She also contends the trial court erred in ex post facto applying the 1982 "guilty but mentally ill" statute to the 1981 offenses. Held:

      16

      1. This appeal presents, in one instance, two issues taxing the outer limits of criminal law and psychiatric science. The undisputed psychiatric testimony describes appellant as having a disorder called psychogenic fugue, which is so like the "multiple personality" disorder that the doctors could only with great difficulty explain the difference, or even say there is a clear difference. In the facts of this case, the purported fugal personality, "Bad Sharon," is a well-developed, rational and conscious personality, so for legal purposes we will not distinguish them.

      17

      The conditions of multiple personality and its less refined cousin, psychogenic fugue, are extremely rare and certainly not fully understood nor perhaps fully accepted even by psychiatry. In general, the affected individual unconsciously "develops" alternate personalities to deal with trauma (e.g., child or sexual abuse) that the individual otherwise cannot endure. The alternate personalities are separate identities with highly individualized traits, behavior patterns, and complex social activities, even to the point of possessing different family histories, different ages, or even different nationalities. When faced with stressful situations, the individual may be dominated by one or more separate personalities; the "core" individual most often has no knowledge of the existence of any other [480] personalities, but may sometimes hear "voices" and will "lose time." She may wake up in a strange city thousands of miles from home, and find herself in possession of unfamiliar and uncharacteristic clothing and objects. The "core" personality has no control over the personality which is in domination, or consciousness; the transition to the alternate is involuntary and unknowing; she has no memory of what the other personality does. The alternate personality may stay in control for hours, months or years. A particular alternate personality may be, and often is, as its raison d'etre, a well-developed and complete personality in itself, rational and quite functional. Naturally the core personality stays often confused, and may even ultimately abdicate altogether in favor of another (or a platoon of others) who will separately function in society to the limit of their respective abilities.

      18

      We have surveyed the case law and, as far as we can ascertain, the question of criminal accountability of the multiple personality has theretofore been addressed only once, in 1982 in Ohio v. Grimsley, 3 Ohio App. 3d 265 (444 NE2d 1071). There, the Ohio court concluded without elaboration: "There was only one person driving the car and only one person accused of drunken driving. It is immaterial whether she was in one state of consciousness or another, so long as in the personality then controlling her behavior, she was conscious and her actions were a product of her own volition . . . . [We find no merit in the claim that] the court erred in finding that she failed to establish her defense of insanity, because the uncontroverted evidence was that her primary personality (Robin) was not conscious of the wrongfulness of the secondary personality's (Jennifer's) acts and did not have the ability to cause that personality to refrain from driving while drunk . . . . The evidence fails to establish . . . . that Ms. Grimsley's mental disorder had so impaired her reason that she, as Robin or as Jennifer or as both, either did not know that her drunken driving was wrong or did not have the ability to refrain from driving while drunk." (PP. 1075-1076).

      19

      The law adjudges criminal liability of the person according to the person's state of mind at the time of the act; we will not begin to parcel criminal accountability out among the various inhabitants of the mind. Thus it was for very good and considered reasons that the Ohio court said: "There was only one person [committing the criminal act] . . . and only one person accused [of it]. It is immaterial whether she was in one state of consciousness or another, so long as in the personality then controlling her behavior, she was conscious and her actions were a product of her own volition." (Emphasis supplied.) Ohio v. Grimsley, supra, p. 1076.

      20

      It is true that "no rules can be so specific as to embrace the [481] infinite variety of forms in which insanity, or derangement, may show itself; and that each case must depend very much upon the circumstances, facts and developments which attend it." Roberts v. State, 3 Ga. 310, 332. But in every such circumstance, including the existence of multiple personalities, the law is justified in governing accountability where "at the time of the [criminal] act . . . the person [had] mental capacity to distinguish between right and wrong in relation to such act . .." (OCGA § 16-3-2 (Code Ann. § 26-702)) and was not acting "because of a delusional compulsion as to such act which overmastered his will to resist committing the crime," (OCGA § 16-3-3 (Code Ann. § 26-703)), which delusion would, if true, have justified the act. Brannen v. State, 235 Ga. 505, 506 (220 SE2d 264). If these elements are found to be present, in a case, the law will not inquire whether the individual possesses other personalities, fugues, or even moods in which he would not have performed the act or perhaps did not even know the act was being performed.

      21

      It was codified as the first "insanity defense" law of this state that "[a]lunatic or person insane, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged, provided the act so charged as criminal was committed in the condition of such lunacy or insanity; but if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency." (Cobb, 779; Code Ann. § 26-303, 1953 Rev.) This is essentially consistent with OCGA §§ 16-3-2 and 16-3-3 (Code Ann. §§ 26-702, 26-703), and is still the law of this state. "It may be that an unconscious person or a somnambulist could not commit [a crime], under the laws of this State," (Lewis v. State, 196 Ga. 755, 763 (27 SE2d 659); see also Starr v. State, 134 Ga. App. 149 (213 SE2d 531)); but this would of course be because he lacks requisite criminal intent and mental capacity to distinguish right from wrong. The mere amnesiac who himself does not remember what happened, or the man whose own mind went "blank" at the crucial moment, can obviously not be excused if other evidence establishes that, whether the accused remembers it or not, he acted with the requisite criminal intent. See esp. Reeves v. State, 196 Ga. 604 (27 SE2d 375), where that defendant might today be examined with considerable interest as a possible multiple or fugal personality; and see Lee v. Thompson, 452 FSupp. 165.

      22

      It is settled that we are not bound by expert testimony as to the sanity or mental state of an accused, even where it is undisputed, but the fact finder may reject it out of hand (Moses v. State, 245 Ga. 180, 181 (263 SE2d 916); see Lee v. Thompson, supra, p. 169). We think it is elementary, also, that while such expert witnesses may testify as to mental state, they are not competent to render an opinion as to the [482] impact of such mental state on legal accountability. The trial judge in this case accepted that appellant suffers from a multiple personality disorder, but ruled that the personality (be she Phyllis or Sharon, or both) who robbed the banks did so with rational, purposeful criminal intent and with knowledge that it was wrong. We find no fault with his finding that appellant was guilty but mentally ill.

      23

      2. It follows from everything we have said, that the trial court was fully authorized to find (and in fact did find) appellant guilty, and not legally insane or under a delusional compulsion (as defined by OCGA § 16-3-3 (Code Ann. § 26-703) and Brannen, supra) at the time of the acts. Hence, the application of OCGA § 17-7-131 (Code Ann. § 27-1503), in finding her "guilty but mentally ill," gives appellant the advantage of an ameliorative law. It reduces or modifies the penalty of a guilty verdict. It decidedly lessens the stigma of criminal guilt and provides for the treatment of her mental illness. It did not alter the rules of evidence nor require less or different testimony or evidence to convict of guilt beyond a reasonable doubt. It did not alter the situation of the accused to her disadvantage; to the contrary, it gave the appellant the advantage of her mental illness even though she did not sustain her insanity defense. Todd v. State, 228 Ga. 746 (187 SE2d 831); Bailey v. State, 210 Ga. 52 (77 SE2d 511); Barton v. State, 81 Ga. App. 810 (60 SE2d 173). Where the verdict of guilt is authorized by the evidence, the application of the "guilty but mentally ill" act is procedural, not substantive; it leaves untouched the substantive right to the insanity plea as an absolute defense (see Winston v. State, 186 Ga. 573 (198 SE 667); Todd v. State, supra). If the verdict of guilty is authorized by the evidence, the accused is given an additional advantage when the guilty but mentally ill statute is applied. See Walker v. State, 132 Ga. App. 274 (208 SE2d 5). The verdict was not an unconstitutional application of an ex post facto law.

      24

      Judgment affirmed. Shulman, C. J., and McMurray, P. J., concur.

    • 3.3 United States v. Denny-Schaffer

      Faced with a defendant diagnosed with DID, did the trial judge err in rejecting the insanity defense for insufficiency of the evidence thereon?

      Notes: Unlike Kirkland, this 1993 opinion represents a direct repudiation of the standard set by the Grimsley court. Defendant was convicted of kidnapping a child from a New Mexico hospital. She pled not guilty by reason of insanity, claiming that her host personality was not in control at the time of the crime. Look closely at the court's reasoning in Part IV. Do the court's philosophical assumptions about <span class="caps">DID</span> differ from those at work in Grimsley and Kirkland? What new standard does this opinion suggest? Do you think that the court has done enough to justify it?
      1
      2 F.3d 999 (1993)
      2
      UNITED STATES of America, Plaintiff-Appellee,
      v.
      Bridget M. DENNY-SHAFFER, Defendant-Appellant.
      No. 92-2144.

      United States Court of Appeals, Tenth Circuit.

      August 9, 1993.

      [1000] [1001] [1002] Rhonda P. Backinoff, Asst. U.S. Atty., Albuquerque, NM (Don J. Svet, U.S. Atty., with her on the brief), for plaintiff-appellee.

      Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.

      Before LOGAN, HOLLOWAY and SEYMOUR, Circuit Judges.

      HOLLOWAY, Circuit Judge.

      Defendant Bridget Denny-Shaffer appeals her conviction and sentence under 18 U.S.C. § 1201(a)(1). The indictment charged that the defendant "wilfully and knowingly did transport in interstate commerce" from New Mexico to Texas and Minnesota a child "Kevin Daniel Chavez, who has been unlawfully seized, kidnapped, carried away and held by the defendant ... for the purpose of keeping the child ... as her own." The defense of Ms. Denny-Shaffer — a victim of multiple personality disorder (MPD) — was insanity within the meaning of 18 U.S.C. § 17(a). The trial judge rejected the insanity defense and instructions requested on it at the conclusion of the trial for insufficiency of proof by defendant under § 17(a). Defendant was then found guilty by the judge after a jury determination was waived.

      The central issue on appeal is whether the trial judge erred in rejecting the insanity defense for insufficiency of the evidence thereon, and in refusing to submit jury instructions on the defense. Being convinced that the evidence required the submission of the defense, we reverse.

      I
       
      THE KIDNAPPING

       

      The record reveals the following facts concerning the taking of the child, which were basically not in dispute at the trial.

      In 1990 and 1991, Denny-Shaffer was employed as a labor and delivery nurse at Rehoboth Hospital in Gallup, New Mexico. On May 10, 1991, at about 5:40 a.m., defendant entered the Memorial General Hospital in Las Cruces, New Mexico, wearing a lab jacket and identifying herself as a University of New Mexico (UNM) medical student named Linda. See III R. at 42-44. She went to the nursery where she inspected several babies, including Kevin, claiming to be doing a pediatrics rotation for the UNM medical school. See id. at 48-51. While unobserved by other hospital personnel, Denny-Shaffer picked up the infant, hid him under her arm and left the hospital. She then got into her car and headed for Texas with the baby. See VIII R. at 1007-08, 1014-15. The same evening, she [1003] arrived at the Bryan, Texas, home of her former boyfriend, Jesse Palomares. According to him, defendant appeared to be pregnant. See III R. at 145-48.

      About noon the next day, defendant telephoned Palomares at work and asked him to return home. When Palomares arrived at his house, he saw defendant in bed with an infant in her arms. Defendant told Palomares: "This is your little one." Id. at 150. There was blood on the sheets and carpet. Palomares also noticed a bag containing a human placenta. See id. at 151, 153. Defendant asked him to bury the placenta in the front yard next to where his son's placenta was buried. Defendant refused any medical attention. Palomares had doubts as to the paternity of the baby. He made it clear to defendant that whether or not he was the baby's father, he did not want to maintain a romantic relationship with her. See id. at 161-62.

      After a few days in Bryan, defendant left to join her family, including her mother and teenage daughter, Genesis, in Minnesota. While in Minnesota, defendant presented and treated the stolen baby as her own. See IV R. at 378-79; VI R. at 634.

      On May 20, 1991, defendant had a telephone conversation with her supervisor at Rehoboth Hospital, Beatrice Cowdry. Before leaving New Mexico, defendant had told Cowdry that she had a baby with her Texas boyfriend, Palomares. See IV R. at 252-53. During the call, defendant told Cowdry that she was going to return to New Mexico with the baby, but that it had not grown. See id. at 269-70. Cowdry could hear an infant crying in the background. See id. at 270. Cowdry knew about the Las Cruces kidnapping and became suspicious that defendant might be involved; she thus contacted the police. See id. at 271-72.

      On May 21, 1991, defendant and her daughter Genesis left Minnesota and headed back to New Mexico by car. On May 23 the New Mexico police and the FBI stopped defendant's car in Albuquerque. See id. at 415. As the car was being pulled over, defendant instructed Genesis to hide the baby under a pillow. See VI R. at 638-39. However, the baby was discovered and defendant was placed under arrest for kidnapping. Defendant told an FBI agent: "I took the baby from the Las Cruces Hospital." See V R. at 485.

      II
       
      PROCEDURAL HISTORY

       

      Defendant was indicted in the District of New Mexico on the kidnapping charge on June 4, 1991. However, she moved for transfer of the case, which was granted. The case was tried by the New Mexico federal judge in Topeka, Kansas.

      Before trial, defendant gave notice pursuant to Rule 12.2(a) of the Federal Rules of Criminal Procedure of her intention to invoke an insanity defense.[1] The government [1004] moved for a mental examination of defendant pursuant to Rule 12.2(c) and 18 U.S.C. § 4242 to determine her sanity at the time of the kidnapping. The court granted the motion and ordered a mental examination at the Federal Correctional Institution at Lexington, Kentucky. There a forensic evaluation report was prepared for the court in accordance with 18 U.S.C. § 4247(c) by Dr. Mary Alice Conroy, a psychiatric staff member at the institution. Defendant was also examined for the defense by Dr. Teresita McCarty, a private psychiatrist with experience in dissociative disorders such as MPD.

      We detail the experts' views later. It is convenient now, however, to note these critical points about the experts' views. The government and defense experts were in agreement that one of the defendant's alter personalities, "Rina," perhaps with another alter personality, "Bridget," controlled defendant's conduct at the time of the kidnapping. The expert witnesses had varying views as to any conscious participation by defendant's host or dominant personality "Gidget" in preparations for or carrying out the kidnapping. See II R. at 20; VIII R. at 1008-20. However, the expert for the defense, Dr. McCarty, said she did not know whether the alters in control at the time of the abduction knew that taking a baby was wrong. See VIII R. at 1136-37. Solely because of the lack of evidence concerning the alters, the judge rejected the insanity defense and refused to submit instructions on it to the jury. See VIII R. at 1147-48, 1153.

      After the judge rejected the defense and instructions on it, defense counsel stated that there was no need to attempt argument to the jury since her sole defense had been rejected. The trial judge said that argument on the defense would not be permitted. For this reason trial by jury was waived with the consent of the prosecution and defense counsel, and with the approval of the judge. The judge then made a finding that the defendant was guilty, see 18 U.S.C. § 4242(b)(1), and sentenced her to 63 months' imprisonment to be followed by five years of supervised release, see IX R. at 1175. This timely appeal followed.

      We turn first to the important evidence concerning the defendant's background, her mental condition, and the degree of its severity.

      III
       
      THE BACKGROUND OF DENNY-SHAFFER'S MENTAL CONDITION

       

      The testimony of several percipient and expert witnesses at trial reveals the following facts concerning defendant's background and mental illness without significant dispute.

      A
       
      Defendant's Background

       

      Defendant was born in 1954 in Richfield, Minnesota, as the third of 10 children. Her parents divorced when she was 12. During childhood defendant experienced an array of severe physical and sexual abuse. Her mother, described by defendant's sister as "very moody," kicked and hit defendant and her siblings with her hands, belts, and hangers on all parts of their bodies. See V R. at 500-01. The mother once beat defendant black and blue all over her legs and back, sent her to school, and warned her not to tell anyone what had happened or she would be beaten again. See VI R. at 630. Several times, defendant received bloody noses from her mother's blows; on one occasion, she suffered a broken arm as a result of abuse. See VII R. at 871-72, 888. At least once, her mother burned defendant's lower legs in the bathtub. See VIII R. at 1045-46.

      In addition to physically abusing her, defendant's mother tormented defendant concerning her eating habits and told her, at age four, that she could not have food at the dinner table because she was too fat. Conversely, one time after defendant had been throwing up, her mother told her to eat more [1005] food. Defendant began binge eating at age seven, and in the eighth grade became anorexic. See VII R. at 884-85.

      From about age four, defendant was subjected to sexual abuse by her older brother. See V R. at 513-14; VII R. at 866. According to defendant's sister Katy, who had herself been sexually abused by the brother, defendant was sexually abused by her brother as well. See id. The abuse continued until defendant was in junior high school. Beginning about that time, defendant also experienced several incidents of sexual abuse by one of her uncles. See VII R. at 566.

      At age 14, while staying with her father in California, defendant was raped by one of her father's friends. Defendant told Dr. McCarty that as a result she became pregnant and had an abortion. See VII R. at 872. At age 16 defendant was also raped by her employer in California. See id.; VI R. at 609. At age 16 defendant met her first husband, Daniel Coffman. They were married and had two children together, Genesis and Shoshona. Mr. Coffman was abusive toward defendant and after five years of marriage, she divorced him. See V R. at 519.

      Defendant and her daughters moved to Arkansas where she attended nursing school. In Arkansas, she met Peter Shaffer and they were married. While living in Arkansas, defendant suffered from long periods of severe depression and emotional instability. See V R. at 528-29; VI R. at 556, 566-67, 612, 619. From 1985 to 1989, while pursuing an advanced nursing degree, she received mental health treatment in the counseling program at the University of Arkansas. As part of the program defendant had a total of 98 individual therapy sessions. The counselors diagnosed her as suffering from a major depressive disorder and prescribed an anti-depressant for her to take. See VII R. at 876-79.

      In 1989 defendant moved to Bryan, Texas, where her husband Shaffer had grown up, but he never joined her there. Defendant's emotional condition worsened during her stay in Bryan and her daughters noticed a recurrence of bulimic behavior. See VI R. at 565-67, 626-27. While in Bryan, defendant struck up a romantic relationship with Jesse Palomares which lasted about a year. She became pregnant by Palomares but the pregnancy ended in a miscarriage. See VI R. at 609-10, 627. The miscarriage left defendant more depressed than ever. She lay in bed for several days in a bathrobe soaked in blood and did not change her clothes or sheets. See id. at 610-11.

      In early 1990 Palomares broke off his relationship with defendant. Soon thereafter, defendant entered a treatment program at the Cedars Hospital, complaining of stress, bulimia, and anorexia. See VII R. at 882-83, 886-87. She told her counselors about her childhood abuse and her sensation that she was observing herself, including her thoughts and feelings, from outside. Defendant was diagnosed as suffering from eating disorders and borderline personality disorder. See id. at 888-94, 899, 917.

      Defendant transferred to Parkside Hospital where she was diagnosed with anorexia, bulimia, alcohol and chemical dependence, depression disorder, mood disorder, and moderately severe personality disruption. See id. at 894, 917. She was discharged after a 38-day stay. See id. at 895-96. While at Parkside, defendant lost her job. Her condition deteriorated and her mood swings intensified. See VI R. at 576, 590-91. On one occasion, she even failed to recognize one of her own daughters while talking to her at the house. The following day, defendant did not remember what had happened. See id. at 578-79.

      In late 1990 defendant wrote in her diary that her life was "in Mai's hands" and that she was waiting to see "what Mai wants for me." See VIII R. at 948-52. She also made entries indicating that she thought she was pregnant and due in May 1991. At her father's funeral in Minnesota in December 1990, defendant told her family that she was pregnant. In January 1991 she experienced bleeding and believed she had a miscarriage. See id. at 961, 999.

      The same month, defendant accepted a job as a nurse in the Women's Health Unit at Rehoboth Christian Medical Center in Gallup, New Mexico. The job was scheduled to begin February 4 and end May 6, 1991. [1006] Defendant's diary indicates that she was concerned about leaving Palomares and was confused about their relationship: "I can't accept it's over, so I can't go on. I only want to let go if it's really over for him." See id. at 961. In block letters she wrote: "CONFUSED ME." See id. at 959. Defendant moved to Gallup to start her new job. She continued to pretend to her family that she was pregnant, and she wrote and talked to Palomares about her pregnancy, trying to convince him the baby was his and probably was a boy. See III R. at 126, 136; IV R. at 300.

      While in Gallup defendant acquired a new social security card under the name Marina Bridget Kelly-Denny, plus two altered birth certificates, one indicating her mother was American Indian and the other indicating her father was Sioux. She also obtained a New Mexico driver's license under the name Marina Kelly. In March 1991 defendant had her picture taken, appearing pregnant. She told the photographer that she wanted to send the photo to the baby's father. See IV R. at 339, 341, 348.[2]

      On May 8 defendant checked into a motel in Albuquerque. Two days later, she abducted Kevin Chavez from the Las Cruces Memorial Medical Center nursery.

      B
       
      The Trial Evidence on Defendant's Mental Condition

       

      As noted, Dr. Conroy performed a court-ordered examination of defendant at the FCI in Lexington, Kentucky, and prepared a forensic evaluation which was admitted into evidence at trial. See II R. at 1-21; IX R. at 1169.[3] Dr. Conroy's report as the government's expert details much of the personal and medical history recounted above. Dr. Conroy diagnosed defendant as suffering from Multiple Personality Disorder (MPD), II R. at 19, as did the defense expert. Dr. Conroy stated:

      All factors taken together, the diagnostic picture presented by Bridget Denny-Shaffer is very consistent with a dissociative disorder known as Multiple Personality Disorder.... It involves the existence of two or more well integrated personality states within a single individual.... 

      3
      In the case of Ms. Denny, the psychological disorder seems to have had its onset in early childhood. As is often the case, it may have developed as a defense against the physical, psychological, and/or sexual abuse which she endured.
      4

       

      II R. at 18. Moreover, Dr. Conroy discounted the possibility of malingering by the defendant. Id. at 17-18; see also the discussion of Dr. Foote's testimony in note 8, infra.

      Dr. Conroy did not opine that defendant's host or dominant personality was in control at the time of the abduction of the infant.[4] Her report stated:

      5
      It is essential to emphasize that someone suffering from a multiple personality disorder is still a single individual. Nonetheless, it is important to examine which alter personality was in fact in control of the behavior during the instant offense. The defendant strongly emphasized the role of the irresponsible adolescent personality ["Rina"]. When accessed, this persona agrees she was searching for a baby and she took it from the hospital. However, [1007] she also refers to "Mother Superior" ("Bridget") as being present with her at the time. The most likely scenario from all data gathered seems to be the adolescent personality and the "Bridget" ("Mother Superior") personality are co-conscious and were co-conspirators in this offense.
      6

       

      II R. at 20 (emphasis added). Thus Dr. Conroy concluded that the alters Rina and Bridget were "present" at the time of the taking of the infant and that defendant's host or dominant personality was not present at the time of the abduction. There was some evidence in Dr. Conroy's report suggesting that the host personality may have been present at some points during the later trip. See infra Part VI(D).

      The conclusion by the government expert that defendant's host or dominant personality was not present at the abduction of the baby was similar to that of defendant's expert, Dr. McCarty, who testified extensively at trial.[5] She concluded:

      7
      A. My conclusion was she was indeed suffering from a mental illness and the primary illness was multiple personality disorder.
       
      ....
       
      Q. Was she still suffering from it at the time you saw her?
       
      A. Yes, she was.
       
      Q. And was she suffering from it before and on May 10th of 1991? 
       
      A. Yes, she was. 
       
      ....
       
      Q. Now, in Ms. Denny's case, who have you identified as the primary personality?
       
      A. It seems that Gidget is the primary personality. 
       
      ....
       
      Q. What are the names that you have identified of the other personalities?
       
      A. There's Gidget, Bridget, Paul or Pal .... Then there was that part that I identified as a 14-year-old, because that's really all the information I got from her. And then Rina, ... who's also sometimes called M-A-R-I. Then there was a part called Mother Superior, and a part called Bird, and then there was a part that wasn't identified by a name, but by a description. It was female and little....
      8

       

      VII R. at 860; VIII R. at 972-73 (emphasis added). Dr. McCarty described the severity of defendant's mental illness as follows: "The illness was serious and severe." Id. at 1030. Dr. McCarty testified that in an MPD case, the primary personality is also sometimes called the host personality, that it is recognized by society as the person, and that it is the personality which interacts with the outside world and is identified "officially." Id. at 969-70. As to the personality in control at the time of the abduction, Dr. McCarty said:

      9
      Q. ... From your discussing this with the primary personality, did the primary personality plan the abduction? 
       
      A. No. 
       
      Q. Did she know that there was going to be an abduction? 
       
      A. No. 
       
      ....
       
      Q. Did she execute it? [1008]
       
      A. No. ....
       
      Q. Was Gidget capable of stopping this? 
       
      A. No.
      10
       
      11
       
      12
      VIII R. at 1030-31 (emphasis added). Dr. McCarty testified that the defendant's primary personality, Gidget, does not control the other personalities. Id. at 987.
      13

      Dr. Conroy and Dr. McCarty thus agreed that, at the time of the kidnapping, defendant was suffering from MPD and that her dominant or host personality, "Gidget," did not consciously participate in the abduction.[6] Neither expert, however, could establish that the alter personality in control of defendant at the time of the offense was legally insane, i.e., "unable to appreciate the nature and quality or the wrongfulness of [defendant's] acts." 18 U.S.C. § 17(a). The government expert, Dr. Conroy, believed that "[e]ach of the personalities taken alone knew, or was very capable of knowing, what she was doing and of making moral judgments." II R. at 21.

      From these underlying conclusions, Dr. Conroy's report stated that there were two possible views on legal responsibility: (1) that in light of the presence of a host personality and several alter personalities, if the statute means that all alters, or at least the host personality, must be fully aware of the nature, quality, and wrongfulness of an act, then Denny-Shaffer was not responsible at the time of the abduction; and (2) on the other hand, if an MPD victim is viewed as a single individual with varying personality components, and not divided as separate people, the issue changes; in such a case the question would be whether the personality in control at the time of the offense was unable to understand the nature, quality, and wrongfulness of her acts. If this is the proper interpretation of the statute, then the defendant did suffer from a significant mental illness, but it was not such as to render her unable to understand the nature, quality, and wrongfulness of her acts.[7]

      Dr. McCarty, on the other hand, was unable to render an opinion one way or another about the controlling alter or alters' being able to appreciate the nature and quality or wrongfulness of their conduct. See VIII R. at 1136-37.

      The American Psychiatric Association defines MPD via two criteria:

      14
      [1009] A. The existence within the individual of two or more distinct personalities or personality states (each with its own relatively enduring pattern of perceiving, relating to and thinking about the environment and one's self).
       
      B. Each of these personality states at some time, and recurrently, takes full control of the individual's behavior.
      15

       

      AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS § 300.14 (3d ed. rev. 1987) [hereinafter DSM-III-R]. Dr. McCarty noted that there are cases of MPD in which the alters are entirely separated with respect to memory, perceptions, emotions, and identity, so that no one personality knows about any of the others. See VIII R. at 968.[8]

      IV
       
      THE TRIAL JUDGE'S RULINGS

       

      The trial judge held that the evidence was insufficient to raise the insanity defense, stating:

      16
      [W]e must look at the personality in control at the time of the act, and determine if that personality was able to understand the nature, quality, or wrongfulness of the act ....
       
      ....
       
      This record is void of any information or any testimony which would indicate whether the acting personality could or could not appreciate the nature and quality of the act or whether it was wrongful, and ... the defendant has the burden of proving the defense of insanity by clear and convincing evidence
       
      .....
       
      I feel that there is no testimony to support the submission of the [insanity defense] instruction under the view that I have taken concerning the application of the defense of insanity in this multiple personality context.
      17

       

      VIII R. at 1147-48, 1153.

      The defendant argues that the stringent requirement imposed by the judge in these [1010] circumstances was error. She maintains that when the evidence, as here, sufficiently demonstrates that the defendant is suffering from a multiple personality disorder and that there is an identified host or dominant personality, and that this personality was not conscious of the planning or carrying out of the wrongful conduct, then a sufficient showing has been made to require submission of the defense to the trier of fact under 18 U.S.C. § 17. See Appellant's Brief-in-Chief at 44-50. The government, on the other hand, supports the restrictive view of the evidence adopted by the trial judge, arguing that only evidence as to the mental state of the alter personality or personalities in control at the time of a wrongful act is relevant. Brief of Appellee at 18-20.

      V
       
      AVAILABILITY OF THE INSANITY ISSUE FOR APPEAL

       

      Before we turn to the insanity issue we will deal with the government's claim, made for the first time in this Court, that Denny-Shaffer waived her right to appeal the district court's denial of an instruction on her insanity defense. Noting that after the judge rejected her insanity defense, she elected to waive trial by jury and have her guilt or innocence determined by the judge, the government claims that she thus waived all claims of error "peculiar to a jury trial." See Brief of Appellee at 25.

      The government argues that the issue is: "Whether a defendant, convicted in a bench trial, can raise an issue concerning the failure to give an instruction." Brief of Appellee at 1. This formulation is flawed, as it fails to recognize the underlying substance and extent of the trial judge's rulings. While the judge did refuse any instructions to the jury on the insanity defense, he did so because he first ruled that due to insufficiency of evidence, the possibility of a verdict or a court finding of "not guilty only by reason of insanity," 18 U.S.C. § 4242(b), was "out." IX R. at 1172-73. The judge himself as trier of the facts refused to consider the defense,[9] in addition to denying any instruction to the jury on insanity. These actions by the judge are appealable in our judgment, and the issue whether the insanity defense was sufficiently raised by the evidence was not waived.

      We reject the government's waiver argument for several reasons. First, this waiver contention was not made in the district court at any time. At the close of the hearing, when the district judge announced his views on the insanity defense, he referred to the appeal to this court which was reasonably certain to follow. See IX R. at 1172-73. Defendant elected to waive trial by jury only after the district court had made its legal ruling that the evidence on the insanity defense was insufficient to present a submissible defense. Thus the circumstances do not support an inference of an intent to waive this key issue.

      Defense counsel confirmed that she had rested her case after announcement of the judge's ruling. Then the judge and counsel discussed the issues for the fact finder as guilty, not guilty, or not guilty by reason of insanity. See id. at 1150. Rejecting that formulation of the issues, the court flatly stated that the issue of not guilty by reason of insanity was "out," saying that the defense was no longer an option for the jury or the court if it was to be the finder of fact. See id.; see also IX R. at 1172 ("it won't be a defense in this case").

      After this pronouncement by the judge, defense counsel stated that it did not make sense to present any argument on insanity — it would have been pointless because she would not have been allowed to argue it to the jury. See VIII R. at 1150. The court responded: "No, you can't. I wouldn't permit you to." Id. at 1151 (emphasis added). Only then did defense counsel say that the "thing to do is to waive the jury." Id. However, defense counsel clearly stated that she opposed the underlying ruling, and her objection was noted by the court, which said "[s]urely." Id.

      [1011] The district judge's comments show his recognition of defendant's reservation of her right to appeal his ruling:

      18
      I will find that defendant has waived her right to a jury trial solely because of the court's ruling, and that in order to be entitled to instruction on the affirmative defense of insanity she needs to present evidence that the acting alter was unable to appreciate the nature and quality or wrongfulness of her actions. I will find that the waiver of defendant's right to a jury trial operates for this proceeding only; that is, this trial, and that if there is a retrial, her right to a jury trial is not waived for that retrial or further trial. I will find further that the decision which I will make in connection with guilt or innocence is not made in reliance on any evidence which related to the defendant's claimed insanity at the time of the offense.
      19

       

      IX R. at 1160-61 (emphasis added). The government stated no objection or claim of waiver by defendant's waiver of jury trial as the posture of the case was shaped for defendant's appeal.

      The trial judge explained to the jury the essence of his ruling — that the insanity defense was one which could be taken advantage of only by the personality in control at the time the baby was taken. See IX R. at 1172. The judge said he had advised counsel that the insanity defense would not be submitted: "[I]t won't be a defense in this case, and [so] counsel ha[ve] decided to go forward with the case without the jury." Id. Arguments were waived and the court announced that it found Denny-Shaffer guilty. See id. at 1175.

      Thus the district judge did not merely reject one or more proposed jury instructions on the insanity defense. Rather, he rejected the insanity defense as not being available to defendant at all. See United States v. Whitehead, 896 F.2d 432, 435 (9th Cir.) (affirming a district court's refusal to instruct the jury on the insanity defense because the evidence adduced could not have established "with convincing clarity" that the defense was applicable), cert. denied, 498 U.S. 938, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990). Defense counsel specifically objected to the rejection of the insanity defense, stating that there was sufficient evidence to go to the jury on the insanity issues proposed by the defendant's requested instructions. IX R. at 1168.[10]

      It has been held that jury trial waivers do not operate to waive appellate review of certain underlying claims of error. For example, in Government of Canal Zone v. Davis, 592 F.2d 887 (5th Cir.1979), the defendants had feared that the jury composition was suspect. They thus moved to inspect the records kept by the court clerk that related to the selection and composition of the jury. When the district court denied that motion, the defendants elected to waive jury trial and be tried by the court on stipulated facts. The government argued that the waiver of jury trial operated as an abandonment of their right to challenge the error on appeal. The Fifth Circuit disagreed, finding that rather than waiving jury trial per se, the defendants had instead waived "a trial by a jury of suspect composition." See 592 F.2d at 889. In the instant case, one might say that rather than waiving her right to a jury trial per se, Denny-Shaffer merely waived trial by a jury which was to be prevented by the court from considering her only defense.[11]

      [1012] In sum, as the trial judge below clearly recognized, defendant's procedure in no way amounted to a waiver of her right to appeal and argue that a submissible insanity defense was presented in accord with 18 U.S.C. § 17(a). The issue was not waived and will be considered on its merits.

      VI
       
      THE INSANITY DEFENSE
       
      A
       
      The Background of the Defense

       

      Our criminal justice system punishes those it convicts for many reasons, chief among them being retribution against the criminal, deterrence of future crimes, and rehabilitation of the criminal. See Kelly v. Robinson, 479 U.S. 36, 49, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986). However, we hold accountable only those who are morally culpable for their conduct; historically we have not held "the very crazy" morally accountable for at least some of their actions. See Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability, 39 UCLA L.REV. 1511, 1521 (1992); Stephen J. Morse, Excusing the Crazy: The Insanity Defense Reconsidered, 58 S.CAL.L.REV. 777, 781 (1985) [hereinafter Morse]. In principle, the insanity defense can be traced back through at least 1,000 years of British law, and perhaps back as far as Roman, Christian, and Judaic law. See Ira Mickenberg, A Pleasant Surprise: The Guilty But Mentally Ill Verdict Has Both Succeeded in Its Own Right and Successfully Preserved the Traditional Role of the Insanity Defense, 55 U.CIN.L.REV. 943, 953-54 (1987); Morse, 58 S.CAL.L.REV. at 781 & n. 5.

      The point to be gleaned from this discussion is simple: Whatever the specific formulation of the defense has been throughout history, it has always been the case that the law has been loath to assign criminal responsibility to an actor who was unable, at the time he or she committed the crime, to know either what was being done or that it was wrong. This basic tenet has apparently been entirely unaffected by advances in medicine or psychology. See Michael L. Perlin, Unpacking the Myths: The Symbolism Mythology of Insanity Defense Jurisprudence, 40 CASE W.RES.L.REV. 599, 658-66 (1990) [hereinafter Perlin]. As the first Justice Harlan noted nearly one hundred years ago, while one of the goals of the criminal justice system is to punish criminals and protect public safety, some "crimes of the most atrocious character" must not be the subject of criminal sanctions if the imposition of such sanctions would require the courts "to depart from principles fundamental in criminal law, and the recognition and enforcement of which are demanded by every consideration of humanity and justice." Davis v. United States, 160 U.S. 469, 493, 16 S.Ct. 353, 360, 40 L.Ed. 499 (1895).

      B
       
      MPD, Denny-Shaffer, and § 17(a)

       

      The district court rejected the insanity defense as not submissible to the jury because "[t]his record is void of any information or any testimony which would indicate whether the acting [alter] personality could or could not appreciate the nature and quality of the act or whether it was wrongful." VIII R. at 1147-48, 1150. The judge thus limited consideration of the evidence to that dealing with the alter or alters acting at the time of the offense, requiring proof as to that alter or alters to satisfy the statute, and denying consideration of the evidence dealing with the dominant or host personality of the defendant to satisfy the insanity defense statute as the judge construed it.

      The defendant argues that the judge erred in his ruling construing § 17. She maintains that the proof was sufficient to raise a submissible insanity defense with a [1013] reasonable and proper interpretation of the Act. We agree. We are convinced that the proof was sufficient, given reasonable and proper interpretation of the statute, for the trier of fact to find that the defendant had shown by clear and convincing evidence that, as a result of a severe mental disease or defect, she was not guilty by reason of insanity since her dominant or host personality was neither aware of nor in control of the commission of the offense and thus was unable to appreciate the nature and quality or wrongfulness of the conduct which the alter or alters carried out. As noted, Dr. McCarty testified that in Denny-Shaffer's case, "[t]he illness was serious and severe." VIII R. at 1030.[12]

      Nothing in the language of the statute itself provides a clear guide to its application here.[13] Nor is there anything in the legislative history we have indicating the answer to our question. Indeed, there is no mention of MPD or dissociative disorders in that history.[14] This is not surprising, considering the fact that Congress appeared to be primarily concerned with shifting and increasing the burden of proof in insanity defense cases, as well as eliminating the volitional prong of the defense in order to avoid its unwarranted application in some cases, [1014] unlike this one, in which the available expert witnesses disagreed as to the defendant's mental condition. See S.Rep. No. 255, 98th Cong., 2d Sess. 222-23 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3404-05.

      We are convinced that the trial court's interpretation of § 17 is unreasonable in restricting the focus of the court and jury narrowly to the alter or alters cognizant of the offense, and ignoring proof that the dominant or host personality was not aware of the wrongful conduct. We are instructed that such "[l]iteral interpretation of statutes at the expense of the reason of the law and producing absurd consequences or flagrant injustice has frequently been condemned." Sorrells v. United States, 287 U.S. 435, 446, 53 S.Ct. 210, 214, 77 L.Ed. 413 (1932). The Court continued:

      20
      "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter."
      21

      Id. at 447, 53 S.Ct. at 214 (quoting United States v. Kirby, 74 U.S. (7 Wall.) 482, 486, 19 L.Ed. 278 (1869)). It has long been recognized that "absurd results are to be avoided." United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); see also United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940); United States v. Ryan, 284 U.S. 167, 175, 52 S.Ct. 65, 68, 76 L.Ed. 224 (1931); Resolution Trust Corporation v. Westgate Partners, Ltd., 937 F.2d 526, 531 (10th Cir.1991). In Ryan the Court stated that

      22
      [a] literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose.
      23

      284 U.S. at 175, 52 S.Ct. at 68.

      Here there was substantial evidence presented by the defendant that the defendant's host or dominant personality was unaware there was to be an abduction by an alter personality and was not capable of preventing it. VIII R. 1030-31. Thus not only was the host personality unable to appreciate the nature of the abduction, she did not even grasp that it was being committed. Yet the government would have us hold that, because one or more of the alter personalities knew what was happening and the experts are unable to say that those personalities could not appreciate the nature and quality or wrongfulness of the acts, the defense is wholly unavailable to Denny-Shaffer.

      We find no support for such a restrictive interpretation in the wording of § 17 or in the legislative history. We should not make a guess in such circumstances on the construction of the statute, see Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980), since "probability is not a guide which a court, in construing a penal statute, can safely take," United States v. Wiltenberger, 18 U.S. (5 Wheat.) 76, 105, 5 L.Ed. 37 (1820).

      Our conclusion is further supported by the principle that penal statutes are to be strictly construed against the government. See Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974). Laws which expressly define or limit punishment are considered penal. See 3 Norman J. Singer, SUTHERLAND STATUTORY CONSTRUCTION § 59.02, at 96 (5th ed. 1992) [hereinafter SUTHERLAND]. The principle is based on the idea that "before a person can be punished his case must be plainly and unmistakably within the statute." Id. § 59.03, at 105. A statute which grants to defendants an affirmative defense is simply the logical flip side of a statute which defines criminal conduct. By defining instances in which conduct that has otherwise been defined as criminal will not be punished, such a statute in effect defines when that conduct will be punished. Therefore, before a defendant should be denied the benefit of an affirmative defense provided by statute, his case must be plainly beyond that statute's reach. The insanity defense provided by § 17 is an affirmative defense "to a prosecution under any Federal statute," and we [1015] should apply the principle of construction favoring the defendant in applying it.

      This principle is not new. In Waters v. United States, 328 F.2d 739, 742 (10th Cir. 1964), this court reviewed a conviction under the Internal Revenue Code and was required to construe the statutes of limitations, including a general three-year limitation. This statute, which was more favorable to the accused, was held to apply. In choosing that statute this court stated that "[the limitation] is to be liberally interpreted in favor of the accused." Id. at 742; see also State of Connecticut v. Paradise, 189 Conn. 346, 456 A.2d 305, 308-09 (1983) ("statutes of limitation in criminal cases are to be construed liberally in favor of the accused"); 3 SUTHERLAND § 59.02, at 96-97, 102 (enumerating statutes defining or limiting punishment and classifying statutes of limitations for prosecutions as penal and subject to strict construction).

      We are persuaded that in light of the long-standing rules of construction we have noted, the trial court's interpretation of § 17 was error. Instead of interpreting the statute to limit consideration of the evidence to that concerning a particular alter's mental state at the time of the offense, the statute should have been construed to permit consideration of the evidence showing the lack of participation, awareness, or control of the offense conduct by the host or dominant personality.

      It is instructive to consider what the members of the Senate Subcommittee on Criminal Law were trying to do when the bills which were the precursors of § 17 were under consideration. As Senator Specter, the subcommittee's chairman, put it, they were attempting to determine whether the then-current legal test of insanity "ma[de] sense in psychiatric terms and in legal terms," see Limiting the Insanity Defense at 221 (Senator Specter), and to insure that "when we try to protect society from acts of violence [we] have an appropriate balance for the rights of individuals, and for those who are really insane," id. at 241. The subcommittee clearly felt that the government has an obligation to treat rather than punish the mentally ill. See id. at 36 (statement of Senator Hatch).

      In attempting to come to grips with what the standard for exonerating a defendant should be, the subcommittee discussed several cases in which defendants had in fact been found not guilty by reason of insanity. See id. at 242-50.[15] In discussing those cases, Senator Specter noted that if a mental disease "eliminated [the defendant's] knowing of the intentional act, then I would agree that, by civilized standards, [the defendant] should not be responsible." Id. at 246 (emphasis added). This discussion occurred before what was to become § 17 was drafted. Nevertheless it indicates to us that the drafters felt that, whatever the wording of the statutory definition of the defense actually turned out to be, it would be applicable to defendants rendered actually unable to know about their actions as a result of a mental disease or disorder.

      We must remember that the issue on appeal is only the narrow one of whether the evidence before the trial judge was sufficient to raise an insanity defense.[16] The Eleventh Circuit stated the test under § 17, with which we agree, in United States v. Owens, 854 F.2d 432 (11th Cir.1988), where an instruction was held to be required:

      24
      We hold that, where the issue of insanity has otherwise been properly raised, a federal criminal defendant is due a jury instruction on insanity when the evidence would allow a reasonable jury to find that insanity has been shown with convincing clarity. Recalling the jury's right to determine credibility, to weigh the evidence, and to draw justifiable inferences of fact, the trial judge must construe the evidence [1016] most favorably to the defendant. The court also needs to remember that, although the "clear and convincing" standard is a fairly high one, "clear and convincing" does not call for the highest levels of proof. If evidence would permit the jury to find to a high probability that defendant was insane, an insanity instruction is required.
      25

      854 F.2d at 435-36 (footnotes omitted) (emphasis added); see also United States v. Whitehead, 896 F.2d 432, 435 (9th Cir.), cert. denied, 498 U.S. 938, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990) (adopting the Owens test). If the evidence raises a defense, under the general rule it is for the jury, and not the judge, to determine whether a given psychiatric diagnosis, if accepted, brings the accused within the legal definition of insanity. See Taylor v. United States, 222 F.2d 398, 404 (D.C.Cir.1955); Stewart v. United States, 214 F.2d 879, 882 (D.C.Cir.1954). In determining whether error was committed in rejecting the defense and refusing to instruct on it under 18 U.S.C. § 17, our review is de novo. Whitehead, 896 F.2d at 435.

      Here there is evidence for the defendant plainly sufficient to support inferences by the trier of fact that Denny-Shaffer suffers from a severe mental defect or disease [MPD]; that at the time of the abduction,[17] her dominant or host personality was not in control so as to cause commission of the offense, and was not aware that an alter personality or personalities were the cognizant parties controlling the physical actions; that as a result of defendant's severe mental disease or defect, the host or dominant personality was unable to appreciate the nature and quality or wrongfulness of the conduct which the alter or alters controlled; and that defendant had proven these facts by clear and convincing evidence.

      We hold that under the test stated in Owens, the evidence presented here was thus sufficient to call for the submission of the insanity defense to the trier of fact, given the reasonable application of § 17 under the rules of construction that apply.[18] In construing the statute, we note again that its purposes were principally to shift to the defense the burden of proof on insanity and to increase that burden, and to eliminate the volitional prong of the defense.[19] It is apparent from the face of the statute that it was not intended to eliminate the insanity defense, but rather to limit it to persons whose perceptions, rather than their volitions, were impaired by severe mental disease or defect. MPD is such a disease or defect and both the historical purposes of the insanity defense, as well as the objectives of the Insanity Defense Reform Act, can be vindicated by construing "defendant" in § 17(a) to permit consideration of evidence concerning the host or dominant personality and his or her appreciation of the nature, quality, and wrongfulness of criminal conduct. The rulings of the trial judge in this case in effect struck all the evidence showing that Denny-Shaffer's host or dominant personality was not cognizant of the wrongful conduct of the alter or alters and thus did not "appreciate the nature and quality or wrongfulness" of her acts within the meaning of § 17; the rulings were in error. Accord People v. Lisnow, 88 Cal. [1017] App.3d Supp. 21, 151 Cal.Rptr. 621 (1978) (error to strike evidence of fugue or dissociative state produced by traumatic neurosis tending to prove defense of unconsciousness).

      Therefore, we are convinced that it was error for the statute to be construed to restrict consideration of the evidence to that pertaining to the alter or alters that planned and carried out the abduction, and to reject as a matter of law consideration of the evidence that the host or dominant personality was unaware of the wrongful conduct here.[20]

      C
       
      Related Case Law on MPD

       

      Decisions regarding proper construction of insanity defense statutes where MPD was involved are not numerous. We have been unable to find any federal case where such a defense involving MPD was asserted under § 17. Moreover, the state cases involving this mental disorder are few in number and of limited assistance because of the variance in the nature of the insanity defenses in the states.

      The government relies on State of Ohio v. Grimsley, 3 Ohio App.3d 265, 444 N.E.2d 1071 (1982), and its progeny. There the argument was made that the defendant's MPD state was such that she was not acting consciously or voluntarily at the time of the offense of driving under the influence of alcohol and could not be guilty. The court held that the defense failed. The claim that the defendant was dissociated from her primary to a secondary personality and thus was not acting consciously or voluntarily was rejected as not supported by the evidence. Without analysis, the court said there was only one person driving and one person accused of drunken driving and that the "evidence failed to demonstrate that Jennifer [the alter] was unconscious or otherwise acting involuntarily." 444 N.E.2d at 1075-76.

      The Georgia Court of Appeals relied on the Grimsley decision in Kirkland v. State of Georgia, 166 Ga.App. 478, 304 S.E.2d 561 (1983). There an insanity defense was premised on a multiple personality disorder which the trial judge found to have been properly diagnosed as psychogenic fugue. The judge rejected the insanity defense and found the defendant "guilty but mentally ill" under a provision in Georgia law for such a finding.

      On appeal, Kirkland argued that the trial judge's ruling was contrary to the evidence and the law and that it was error not to find her "not guilty by reason of insanity." The Georgia Court of Appeals followed the reasoning of the Grimsley opinion that there "was only one person driving the car and only one person accused of drunken driving." The Georgia court noted that this ruling in Grimsley was made "without elaboration" but then likewise concluded that the "law adjudges criminal liability of the person according to the person's state of mind at the time of the act; we will not begin to parcel criminal accountability out among the various inhabitants of the mind." 304 S.E.2d at 564. Without further elaboration itself, the Kirkland opinion rejected the defense raised there on the MPD evidence.

      Kirby v. State of Georgia, 201 Ga.App. 116, 410 S.E.2d 333 (1991), was similar to Kirkland. The defendant argued that rejection of his insanity defense based on a multiple personality disorder was error. Without further analysis, the Georgia court followed its earlier Kirkland ruling and quoted the Kirkland analysis we have noted above.

      We are not persuaded by these cases. We find no convincing analysis in Grimsley, Kirkland, or Kirby which would justify rejection of an insanity defense as not submissible under § 17 for the trier of fact when evidence as strong as that in Denny-Shaffer's case on her mental disorder is presented.

      The government also relies on State of Hawaii v. Rodrigues, 67 Haw. 70, 679 P.2d 615, cert. denied and appeal dismissed, 469 U.S. 1078, 105 S.Ct. 580, 83 L.Ed.2d 691 (1984). There the state appealed the grant [1018] of an acquittal by the trial judge on a pretrial motion to determine competence at the time of the offense. The insanity defense was asserted on the basis of MPD. The court summed up the expert testimony as showing that the defendant had one to three personalities; that personality A could appreciate the wrongfulness of his acts and conform his conduct to the requirements of the law, but could not control B; B could understand the wrongfulness of his conduct but could or could not (depending on whose testimony was more persuasive) control his behavior in accord with the requirements of the law; and C did not care about whether his acts were right or wrong, or care about the consequences of his conduct. See 679 P.2d at 620.

      The Hawaii court held that the judge erred in granting the pretrial acquittal without giving the matter to the jury. Id. The court held that the question of sanity at the time of the offense and the corresponding question of which personality was present at the time of the offense were questions properly for the trier of fact. Id. The statement of the court relied on by the government was that "[r]ecent cases dealing with the multiple personality defense have held it is immaterial whether the defendant was in one state of consciousness or another, so long as in the personality then controlling the behavior, the defendant was conscious and his or her actions were a product of his or her own volition." 679 P.2d at 618. Again, no persuasive analysis was made which would support rejection of the insanity defense in a case like this. Moreover, the conclusion of the court in Rodrigues was that while the acquittal was error, the insanity defense should have been submitted to the jury — which is our conclusion here.[21]

      D
       
      Defendant's Potential Criminal Responsibility for Actions Other than the Abduction of the Infant

       

      The trial judge based his rulings — rejecting consideration of the insanity defense and refusing any instructions to the jury thereon — on the state of the evidence as to the alter personality or personalities said to be in control at the time of planning and carrying out the actual abduction of the child. Hence we first focused on the evidence as to that period of time and stated our holding that it was error to deny consideration of proof that the host or dominant personality was unable to appreciate the nature and quality or wrongfulness of her acts at the time of the abduction. However, the kidnapping statute envisages a continuing offense and the evidence of record spans a broader time frame. Title 18 U.S.C. § 1201(a) provides in part:

      26
      (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when —
       
      (1) the person is willfully transported in interstate or foreign commerce....shall be punished by imprisonment for any term of years or for life.
      27

      The broad language of § 1201(a) defines a continuing offense. See United States v. Garcia, 854 F.2d 340, 343 (9th Cir.1988), cert. denied, 490 U.S. 1094, 109 S.Ct. 2439, 104 L.Ed.2d 995 (1989). The Ninth Circuit has held that merely confining a victim, after she [1019] willingly began to journey with the defendant, sufficed to serve as a violation of the statute even though the victim was not physically abducted or initially taken by force. See United States v. Redmond, 803 F.2d 438, 439 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1963, 95 L.Ed.2d 534 (1987); United States v. Wesson, 779 F.2d 1443, 1444 (9th Cir.1986) (per curiam).[22] We agree with these interpretations of § 1201(a) and will accordingly consider the application of the kidnapping statute here to the actions of defendant in carrying out the abduction and also her actions subsequent to the abduction of the infant.

      There is evidence in the record, considering this kidnapping as a continuing offense, which could support inferences that the defendant violated § 1201(a) while the host or dominant personality was active, which we hold is the proper focus in the multiple personality disorder case shown by this record. Under the Redmond and Wesson cases, we should consider the evidence as to actions in Texas and Minnesota as a basis for inferences that the host personality became aware of the wrongfulness of confining and holding the baby after the host learned that it was in possession of the child.[23] We feel that such evidence could support adverse inferences of guilt under § 1201(a) of confining and holding the baby if the host in fact had learned that the child had been kidnapped.

      On the other hand, there is substantial evidence that raises an insanity defense for the defendant, viewed as the host personality, respecting such confining or holding the baby after the abduction. There is expert testimony by Dr. McCarty that MPD victims tend to cover up acts committed by their alters.[24] This proof, together with [1020] some evidence that the defendant's host or dominant personality sought to conceal the baby after the abduction,[25] and the proof discussed earlier of the severity of this MPD case, all raised a question of fact on the insanity defense for the jury. We are convinced that the substantial showing of the disorder in defendant's mental perceptions presented a genuine issue whether the defendant's host or dominant personality, at these later times after the abduction of the child, was unable to appreciate the nature and quality or wrongfulness of her acts during the subsequent confinement and holding of the child.

      Thus if the evidence is substantially the same on retrial, the insanity defense should be submitted to the jury as it bears on the alleged violations of the kidnapping law in carrying out the abduction and also in the later actions during the confinement, holding, and transportation of the infant.[26]

      We note that several of the actions in question before and after the abduction of the infant here were arguably steps that aided or abetted the accomplishment of the kidnapping. This might suggest that the host personality could be found liable for aiding or abetting the alter or alters who abducted the child. Since the case is to be remanded for a new trial, we will note that no aiding and abetting theory in these circumstances should be submitted to the jury. "One must ... aid or abet someone else to commit a substantive offense. One cannot aid or abet himself." United States v. Martin, 747 F.2d 1404, 1407 (11th Cir.1984).[27] We are not persuaded that in determining liability for aiding and abetting, alter personalities should be recognized as distinct legal persons, with independent status under the criminal laws, who may be aided and abetted.[28] As we have held, it is the host or [1021] dominant personality which must be the focus of the determination of possible criminal responsibility respecting the kidnapping charge and the insanity defense asserted here.

      VII

       

      In sum, we hold that the trial judge erred in rejecting evidence respecting the ability or inability of the host or dominant personality to appreciate the nature and quality or wrongfulness of her acts in kidnapping the infant here, and in limiting his consideration strictly to evidence pertaining to the alter or alters that were in control at the time of the abduction, in making his rulings on a possible insanity defense under 18 U.S.C. § 17. We therefore must reverse and remand for a new trial.

      On the retrial, if the evidence bearing on the alleged violation of 18 U.S.C. § 1201 and the insanity defense is substantially the same as is before us, the insanity defense should be submitted to the jury.[29] Along with other required instructions concerning the kidnapping charge, the jury should be instructed that it should find whether the government has carried its burden of proving the essential elements of the offense, including transportation in interstate commerce by someone after the abduction; whether the defendant violated the kidnapping law by unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting or carrying away the infant and holding it for ransom, reward or otherwise; and that the various actions of the defendant taken during the continuing course of conduct in carrying out the abduction and thereafter until the recovery of the infant may be considered.

      In connection with the insanity defense asserted, the jury should be instructed in accord with 18 U.S.C. §§ 17 and 4242(b) that the defendant has the burden of proving her insanity defense by clear and convincing evidence; that by such evidence she must show that she was suffering, at the times in question, from a severe mental disease or defect; that as a result thereof, she was unable to appreciate the nature and quality or the wrongfulness of her actions in committing any violations found; and that if she has made such a showing then she is entitled, although she be found to have committed the offense charged, to be found not guilty only by reason of insanity.[30]

      The jury should be further charged that in connection with the insanity defense presented here, it should determine whether defendant has carried her burden of showing a severe mental disease or defect from the evidence of her alleged multiple personality disorder, with an alleged host or dominant personality and an alter personality or personalities present and controlling her actions [1022] at various times; that if the jury so finds, then its determination of criminal responsibility and whether the insanity defense has been established should be based on the evidence concerning the actions and the ability of the host or dominant personality to appreciate the nature and quality of the defendant's acts or the wrongfulness thereof during the carrying out of the abduction and subsequent acts until the recovery of the infant.

      Accordingly, the judgment of conviction and the sentence imposed are REVERSED and the case is REMANDED for further proceedings in accord with this opinion.

      LOGAN, Circuit Judge, concurring:

      I concur in most of what is said in Judge Holloway's opinion and its result. I agree that if defendant has a host personality and proves by clear and convincing evidence that an alter or alters were in control when the crime was committed, and that the host personality had no control over the alter personality during the commission of the crime, then defendant is entitled to a verdict of not guilty by reason of insanity.

      I agree with the majority that if the individual has a medically definable host personality, then the "defendant" is that host personality for purposes of 18 U.S.C. § 17. I think this follows from psychiatric science's best possible definition of who the individual "is." Consequently, if during the events in question an alter was the extant personality, the defendant must ordinarily be given the opportunity to prove that the host was unaware of the alter's actions, or did not appreciate their wrongfulness. This standard will not open the floodgates to a host of "the devil made me do it" defenses. The defendant must satisfy her burden of production by presenting credible evidence that she suffers from multiple personality disorder (MPD), such that a jury could find by clear and convincing proof that the host personality was not in control or did not understand the nature and quality or wrongfulness of the alter's actions.

      I write principally to note that it may not be as difficult for the government to prevail as Judge Holloway's opinion might suggest. Federal Rule of Evidence 704(b) prohibits expert witnesses from expressing a view on the ultimate question of insanity at a trial. Thus, as Judge Holloway's opinion acknowledges, if there is sufficient evidence to permit the submission, then the determination of whether the defendant had the mental capacity "to appreciate the nature and quality or the wrongfulness of [her] acts," 18 U.S.C. § 17(a), is strictly a jury question. Because the district court rejected the defense theory of the insanity defense at the close of the defense's presentation, the government did not present rebuttal testimony. The record contains only the report of the government's expert.

      Judge Holloway's opinion does not focus on the possibility that the host personality was a participant in planning the abduction, which, of course, also would subject defendant to liability. In the instant case there were pretentions of pregnancy over a long period before the abduction. Apparently hospitals were scouted, checks were made of defendant's ex-boyfriend's blood type, and baby clothes were acquired. One or more elaborate schemes were concocted for defendant to acquire a baby. Human placenta and apparently blood were stolen from the hospital to create the impression of defendant's ostensible delivery of the abducted baby. The jury would be entitled to find these are the acts of a mentally disturbed but highly educated nurse host personality desperate to hold on to a lost boyfriend. As Judge Holloway's opinion notes, there was also a two-week period after the abduction during which the host personality was at least sometimes aware of her possession of the baby.

      The evidence is strong enough that I think it is a close question whether a reasonable jury could find a verdict of not guilty for Gidget, the host personality, on the insanity defense. But the defendant's psychiatrist testified that MPD individuals tend to cover up the acts committed by their alters, and if concealing evidence of the alters' activities is actually caused by MPD then it too fits into an insanity defense. I believe that this testimony of the defendant's psychiatrist, taken together with her testimony that the host personality Gidget had no part in the planning [1023] or the carrying out of this activity, is enough to create an issue for the jury's determination.

      Thus, I concur.

      [1] The federal insanity defense, governed by 18 U.S.C. § 17 (1988), was codified as part of the Insanity Defense Reform Act of 1984, Pub.L. No. 98-473, Title II, § 402(a), 98 Stat. 2057 § 20 (1984). The statute changed the pre-existing common law defense in two principal respects. First, the statute eliminated the volitional prong of the defense and thus "substantially narrow[ed] the [insanity] definition, which ha[d] evolved from case law...." S.Rep. No. 225, 98th Cong., 2d Sess. 222 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3404. Second, the statute shifted the burden to the defendant to prove the defense by clear and convincing evidence.

      The insanity test previously followed by this court was that of the American Law Institute Model Penal Code. This court held that where the mental capacity of the accused was put in issue, the proper charge to the jury, in part, was that mental capacity was an essential element of the crime charged; that before convicting the accused, the jury must be satisfied beyond a reasonable doubt not only that the accused committed the unlawful act, but that he was criminally responsible for his conduct; that a person is not criminally responsible for his conduct if, at the time of the conduct, "as a result of mental disease or defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law." Wion v. United States, 325 F.2d 420, 430 (10th Cir.1963) (en banc) (emphasis added), cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964). The "volitional prong" was the latter portion of the insanity issue emphasized above, which was eliminated by § 17. The new statute provides:

      § 17. Insanity defense

      (a) Affirmative defense. — It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

      (b) Burden of proof. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

      18 U.S.C. § 17 (1988).

      [2] According to Dr. McCarty, the witnesses who saw Denny-Shaffer at this photography session reported that her symptoms of pseudocyesis (false pregnancy) included not only a protruding stomach, but also swollen legs and ankles, blood-shot eyes, and difficulty walking and getting up from seated positions. To Dr. McCarty, that was consistent with psychologically induced pseudocyesis (an actual belief that one is pregnant, which can cause physical symptoms) as opposed to simply fastening a pillow to one's stomach to appear pregnant. See VIII R. at 1127.

      [3] Dr. Conroy is a member of the psychiatric staff at the Federal Correctional Institution in Lexington, Kentucky. We find no information in the record as to her academic degrees and experience, but no challenge is made to her qualifications to submit her opinion on the defendant's condition.

      [4] An MPD victim's "primary" or "host" personality is "the personality that has executive control of the body for the greatest percentage of time during a given time period." BENNETT G. BRAUN, TREATMENT OF MULTIPLE PERSONALITY DISORDER xiii (1986). An "alter" personality, on the other hand, is "any personality or fragment other than the host personality." Id.

      [5] Dr. McCarty received her bachelor's degree in bacteriology and botany from Iowa State University. In 1981, she received an M.D. from the University of New Mexico. Her studies were concentrated in the area of general adult psychiatry. Following a one-year internship and a three-year psychiatry residency at the affiliated hospitals at UNM, Dr. McCarty worked at the V.A. Hospital in Albuquerque where she did outpatient psychiatry. She also taught as an assistant professor at UNM.

      In 1986, Dr. McCarty became an attending psychiatrist at the Consultation Liaison Psychiatry Services at the University Hospital in Albuquerque. Since 1989, Dr. McCarty has been the Chief Psychiatrist for the Services. She is a member of the American Psychiatric Association, the American Society for Child Abuse, the International Society for the Study of Multiple Personality and Dissociative Disorders, and Alpha Omega Alpha (a medical honor society). She has previously testified as an expert witness in one criminal trial, one sentencing hearing, and several commitment and custody hearings. See VII R. at 846-51.

      The government objected to the admission of Dr. McCarty's testimony as an expert on the ground that she had insufficient experience in forensics. The judge overruled the objection and admitted her testimony as an expert. See id. at 856. No challenge is made to Dr. McCarty's qualifications on appeal.

      [6] Dr. Conroy's report stated that "Gidget" was unaware of the alters and first became aware of "Bridget" when "Bridget" spoke to the doctors in Albuquerque. See II R. at 13. However, Dr. Conroy also indicated that Denny-Shaffer had voluntarily given control to "Bridget" during much of the time she was in Gallup, New Mexico, and knew that "Bridget" was lying about being pregnant. See id. at 14, 20.

      [7] Dr. Conroy stated that

      [a] final opinion of the criminal responsibility of Bridget Denny-Shaffer is a matter for the trier of fact to determine exactly how the standard will be applied in this case. In the application of the standard provided by law, a Multiple Personality Disorder is unique. If the standard is taken to mean that all alters, or at least the host personality, must be fully aware of the nature, quality, and wrongfulness of an act, then Bridget Denny-Shaffer was not responsible at the time of the instant offense. Such an application would probably mean that no one suffering from Multiple Personality Disorder could be held responsible for anything unless all alters were co-conscious at all times, regardless of their mental status otherwise. Such is almost never the case.

      If, on the other hand, a Multiple Personality Disorder is viewed as a single individual with varying personality components and not divided as though he or she were a group of separate people, the issue changes. In such a case, the question would be whether, at the time of the instant offense, the personality in control suffered from a mental disease or defect such as to be unable to understand the nature, quality, and wrongfulness of their acts. If this is the appropriate application of the standard, then, in my professional opinion, at the time of the instant offense, Bridget Denny-Shaffer did suffer from a significant mental illness, but it was not such to render her unable to understand the nature, quality, and wrongfulness of her acts.

      II R. at 21.

      While legal conclusions by a government expert are proper under § 4242(a) and § 4247(c)(4)(B) for a report to the court regarding a defendant's responsibility at the time of an offense, under Rule 704(b) of the Federal Rules of Evidence (which was adopted as part of the Insanity Defense Reform Act) they are not proper for trial evidence purposes (i.e., for consideration by the jury). See United States v. West, 962 F.2d 1243, 1246-47 (7th Cir.1992) (per Will, J., with two judges specially concurring), reh'g denied.

      [8] In fact, the personalities can be so different that the differences may show up through physical symptoms. Dr. McCarty noted that different alters often require different eyeglass prescriptions. See id. at 1109. Different personalities may speak different languages, be different-handed, respond differently to physical tests such as electroencephalograms (EEGs) and Galvanic Skin Response tests, respond differently to medications, and score differently on psychological tests such as Rorschach tests and MMPIs (Minnesota Multiphasic Personality Inventories). See Elyn R. Saks, Multiple Personality Disorder and Criminal Responsibility, 25 U.C.DAVIS L.REV. 383, 396-97 & nn. 44-45 (1992) [hereinafter Saks].

      Denny-Shaffer exhibited many of these characteristics, as well as others which are consistent with complete dissociation into separate personalities. For example, when tested at Cedars Hospital in July of 1990, she exhibited a full-scale IQ score of 103, but when tested by Dr. Conroy in September of 1991 her full-scale IQ score was 122, an almost twenty percent increase. See VII R. at 750-51. Dr. Foote, Denny-Shaffer's examining psychologist, testified that such a large and statistically significant change in full-scale IQ scores suggested a change in Denny-Shaffer's cognitive functioning between the two test administrations. See id. at 750-54. Denny-Shaffer's variable cognitive abilities were confirmed by another witness, Erile Sue Casey, who had tutored her in algebra and geometry at the Bernalillo County Detention Center. See VI R. at 675. Ms. Casey testified that Denny-Shaffer on occasions seemed to forget concepts in the middle of tutoring sessions, while on other occasions she would make leaps in problem-solving ability that astounded Ms. Casey. See id. at 677-79.

      Denny-Shaffer also produced results on the Rorschach and MMPI tests which were indicative of MPD. For example, her Rorschach test results indicated what Dr. Foote referred to as "a kind of psychological duality," indicating the presence of more than one personality in the same body on several different occasions. See VII R. at 764-66. Denny-Shaffer took five MMPI tests that Dr. Foote was aware of. They showed fairly drastic changes over time. See id. at 792-802. Moreover, Dr. Conroy was apparently able to administer the test separately to the Gidget host and the Bridget alter. See id. at 802-03. The latter two tests indicated strong differences between the two personalities, most notably strong depression showings for Gidget as compared to little or no depression demonstrated by Bridget. See id. at 802-05. Dr. Foote further testified that he felt it was impossible to fake both an MMPI and a Rorschach test administered closely in time to each other, and that Denny-Shaffer's test results had other indicia of reliability apart from the internal MMPI anti-malingering features. See id. at 810-12. On the relatively low incidence of malingering and fakery in psychological profiling tests, and their resistance to such attempts at fakery, see Michael L. Perlin, Unpacking the Myths: The Symbolism Mythology of Insanity Defense Jurisprudence, 40 CASE W.RES.L.REV. 599, 714-16 & nn. 556-560 (1990).

      [9] The record shows no withdrawal by the defendant of the insanity defense from the judge's consideration when he decided on his verdict under 18 U.S.C. § 4242(b).

      [10] Denny-Shaffer waived her right to jury trial in anticipation of appealing the court's underlying ruling. The defendant in Ostrosky v. State, 704 P.2d 786 (Alaska Ct.App.1985), followed a similar procedure. He had requested a jury instruction and an opportunity to present testimony on the defense of reasonable reliance on a judicial decision; the trial judge refused to give the instruction and ruled the defense inapplicable as a matter of law. The defendant then waived his right to a jury trial on the express condition that he be permitted to appeal the judge's underlying rulings. See id. at 789. The appellate court found that the issue had been properly raised.

      As in Ostrosky, Denny-Shaffer's issue here was in fact "presented to, considered [and] decided by the trial court." Lyons v. Jefferson State Bank & Trust, 994 F.2d 716, 721 (10th Cir.1993) (internal quotes omitted). Denny-Shaffer also clearly pursued the issue below. See id. at 722. The fact that the trial court recognized the impending appeal is probative of the effective preservation of the insanity issue. See id. at 723.

      [11] When a case is tried to the court without a jury (no matter when that election is made), all errors of law made during the trial which were objected to and properly preserved for appeal are open for consideration by the appellate courts. See Boardman v. Toffey, 117 U.S. 271, 272, 6 S.Ct. 734, 734, 29 L.Ed. 898 (1886); Tyng v. Grinnell, 92 U.S. (2 Otto) 467, 469, 23 L.Ed. 733 (1876); Cooper v. Omohundro, 86 U.S. (19 Wall.) 65, 68-69, 22 L.Ed. 47 (1874); Insurance Company v. Folsom, 85 U.S. (18 Wall.) 237, 248-49, 21 L.Ed. 827 (1874); Dickinson v. The Planters' Bank, 83 U.S. (16 Wall.) 250, 258, 21 L.Ed. 278 (1873) (questions of law reviewable).

      [12] Such testimony on the severity of the mental illness is not violative of Rule 704 of the Federal Rules of Evidence. See United States v. Kristiansen, 901 F.2d 1463, 1466 (8th Cir.1990).

      [13] This court has reviewed convictions where an insanity defense was asserted under 18 U.S.C. § 17 in United States v. Holsey, 995 F.2d 960 (10th Cir.1993), and in United States v. Eagan, 965 F.2d 887 (10th Cir.1992). However, no issue similar to that raised here was involved in those cases.

      [14] In Senate Report No. 98-225, we find references to paranoid schizophrenia and schizophrenia, inadequate personality, and abnormal personality, but no reference to MPD or any other dissociative disorder. See S.Rep. No. 255, 98th Cong., 2d Sess. 222-23 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3404-05. We have examined the hearings before the Subcommittee on Criminal law of the Senate Committee on the Judiciary, as well as before the full committee, in which different proposals were considered for limiting the insanity defense. See Limiting the Insanity Defense: Hearings on S. 818, S. 1106, S. 1558, S. 1995, S. 2572, S. 2658, and S. 2669 Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. (1982) [hereinafter Limiting the Insanity Defense]; The Insanity Defense: Hearings on S. 818, S. 1106, S. 1558, S. 2669, S. 2672, S. 2678, S. 2745, and S. 2780 Before the Senate Comm. on the Judiciary, 97th Cong., 2d. Sess. (1982) [hereinafter The Insanity Defense].

      In these hearings, MPD was not mentioned. See, e.g., Limiting the Insanity Defense at 158 (schizophrenia and psychosis) (Senator Specter); id. at 184 (same) (article, Willard Gaulin, Legal Insanity: Gone Bonkers, WASHINGTON POST, June 20, 1982); id. at 186 (schizophrenia and "incoherent thinking") (article, Garland Y. DeNelsky, How Psychiatry Can Aid Courts, NEW YORK TIMES, June 1982); id. at 199 (schizophrenia) (Senator Specter); id. at 221 (process schizophrenia, major effective disorders, pseudo-neurotic schizophrenia, pathological ambivalence, paradoxical rage, paranoid personality disorder, borderline personality disorder) (Senator Specter); id. at 225 (claim by witness that most patients in his facility found not guilty by reason of insanity were schizophrenic) (statement of Dr. James L. Cavanaugh, Clinical Director, Section on Psychiatry and the Law, Department of Psychiatry, Rush-Presbyterian-St. Luke's Medical Center, Chicago, Illinois); id. at 253 (schizophrenia) (statement of Dr. Alan Stone, Professor of Law and Psychiatry, Harvard University, Chairman of the American Psychiatric Association Council of Government Policy and Law); id. at 257 (catatonic schizophrenia) (statement of Dr. Loren Roth, director of law and psychiatry, Western Psychiatric Institute and Clinic, University of Pittsburgh); id. at 381 (schizophrenias, personality disorders, retardation) (statement of Dr. Stuart B. Silver, superintendent, Perkins Hospital and assistant secretary for forensic services, State of Maryland); id. at 389-93 (schizophrenia and psychosis) (Stanley I. Gochman, Ph.D., Psychological Issues & the Insanity Defense: Legal, Moral & Psychological Considerations); The Insanity Defense at 29 (inadequate personality, abnormal personality, schizophrenia) (statement of Hon. William French Smith, United States Attorney General); id. at 146 (discussing DSM-III classification of mental disorders and mentioning psychogenic fugue, which is related to MPD, but never mentioning MPD per se) (attachment to statement of Frank Maloney, attorney, member of Board of Directors of National Association of Criminal Defense Lawyers). But see Limiting the Insanity Defense at 158 (in which Senator Specter and Mr. Woodrow Johnson, member of the jury in United States v. Hinckley, appeared to equate schizophrenia with "split" or "mixed" personality).

      The fact that MPD is nowhere mentioned is not fatal to § 17(a)'s application to an MPD victim, for courts have "never required that every permissible application of a statute be referred to in its legislative history." Moskal v. United States, 498 U.S. 103, 111, 111 S.Ct. 461, 467, 112 L.Ed.2d 449 (1990).

      [15] The participants in this discussion were: Senators Specter and Heflin; Dr. James L. Cavanaugh, Clinical Director, Section on Psychiatry and the Law, Department of Psychiatry, Rush-Presbyterian-St. Luke's Medical Center, Chicago, Illinois; Dr. Ernst Prelinger, Clinical Professor of Psychology and Psychiatry, Yale University; and Dr. Jonas P. Rappeport, Chief Medical Officer, Supreme Bench of Maryland.

      [16] The sufficiency of the evidence for submission of a mental condition issue is a question of law for the court. See United States v. Dennison, 937 F.2d 559 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 886, 116 L.Ed.2d 789 (1992).

      [17] In Part VI(D), infra, we discuss the possible criminal responsibility for the defendant's conduct subsequent to the abduction.

      [18] We do not hold that a factual showing or jury finding that a defendant suffers from MPD, without more, automatically satisfies § 17's requirements. Instead we hold that where the evidence would permit a jury to find that a defendant suffers from MPD and that the host personality was unaware of the criminal conduct at issue and did not participate in or plan that conduct, the jury may also find that the "defendant" satisfied § 17's requirements and thus return a verdict of "not guilty only by reason of insanity" pursuant to § 4242(b)(3). Accord United States v. Cameron, 907 F.2d 1051, 1060 n. 14 (11th Cir.1990) (mere diagnosis of defendant as schizophrenic at some past times does not necessarily imply that the defendant was legally insane at the relevant times, but a proffer of such evidence required a more probing inquiry into the defendant's mental state).

      [19] Congress chose to eliminate the volitional prong of the insanity defense because of virtually unanimous agreement amongst practitioners that there was no scientifically valid way of assessing volitional impairment. See S.Rep. No. 225, 98th Cong., 2d Sess. 226-29, reprinted in 1984 U.S.C.C.A.N. 3182, 3408-11. However, no such problems were reported with the perceptual prong of the defense. See sources cited supra note 2.

      [20] We have discussed mainly the host personality's awareness and conduct at the time of the abduction because that was the focus of the trial judge in making his critical ruling rejecting the insanity defense. We must, however, consider other aspects of the host personality's awareness and conduct during the period between the abduction and the arrest because of the continuing nature of the kidnapping offense charged under 18 U.S.C. § 1201. See infra Part VI(D).

      [21] By far the most extensive analysis by any state court was done by the Supreme Court of Washington in State of Washington v. Wheaton, 121 Wash.2d 347, 850 P.2d 507, 512-14 (1993). Finding that the record and the arguments of both the prosecution and defense failed to bring out enough information to make a reasoned choice between the two alternatives presented (which were identical to the choices presented by Denny-Shaffer and the government in this case) or to rule out other potential formulations of the defense in the case of MPD, the court declined to make a choice and affirmed the trial court's decision because of inadequacy in the record. See id. at 516-17.

      We have also considered Commonwealth v. Roman, 414 Mass. 235, 606 N.E.2d 1333 (1993), an MPD case which followed the Grimsley opinion's rationale, without helpful analysis, that the focus for criminal responsibility must be on the mental state of the individual at the time of the commission of the offense. No consideration is given in such mechanical decisions to the forceful position that in determining the individual's responsibility under the criminal law, evidence on the host or dominant personality's consciousness and actions should be of paramount importance, and not dismissed as irrelevant.

      [22]Cf. Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 235, 90 L.Ed. 198 (1946) (finding that the evidence failed to show that the defendants had confined the victim against her or her parents' wishes); accord Garcia, 854 F.2d at 345-46 (suggesting that the holding of two young girls by one defendant during a three month period following their actual physical abduction could suffice as a direct violation of the kidnapping statute).

      [23] Dr. McCarty testified on these matters in some detail:

      Q. What did Gidget tell you about what happened or what she knows occurred after being in the parking lot at the hospital in Las Cruces?

      A. She has very patchy memories, and she remembers driving. She still had the thought that they would go to Dallas. She remembers, I think, changing the baby's diaper, and she remembers, I think, a sign post that said "San Antonio."

      THE COURT: What was that?

      DOCTOR McCARTY: She remembers a road sign, "San Antonio."

      Q. What does she remember, then, after that?

      A. Then she remembers being in Bryan and, again, there are very patchy memories. She remembers going to an AA meeting with the baby, and actually — at that point she said that she introduced the baby as hers, and that's how she introduced it thereafter, but it was like that was a struggle, an internal struggle.

      Q. Now, what was her sense or her reaction in the parking lot at the hospital in Las Cruces?

      A. Just fear. I mean, she used those kinds of words, fear, shock.

      . . . .

      Q. What about Minnesota? What does Gidget tell you about Minnesota?

      A. The thing that she told me about in Minnesota was that she remembered saying good-bye to her mother and Meaghan, and she left a card for them — or I think for both of them; that she has little snatches of memory, I think, about people holding the baby, like Shanhi holding the baby, but the most — the one that I can actually pin down is when she left.

      VIII R. at 1007-10.

      Q. [cross-examination by government counsel] Now, it's your testimony, based on what the defendant told you, that at certain times after she took the baby the primary personality knew that she was in possession of a child?

      A. Yes.

      Q. Is that true?

      A. Yes.

      Q. And at times that primary personality introduced that child as her own?

      A. Yes.

      Id. at 1065.

      [24] Dr. McCarty testified that one of the effects of MPD is to cause the host personality to try to "cover for" or ignore the actions of the alters. See, e.g., VII R. at 923-24, 929-31; VIII R. at 940-41 (the host attempts to construct explanations for unexpected events caused by alters); id. at 942 (the host often lies in an attempt to conceal the illness); id. at 943 (some alters lie even when it causes problems which the host then must deal with); id. at 985 (describing how MPD patients often procure several sets of identification papers in attempts by the alters to establish their own identities); id. at 1003 (alters often take on characteristics of the host or present themselves as the host in order to not call attention to the disorder); id. at 1100 (MPD patients often attempt to cover up events in their lives caused by alters which they do not understand).

      The host personality generally does not know about the existence of the alters. See FRANK W. PUTNAM, DIAGNOSIS AND TREATMENT OF MULTIPLE PERSONALITY DISORDER 114 (1989). This leads, "more often," to the host actively denying evidence of the existence of alters, and may even cause the host to flee from treatment when confronted with evidence of alters. See id. at 107. What the MPD victim does know is that, like Denny-Shaffer, they blank out or lose time and are later accused of doing things they deny having done. When they are confronted with such situations as "`waking up' in the middle of conversations [with] people whom they do not know," they simply do not know what to think and attempt to cover up to avoid others discovering their "problems." See Saks, 25 U.C. DAVIS L.REV. at 397-98; VIII R. at 1018.

      [25] Respecting the time of the defendant's arrest in Albuquerque, Dr. McCarty said that "the difficulty here is that I am not sure I know who answered [whether the baby was the one taken from Las Cruces], although what we have is that Bridget reports that Gidget answered, and how Gidget came by that knowledge is the other issue." VIII R. at 1074; see also id. at 1018-22.

      Dr. McCarty also discussed the actions of the defendant when Genesis, defendant's daughter, was told to hide the baby at the time they were stopped in Albuquerque. Dr. McCarty said that "it doesn't sound like [Gidget] had figured it out all together ... what this baby was. That it would just be an analogy. It is like when she woke up when she was seven and there were crumbs [when she should have been fasting before communion]. It is like what you can't explain, you hide." Id. at 1018.

      [26] While transportation in interstate or foreign commerce of the kidnapped victim is an essential jurisdictional element of a § 1201(a) offense, it need not be established that the defendant in question participated in such transportation, but merely that the victim was at some point during the offense transported in interstate or foreign commerce. See United States v. Jackson, 978 F.2d 903, 910-11 (5th Cir.1992), cert. denied sub nom., Comacho v. United States, ___ U.S. ___, 113 S.Ct. 3055, 125 L.Ed.2d (1993).

      [27]See also United States v. Langston, 970 F.2d 692, 705 & n. 12 (10th Cir.) (proof must establish commission of offense by someone and aiding and abetting by defendant so charged), cert. denied sub nom., Francis v. United States, ___ U.S. ___, 113 S.Ct. 439, 121 L.Ed.2d 358 and cert. denied sub nom., McIlroy v. United States, ___ U.S. ___, 113 S.Ct. 479, 121 L.Ed.2d 384 and cert. denied sub nom., Ross v. United States, ___ U.S. ___, 113 S.Ct. 495, 121 L.Ed.2d 433 (1992), and cert. denied sub nom., McIlroy v. United States, ___ U.S. ___, 113 S.Ct. 1872, 123 L.Ed.2d 491 (1993).

      [28] It has been suggested that under relevant scientific and psychological criteria, alters should be considered distinct legal persons. See Saks, 25 U.C.DAVIS L.REV. at 403-18; DANIEL C. DENNETT, CONSCIOUSNESS EXPLAINED 419-20, 422, 424-25 (1991). Our criminal jurisprudence, however, does not warrant entering into such an analysis.

      [29] We note again that the trial judge recognized that the waiver of jury trial by the defendant after his rejection of the insanity defense applied only to the proceeding at that stage; he said that if there were a retrial, the defendant's right to a jury trial was not waived for that retrial. See IX R. at 1160-61.

      [30] Should such a verdict be returned, there is no danger that the defendant would go free to walk the streets. A federal insanity acquittee is remanded to the custody of the Attorney General, who may institute proceedings to commit that person to a state or federal facility for treatment until he or she is no longer dangerous. See 18 U.S.C. § 4243. The Supreme Court has held that it is constitutional to detain an insanity acquittee for as long as it is necessary to render the person no longer dangerous to the public, even if that should take longer than the maximum sentence for the crime which the defendant committed. See Jones v. United States, 463 U.S. 354, 370, 103 S.Ct. 3043, 3053, 77 L.Ed.2d 694 (1983). In fact, one study found that the average term of confinement for an insanity acquittee was just over 9½ years. See Perlin, 40 CASE W.RES.L.REV. at 651 & nn. 231-232. In this case, Denny-Shaffer's sentence was 5¼ years.

      28

      Once a defendant is acquitted on the basis of insanity and the Attorney General decides to confine him or her, the Attorney General may require state officials to accept federal conditions on the defendant's confinement in a state facility. See United States v. Husar, 859 F.2d 1494, 1497 (D.C.Cir.1988) (per curiam), reh'g denied, 866 F.2d 1533 (en banc), cert. denied, 492 U.S. 909, 109 S.Ct. 3223, 106 L.Ed.2d 572 (1989). Sections 4243 and 4247 require "continued federal control over federal insanity acquittees even after the acquittee is placed by the Attorney General in state custody." Id. Only a federal court may later determine that the acquittee can be safely released. See id. If Denny-Shaffer were acquitted on this basis, she would presumably be committed to the custody of the New Mexico Secretary of Health and Environment for treatment. See N.M.Stat.Ann. § 43-1-1(E) (Michie 1992).

    • 3.4 Parker v. State

      Did the trial judge err in finding that a defendant with DID had failed to prove her insanity?

      Notes: Defendant &#8211; Pam Parker &#8211; pursued a check &#8220;kiting&#8221; scheme at two local banks. She pled insanity because of her &#8220;split personality,&#8221; and claimed that her other personality, Pam Lease, was the one responsible. The court affirmed the trial judge's ruling that there was insufficient evidence that defendant was insane. This case is of interest primarily because one of the leading scholars of <span class="caps">DID</span> and criminal law &#8211; Elyn Saks, who you will be reading later in the module &#8211; finds in it receptivity to the idea that it may not have been Pam Parker who committed the crime at all, but rather Pam Lease who did it (See Saks (1992), p. 386). With this view presumably comes the idea that different alters are separate people, and should be treated as such by the court (a position that Saks herself endorses in Section II of her article). Read through the case, and see if you see in it the same thing Saks does.
      1
      597 S.W.2d 586 (1980)
      2
      Patricia Kozel PARKER, Appellant,
      v.
      STATE of Arkansas, Appellee.
      3
      No. CR 80-26.
      4

      Supreme Court of Arkansas.

      5
      April 21, 1980.
      6
      Rehearing Denied May 19, 1980.
      7

       

      8

      [587] Paul Johnson, Little Rock, for appellant.

      9

      James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

      10

      HICKMAN, Justice.

      11

      Patricia Kozel Parker was convicted of two counts of theft by deception in the Pulaski County Circuit Court and sentenced to serve ten years in the state penitentiary on each count with the sentences to run concurrently. She had entered a plea of not guilty by reason of mental disease or defect, and the case was tried to the trial judge sitting as a jury.

      12

      On appeal she alleges five errors, all of which we find to be without merit and, therefore, we affirm the judgment of the trial court.

      13

      The offense with which Patricia Parker was charged was that she pursued a check "kiting" scheme which resulted in a substantial loss to two Pulaski County banks. She makes no argument on appeal that she was not guilty as charged. Her argument is that she was not guilty because of a mental disease or defect. Both the State and Parker submitted expert testimony from psychologists and psychiatrists as to her mental condition. Parker's defense was that she had a dual personality. Her other personality was known as Pam Lease. It was Pam Lease, not Pat Parker, who conducted the check "kiting" scheme and Pat Parker had no control, knowledge or responsibility for what Pam Lease did. However, Pat Parker would serve the sentence, not Pam Lease. The trial judge found that the defense had failed to prove by a preponderance of the evidence that Patricia Parker was legally insane.

      14

      The first allegation of error is that the trial judge refused to permit the appellant Parker to introduce in evidence the results of a sodium amytal interview which was conducted at the University of Arkansas Medical Center in 1977. Dr. Charles Taylor, a psychiatrist who examined Mrs. Parker in 1977 at the Arkansas State Hospital, testified that he reached the conclusion Mrs. Parker was without psychosis. He was asked if he considered the record of the sodium amytal test which was in the State Hospital file when he made his diagnosis. [588] At first Dr. Taylor said he did not consider it and the trial judge ruled that if he had not, it would not be admissible. Then Taylor conceded that he and several others had with some difficulty made out the microfilm record of the sodium amytal analysis.

      15

      The argument to us on appeal is that the sodium amytal record should have been admitted into evidence. That argument is misapplied. Dr. Taylor did not have the record before him when he testified; he was not an employee of the Arkansas State Hospital at the time he testified. No serious effort was made to cross-examine Dr. Taylor, an expert witness, as to whether the sodium amytal record affected his judgment. Such an examination would have been permitted under Rule 703, Uniform Rules of Evidence. Also, the appellant would be entitled to admit such evidence to the trier of fact regardless of whether the expert witness relied upon it, Rule 803(4), Uniform Rules of Evidence, subject only to authentication of the record. Apparently, the microfilm record of the test was available to the defense, either through discovery or was in the courtroom at the time the case was tried. However, that microfilm record was never proffered in evidence. We have ruled many times that there must be a proffer of the evidence that is improperly excluded for us to find error. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Goodin v. Farmers Tractor & Equip. Co., 249 Ark. 30, 458 S.W.2d 419 (1970). See also, Ark.Stat.Ann. § 28-1001, Rule 103(a)(2) (Repl.1979).

      16

      The second allegation of error is that the State called two witnesses in rebuttal, a psychologist and a psychiatrist, and their names were not furnished by the State as required by Rules of Crim.Proc, Rule 17.1(a). That rule does require the prosecuting attorney to disclose to defense counsel the names and addresses of persons he intends to call as witnesses at a trial. However, this does not mean that the prosecuting attorney has to furnish the defense counsel the names of witnesses he calls in rebuttal. It was the burden of the defense in this case to prove legal insanity. Hill v. Lockhart, 516 F.2d 910 (8th Cir. 1975); Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915); Coates v. State, 50 Ark. 330, 7 S.W. 304 (1887). There was no obligation on the part of the prosecuting attorney to offer any evidence regarding the mental condition of Parker and the two witnesses that were called were indeed rebuttal witnesses to testimony offered by Parker. We held in Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975) that it was not error for the prosecuting attorney to fail to disclose the name of a rebuttal witness. While that case was decided before the effective date of the Rules of Criminal Procedure, it is sound law. There is no way that a prosecuting attorney can anticipate whom he will call in rebuttal until the defense presents its case. If a witness called in rebuttal is a genuine rebuttal witness, offering evidence to rebut that presented by the defense, not pertaining to evidence the State would be obligated to present in its case in chief, then the State is not required to furnish the name of such a witness.

      17

      Parker argues that the trial judge improperly held that a psychologist could testify as an expert. Whether a witness qualifies as an expert is a matter to be decided within the sound discretion of a trial court. In absence of abuse of that discretion, we will not reverse the decision of the trial court. Smith v. State, 258 Ark. 601, 528 S.W.2d 389, cert, denied 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976); Ray v. Fletcher, 2M Ark. 74, 423 S.W.2d 865 (1968); and Firemen's Insurance Co. v. Little, 189 Ark. 640, 74 S.W.2d 777 (1934). We find no abuse in this case regarding the trial court's decision.

      18

      Dr. George Jackson was called as a rebuttal witness and testified in the abstract regarding the use of sodium amytal as a method of discovering whether one has a multiple personality. Dr. Jackson, a psychiatrist with years of experience, essentially testified contrary to an expert witness called by the defense. The defense argues this was error since Dr. Jackson had not examined Parker. We cannot say the trial judge abused his discretion in permitting [589] this testimony. Certainly, not simply because it was presented in the abstract. His testimony was relevant to a fact in issue.

      19

      Finally, the appellant argues that the verdict is contrary to the evidence and law and will not support the verdict. We do not attempt to weigh the evidence or pass on the credibility of the witnesses where the testimony is in conflict. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). It was the trial judge's duty in this case, sitting as a jury, to determine if Parker was legally sane or insane. He decided she was sane and we find substantial evidence to support that finding.

      20

      Affirmed.

    • 3.5 State v. Rodrigues

      Has the state presented sufficient evidence of the defendant's sanity so as to require that the issue be presented to the jury?

      Notes: Appelant was indicted for three counts of sodomy and one of rape. A judge acquitted him on the basis of his <span class="caps">DID</span>, and the state appealed. Note the manner in which the differing views of the psychologists involved influence the outcome of the case. In the face of such disagreement, do you think that putting the issue to the jury is an appropriate response? More importantly, what standard does the opinion set for how to approach defendants with <span class="caps">DID</span>, and how does it differ from both the standards set in Grimsley and in Denny-Schaffer?
      1
      679 P.2d 615 (1984)
      2
      STATE of Hawaii, Plaintiff-Appellant,
      v.
      Rodrigo RODRIGUES, Defendant-Appellee.
      3
      No. 8865.
      4

      Supreme Court of Hawaii.

      5
      March 8, 1984.
      6
      Reconsideration Denied March 23, 1984.
      7

       

      8

      [616] Arthur E. Ross, Deputy Pros. Atty., Honolulu (Ernest J. Freitas, Jr., Deputy [617] Pros. Atty., Honolulu, on the reply brief), for plaintiff-appellant.

      9

      John S. Edmunds, Honolulu (Ronald J. Verga, with him on the brief; John S. Edmunds, A Law Corporation, Honolulu, of counsel), for defendant-appellee.

      10

      Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

      11

      HAYASHI, Justice.

      12

      This is an appeal by the State of Hawaii from a judgment of acquittal granted by Judge Huddy under Hawaii Revised Statutes (HRS) § 704-408. Appellant claims, and we agree, that there was sufficient evidence presented so as to require the judge to present the issue of sanity to the jury.[1] We also decide that a defense of multiple personality syndrome (MPS) does not per se require a finding of acquittal.

      13

      Defendant was indicted on November 20, 1979, on three counts of sodomy in the first degree (HRS § 707-733(1)(a)(i)) and one count of rape in the first degree (HRS § 707-730(1)(a)(i)). His victims were all young girls, whom he would lure into secluded areas. He filed a notice of intention to rely on the defense of mental disease, disorder or defect under HRS § 704-404(1) on March 12, 1980. Defendant had previously been examined by Vadim P. Kondratief, M.D. in California, who referred defendant to Bernauer W. Newton, Ph.D., also in California, both of whom testified for the defense.

      14

      On March 17, 1980, the court pursuant to HRS § 704-404(2), ordered further mental examination of the defendant to be performed by three court appointed psychiatrists; Drs. Creighton U. Mattoon, Emily Khaw and Gene Altman.

      15

      On October 16, 1980, the defendant filed a motion for judgment of acquittal. Hearings on that motion and a motion for closure of the hearings were held intermittently beginning December 1, 1980. On December 2, the court consolidated the hearing on the motion for acquittal with a motion for determination of fitness to proceed.

      16

      On January 9, 1981, the judge found defendant unable to assist in his defense, and pursuant to HRS § 704-406 suspended the proceedings, deferring the matter of acquittal.

      17

      For the next year and a half, State psychiatrist Dr. Morgan treated defendant at Kaneohe, Hawaii State Hospital, and on June 25, 1982, the defendant was brought back into court. The defendant was presented as fit to proceed, so the court renewed hearings on the motion for the judgment of acquittal. On August 27, 1982, the judge granted the motion, and this appeal followed.

      18
      I.
      19

       

      20

      In every criminal case there exists a presumption that a defendant is sane. This presumption can be overcome by evidence to the contrary, and then the State has the burden of proving a defendant's sanity beyond a reasonable doubt. State v. Valentine, 1 Haw. App. 1, 612 P.2d 117 (1980).

      21

      The defendant in the case at hand introduced testimony from five psychiatrists to rebut the presumption of sanity. There was no contention that this was not sufficient to rebut the presumption. Accordingly, the burden of proof shifted to the State to prove, beyond a reasonable doubt, that appellant was sane at the time of the offenses.

      22

      The testimony introduced by the defense addressed the fact that under HRS § 704-408, a defendant will be relieved of criminal responsibility if at the time of the alleged conduct the defendant suffered from a mental disease, disorder, or defect which substantially impaired his capacity to appreciate the wrongfulness of his conduct or [618] to conform his conduct to the requirements of the law. In support of his motion for acquittal, the defendant raised the defense that at the time of the offense he was suffering from multiple personality syndrome, which should exclude his responsibility for his actions.

      23

      Multiple personality syndrome (MPS) is a disorder where there are within one individual, two or more distinct personalities, each of which is dominant at a particular time. Each individual personality is complex and integrated with its own behavior pattern and the personality that is dominant at any particular time determines the individual's behavior. Often there is amnesia on the part of one personality for the existence of the other.[2]

      24

      The defense of MPS was raised in connection with HRS § 704-408 because one personality often cannot control the actions of another personality. This disorder is extremely rare, and has recently come to the attention of several courts. The trend in these courts is toward examining the sanity of each personality presented in an individual, or at least the personality which allegedly committed the offense.

      25
      The law adjudges criminal liability of the person according to the person's state of mind at the time of the act; we will not begin to parcel criminal accountability out among the various inhabitants of the mind.
      26

       

      27

      Kirkland v. State, 166 Ga. App. 478, 304 S.E.2d 561 at 564 (1983). Recent cases dealing with the multiple personality defense have held that it is immaterial whether the defendant was in one state of consciousness or another, so long as in the personality then controlling the behavior, the defendant was conscious and his or her actions were a product of his or her own volition. State v. Darnall, 47 Or. App. 161, 614 P.2d 120 (1980); State v. Grimsley, 3 Ohio App.3d 265, 444 N.E.2d 1071 (1982); and Kirkland, supra.

      28

      The cases dealing with MPS can be examined in a similar fashion as other defenses of insanity. If a lunatic has lucid intervals of understanding he shall answer for what he does in those intervals as if he had no deficiency. The law governs criminal accountability where at the time of the wrongful act the person had the mental capacity to distinguish between right and wrong or to conform his conduct to the requirements of the law. Since each personality may or may not be criminally responsible for its acts, each one must be examined under the American Law Institute (ALI)-Model Penal Code (MPC) competency test. See State v. Nuetzel, 61 Haw. 531, 606 P.2d 920 (1980); and Kirkland, supra.

      29
      II.
      30

       

      31

      Before we examine the testimony relating to the competency of the alleged personalities of the defendant elicited from the psychiatrists, we must address defendant's claim that the court erred in not striking the testimony of one of the psychiatrists, Dr. Khaw.

      32

      Generally, in determining whether the conclusions or opinions of an expert witness are admissible, the court must exercise a large measure of discretion with which an appellate court is reluctant to interfere unless that discretion has been manifestly abused to the prejudice of the complaining party. State v. Torres, 60 Haw. 271, 589 P.2d 83 (1978); 31 Am.Jur.2d Expert and Opinion Evidence § 3. The determination of qualification is in the first instance for the court, and is discretionary. But qualifications also go to weight, and Hawaii Rules of Evidence (HRE) Rule 702.1, expressly provides for cross-examination on this subject. See, State v. Okura, 56 Haw. 455, 541 P.2d 9 (1975).

      33

      The standard of review therefore, is whether the court abused its discretion in failing to strike the testimony. Defendant [619] argues, and we agree, that the qualifications and methodology of the doctor had been seriously called into question, and we also agree that the trial court gave little, if any weight to Dr. Khaw's testimony.

      34
      Court: I'll find her qualified as a psychiatrist, and in that capacity, with expertise to render diagnosis and treatment of people who may or may not be affected with a mendal [sic] disorder, which includes multiple personality. But it's always for the trier of fact to weigh and evaluate the opinion of any expert, and the trier of fact may accept or reject it. So the question is again to the weight and effect for trier of fact to give to the testimony.
      35

       

      36

      Tr. 1/6/81 at 49. But we disagree with defendant's contention that:

      37
      [h]ad defendant's motion (to strike Dr. Khaw's testimony) been granted, the court below would have been entirely without any evidence or inferences required to be drawn therefrom pursuant to State v. Freitas, supra, and State v. Summers, supra, other than the exensive [sic] evidence of insanity and lack of penal responsibility adduced by defendant. On that state of the record, the judgment of acquittal below would have been compelled.
      38

       

      39

      Defendant's Answering Brief at 30. Defendant has failed to show a clear abuse of discretion or any resulting prejudice from the introduction of the testimony, because as will be noted below, the question of acquittal was one for the jury or trier of fact, who could have given Dr. Khaw's testimony the weight it deserved. There was also other evidence elicited from the other psychiatrists which could support an inference that defendant was sane.

      40
      III.
      41

       

      42

      An examination of the testimony of the psychiatrists reveals that few of the experts agreed as to any of their opinions.

      43

      Dr. Kondratief, the first to examine the defendant, had not treated nor diagnosed anyone who had MPS, and had only seen two or three cases of MPS. Before he referred the defendant to Dr. Newton, he had formed a diagnosis that the defendant was suffering from fugue, temporary amnesia or MPS. After discussing the matter with Dr. Newton, he formed a final diagnosis of MPS. His opinion was that defendant as a whole lacked substantial capacity to appreciate the wrongfulness of his conduct and also lacked substantial capacity to control his conduct to the requirements of the law. He testified that personality A had no control or knowledge of personality B. He also testified that B was not capable of understanding the proceedings against him, but never expressed his opinions as to whether A or B could control their actions or appreciate the wrongfulness of their conduct as separate personalities.

      44

      Dr. Newton treated the defendant through hypnosis, and prepared tapes of his sessions which allegedly showed defendant's several personalities. He had diagnosed seventeen cases of MPS and had treated eleven patients for MPS, and stated that the defendant as a whole was capable of appreciating the wrongfulness of his conduct, but was not capable of conforming his conduct to the requirements of the law. He stated that personality A understood the charges against him and could conform his behavior to the requirements of the law. He testified that defendant was in the B state when he committed the acts, and that B could appreciate the wrongfulness of his acts but could not conform his behavior to the requirements of the law.

      45

      Dr. Altman, one of the court appointed psychiatrists, had never treated or diagnosed any cases of MPS. After viewing a summary tape prepared by Dr. Newton, and discussing the case with Dr. Newton, he came to his diagnosis that defendant suffered from MPS. He stated that personality B had committed the offenses, that B knew that what he was doing was wrong, and that B had some degree of volitional control over his actions.

      46

      Dr. Khaw, another court appointed psychiatrist, had never treated nor diagnosed nor even seen a case of MPS. After viewing [620] the summary tape prepared by Dr. Newton, she still claimed to never have seen a case of MPS. Her diagnosis was that defendant's mental condition was sexual perversion, pedophilia. She stated that defendant knew what was wrong and could conform his behavior to the requirements of the law, although it was difficult for him to do so.

      47

      Dr. Mattoon, the last of the court appointed psychiatrists, testified that he had never diagnosed, treated, nor seen anyone with MPS. He diagnosed defendant as having MPS after talking with Dr. Newton for four hours in the court halls before testifying. He stated that both A and B could understand that the acts were wrong, but that it did not matter to B. He testified that A could control himself to the requirements of the law, as could B, and that it was B who performed the acts.

      48

      Finally, Dr. Morgan, who had treated six cases of MPS, stated that he wasn't sure that the defendant had MPS until after he began treating him. (Dr. Morgan had testified earlier that defendant had MPS, but after treating the defendant he testified that during his earlier testimony he actually was unsure of whether defendant had MPS.) After treating him for approximately six hundred hours, Dr. Morgan came to the conclusion that defendant had in fact three personalities: personality A, named Rod, was defendant's normal waking state; personality B, named David, emerged at age sixteen and was the mediating personality between Rod and the final personality; the last personality's name was Lucifer, who emerged at age three, and who had taken over at the times of the offenses. Dr. Morgan testified that the defendant as a whole lacked the capacity to appreciate the wrongfulness of his conduct and to conform his behavior to the requirements of the law. He testified that A and B knew that the acts were wrong but that C did not care whether they were right or wrong and that A and B had the capacity to conform their conduct to the requirements of the law but C did not care about his conduct or the consequences.

      49

      A summary of the testimony of all the psychiatrists reveals that: defendant had anywhere from one to three personalities; A could appreciate the wrongfulness of his acts and conform his behavior to the requirement of the law, but could not control B; B could understand the wrongfulness of his conduct but could or could not (depending on whose testimony was more persuasive) control his behavior to the requirements of the law; and C did not care whether what he did was right or wrong or about the consequences of his conduct. Dr. Khaw, theorizing there was one personality, testified A committed the acts; four doctors theorizing there were two personalities, testified B committed the acts; and Dr. Morgan testified that C executed the crimes.

      50
      IV.
      51

       

      52

      In light of the above testimony, we find merit to the appellant's claim that the judge erred in granting the acquittal without giving the matter to the jury. The standard of review on appeal is that it is a jury question unless a reasonably minded jury viewing the facts and inferences in a light most favorable to the prosecution would necessarily possess a reasonable doubt as to defendant's sanity. State v. Nuetzel, 61 Haw. 531, 606 P.2d 920 (1980). State v. Freitas, 62 Haw. 17, 608 P.2d 408 (1980), held that where the evidence is such that a jury might fairly have or not have a reasonable doubt as to defendant's sanity, the issue becomes a question of fact for the jury, and a motion for judgment of acquittal will be denied. The testimony in this matter is disjointed and:

      53
      [w]hat psychiatrists may consider a mental disease or defect for medical purposes where clinical treatment is the main concern may not be the same as mental disease or defect for the jury's purpose where an accused's criminal responsibility is at issue.
      54

       

      55

      State v. Nuetzel, 61 Haw. at 543, P.2d at 928. The expert may testify as to mental states, but they are not competent to render an opinion as to the impact of the [621] mental state on legal accountability. This is a question for the jury where, as here, there are diverse opinions as to which personality performed the acts and whether that personality was sane or not.

      56

      The purpose of expert testimony is to assist the trier of fact on matters not of common knowledge, where the witnesses have knowledge, training and experience enabling them to form a better opinion on a given state of facts than that formed by those not so well equipped. 31 Am.Jur.2d Expert Opinion and Testimony § 16. The jury is entitled to know the facts on which an expert bases his opinion in order to make its own assessment of the expert's opinion and the reliability of the diagnostic and analytical process employed. State v. Summers, 62 Haw. 325, 614 P.2d 925 (1980).

      57
      It is well settled that we are not bound by expert testimony as to the sanity or mental state of an accused, even where it is undisputed, but the fact finder may reject it out of hand.
      58

       

      59

      Kirkland, supra, at 565, see also, Bachran v. Morishige, 52 Haw. 61, 469 P.2d 808 (1970). Since the jury may reject an expert's testimony, it would appear axiomatic that they could reject part of the testimony of an expert. Thus they could accept one psychiatrist's testimony as to whether a defendant could appreciate the wrongfulness of his actions, and accept another psychiatrist's testimony regarding the capability of the defendant to conform his conduct to the requirements of the law. They could therefore arrive at a conclusion conjectured by no one expert alone.

      60
      V.
      61

       

      62

      It also appears in this case, that the trial judge improperly weighed the testimony of the doctors, and acted as a trier of fact rather than a judge on the motion for acquittal.

      63
      The Court: The only question that the Court had in that regard was Dr. Khaw's testimony. But in review of her testimony, giving full weight and effect to her testimony, the Court placed some emphasis on her testimony to the effect that she believed that it was very, very hard for the defendant to control his conduct or to conform his conduct to the requirements of law. She used phrases such as "very, very hard." "I think he can." "Difficult." And, when the Court weighs that testimony along with the testimony of Dr. Newton and the other doctors who have testified, the Court has reached the conclusion that necessarily a judgment of acquittal is required in this case.
      64

       

      65

      Tr. 8/27/82 at 60-61.

      66
      The Court: The impact, the effect of the weight of the testimony is for the trier of facts.
      67
      * * * * * *
      68
      The Court: ... I can weigh it.
      69

       

      70

      Tr. 12/16/80 at 54. The weighing of testimony is reserved for the jury or trier of fact unless no reasonable juror could disagree as to an outcome. State v. Summers, supra. The sanity issue before this court and the role of the jury was discussed in Nuetzel.

      71
      The jury, as the trier of facts, remains the sole sentinel in the protection of both the rights of the accused and the welfare of society, enabled finally to consider all relevant facts pertaining to the defendant's state of mind at the time the act was committed, and being thereby better qualified to render its ultimate moral judgment under the law.
      72

       

      73

      State v. Nuetzel, 61 Haw. at 543, P.2d at 928. The judge acted improperly in granting the motion for acquittal in this case.

      74

      We hold therefore, that the question of defendant's sanity at the time of the offense and the corresponding question of which personality was present at the time of the offense were questions properly for the jury or the trier of fact.

      75
      VI.
      76

       

      77

      While defense counsel at oral argument conceded that this court probably had jurisdiction under HRS § 641-13(2) to hear this case because no jury had been impanelled, [622] we feel it necessary to discuss the issue of double jeopardy.

      78

      Under HRS § 641-13(2), an appeal may be taken by and on behalf of the State "from an order or judgment, sustaining a special plea in bar, or dismissing a criminal case where the defendant has not been put in jeopardy." Double jeopardy does not attach unless there is a risk of a determination of guilt. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1974). In State v. Hagerud, 174 Mont. 361, 570 P.2d 1131 (1977), defendant was acquitted by reason of mental defect excluding responsibility in a pretrial evidentiary hearing to determine whether defendant at the time of the offense charged was so clearly unable to appreciate the criminality of his conduct or conform his conduct to the requirements of the law that trial would be useless. On appeal, the court held that the defendant was never once put in jeopardy as he was never subjected to the possibility of conviction of the crime charged and, thus, to permit the State to obtain review of the district court's decision acquitting defendant did not put defendant in double jeopardy in violation of his constitutional rights.

      79

      Hawaii case law has recognized two inquiries which must be made to determine whether double jeopardy has attached. The first is to determine when jeopardy attaches, and the second is to determine if, on the facts of the case, a retrial is barred by the double jeopardy clause. State v. Miyazaki, 64 Haw. 611, 645 P.2d 1340 (1982). Here no jeopardy attached. This was a pretrial motion to determine whether defendant at the time of the offense charged was unable to appreciate the wrongfulness of his conduct or to control his conduct to the requirements of the law. There was no possibility of a conviction, and thus a trial is not barred by the double jeopardy clause of the Fifth Amendment.

      80

      Accordingly, the decision of the lower court is vacated and the case remanded for further proceedings consistent with this opinion.

      81

      NAKAMURA, Justice, dissenting with whom WAKATSUKI, Justice, joins.

      82

      The court, on an appeal brought by the State, vacates a judgment of acquittal entered by the circuit court and remands the case for a redetermination of criminal responsibility. In my opinion the decision is unprecedented, unauthorized, and unconstitutional.

      83
      I.
      84

       

      85

      After his indictment by the Grand Jury on three counts of sodomy and one count of rape, the defendant gave notice in accord with Hawaii Revised Statutes (HRS) § 704-404(1)[1] of an "intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility" and moved for a mental examination. Thereupon, the proceedings against him were suspended, and the circuit court appointed two psychiatrists and a psychologist to examine the defendant. Although the three examiners initially found the defendant's capacity to understand the proceedings and assist in his own defense as well as his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law were unimpaired, two of them subsequently submitted amended reports indicating the presence of an impairing mental disorder.

      86

      Relying on these reports, the defendant asserted he could not be held responsible for the criminal acts charged and moved the court for a judgment of acquittal pursuant [623] to HRS § 704-408.[2] At the hearing on the motion, testimony supporting the claim of insanity was adduced from the members of the court-appointed panel of examiners who earlier found substantial impairment in defendant's capacity to appreciate the criminal nature of his conduct and from several other psychiatrists and psychologists. On the first day of the hearing on the motion to acquit, however, defense counsel also requested a determination of defendant's "capacity to understand the proceedings against him or to assist in his own defense."[3] The hearing on this motion was consolidated with that already in progress, with the understanding that the court's ruling on defendant's fitness to proceed would be rendered prior to its consideration of the issues related to criminal responsibility.

      87

      After hearing the parties out on the question of defendant's fitness for trial, the circuit court decided he was then incompetent to proceed; it further found he posed a substantial danger to others in his mental state. Consequently, proceedings were suspended, and defendant was committed to the custody of the State Director of Health "for detention, care, and treatment for so long as such unfitness ... [should] endure."[4]

      88

      Subsequently, when the circuit court was convinced that defendant's competency to stand trial had been restored, the hearing on the motion for acquittal was resumed.[5] After listening to additional testimony on the issue of criminal responsibility and being satisfied that the defendant's mental impairment when the offenses were committed "was sufficient to exclude responsibility," the circuit court entered a judgment of acquittal pursuant to HRS § 704-408.[6] See note 2 supra. The State's appeal to this court followed.

      89

      [624]

      90
      II.
      91

       

      92

      "Save in certain instances ..., the State has no appeal in a criminal case unless the defendants are convicted," Peters v. Jamieson, 48 Haw. 247, 256, 397 P.2d 575, 582 (1964); and save in a certain instance not applicable here,[7] "[r]ulings prejudicial to the State and leading to an acquittal are never reviewed." Id. Thus, despite the defendant's concession "that this court probably had jurisdiction under HRS § 641-13(2) to hear this case," the pertinent inquiry at the very outset must be whether an appeal lies.[8] I would say it does not.

      93

      The statute authorizing appeals by the State in criminal cases confers a right of appeal "in a limited number of enumerated instances," but "does not include in its enumeration a judgment of acquittal." State v. Shintaku, 64 Haw. 307, 310, 640 P.2d 289, 292 (1982). Claiming the appeal is actually from an order sustaining a special plea in bar, the State purports to seek review on the strength of HRS § 641-13(2) which sanctions an appeal "[f]rom an order or judgment, sustaining a special plea in bar, or dismissing the case where the defendant has not been put in jeopardy." But "[t]he availability of appellate review sought by the State in a criminal case can be based only on clear statutory authority," State v. Johnson, 50 Haw. 525, 526, 445 P.2d 36, 37 (1968), and "[s]tatutes granting the State the right of appeal in criminal cases must be strictly construed. They are not to be enlarged by construction and cannot be extended beyond their plain terms." Territory v. Balarosa, 34 Haw. 662, 665-66 (1938); see also State v. Shintaku, 64 Haw. at 310-11, 640 P.2d at 292.

      94

      HRS § 641-13(2) sanctions an appeal from an order sustaining "a special plea in bar." At common law, such a plea "was ordinarily used to raise three defenses — autrefois acquit, autrefois convict, and pardon." United States v. Sisson, 399 U.S. 267, 300 n. 53, 90 S.Ct. 2117, 2135, n. 53, 26 L.Ed.2d 608 (1970) (emphasis in original). We have said it "ordinarily presents some matter extrinsic of the record which completely bars the proceeding, such ... as a plea of insanity,[9] a plea of pardon, or a plea of former acquittal, conviction or jeopardy... ." State v. Johnson, 50 Haw. at 526, 445 P.2d at 37, quoting Territory v. Anderson, 25 Haw. 55, 58 (1919). But as the Supreme Court points out, "there is no warrant for its use to single out for determination in advance of trial matters of defense either on questions of law or fact." United States v. Murdock, 284 U.S. 141, 151, 52 S.Ct. 63, 65, 76 L.Ed. 210 (1931). Cf. United States v. Sisson, 399 U.S. at 301, 90 S.Ct. at 2135 ("a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case.").

      95

      What was presented in support of the motion to acquit was hardly "some matter extrinsic of the record." What the court heard and evaluated was evidence of defendant's [625] mental impairment that covered "matters of defense ... on questions of law or fact." "Compelled as we are to strictly construe HRS § 641-13," State v. Shintaku, 64 Haw. at 310-11, 640 P.2d at 292, there is no warrant for reading "a special plea in bar" expansively to cover a motion for acquittal premised on a mental disorder sufficient to exclude criminal responsibility. Though the majority finds no cause to address the obvious discrepancy between a plea in bar and a motion to acquit, the significant difference between the two divests this court of jurisdiction to consider the State's appeal.

      96
      III.
      97

       

      98

      Proceeding with the appeal, nonetheless, the majority finds the defendant has yet to be put in jeopardy, and concludes a reversal of the circuit court and a remand of the case for a redetermination of criminal responsibility would not run afoul of constitutional commands. The record, however, cannot sustain the finding, and a rerun of the hearing on mental impairment would transgress the cardinal rules of double jeopardy jurisprudence.

      99
      A.
      100

       

      101

      "Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution." Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975). The majority accepts the State's thesis that the defendant has not been in jeopardy even though he moved for acquittal on a ground that he was deranged when the criminal acts were committed and evidence in support of and in opposition to the motion was adduced. It assumes the "pre-trial motion" did not expose the defendant to a risk of conviction since the circuit court was not empowered to enter a judgment of conviction pursuant to HRS § 704-408.[10] Yet in fact, the defendant was in jeopardy when he sought acquittal and brought forth evidence on an essential element of the crimes charged in the indictment.

      102

      "Implicit in a motion for judgment of acquittal by reason of mental irresponsibility is the admission that the defendant committed the offense charged." State v. Lee, 61 Haw. 313, 314, 602 P.2d 944, 946 (1979). Here, what may have been implicit was rendered explicit by evidence submitted in support of the plea for acquittal. The testimony and the opinions of the psychiatrists and psychologists who examined the defendant were grounded in part on accounts furnished by him of the events leading to the prosecution. The videotaped interviews, tapes of which were made available to the State, undeniably implicated the defendant in the offenses charged.

      103

      His involvement is undeniable because the parties agreed, with court approval before the defendant submitted a plea for acquittal, that:

      104
      in the event the case proceeds to trial on the merits and the Defendant takes the stand and directly contradicts, in the defense case in chief, statements made by him during any of the audio cassette or video cassette interviews, the prosecution may introduce said portions of the audio-video cassette interviews for the purpose of seeking to impeach the Defendant's testimony ... [and] if the Defendant takes the stand and if relevant, the Prosecution may cross examine the Defendant relative to any statements made by him during any audio or video interviews and that if relevant the Prosecution may introduce those portions of the audio or [626] video interviews in rebuttal for the purpose of contradicting or impeaching him.
      105

       

      106

      Thus, the die was cast when the claim of irresponsibility was advanced. The defendant committed himself thereby to pursue the defense of insanity to judgment, for he could not hope thereafter to controvert testimony that he had engaged in the proscribed conduct.[11] Realistically, he ran a substantial risk of conviction by moving for an early determination of part of the general issue in the case and proceeding to a hearing.

      107
      B.
      108

       

      109

      Built as it is on a misreading of "a special plea in bar" and an infirm factual foundation, the court's conclusion that the defendant would not be twice put in jeopardy by a second adjudication of an issue once adjudicated in his favor cannot be reconciled with prescribed constitutional standards in the area of concern.

      110

      Our concern here is with a judgment of acquittal and further jeopardy. "Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that `[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy and thereby violating the Constitution.' United States v. Ball, 163 U.S. 662, 671 [16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896)." United States v. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354. "[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that `even though innocent he may be found guilty.'" United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (quoting Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957)).

      111

      But it is not only a verdict of acquittal returned by a jury that triggers the protection against the potential risk associated with further prosecution. A directed verdict of acquittal suffices in this regard, Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962), and so does "a judge's acquittal after the jury disagrees and is discharged." United States v. Martin Linen Supply Co., 430 U.S. at 574, 97 S.Ct. at 1356. And the governing principle formulated by the Supreme Court is: "A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal." United States v. Scott, 437 U.S. at 91, 98 S.Ct. at 2194 (footnote omitted).[12]

      112

      Although a direct acquittal on a motion submitted before actual trial has not been discussed in the relevant case law, the Court has made it clear that the substance of the judge's action determines whether the acquittal would terminate the prosecution. The determinative question, the Court said, is "whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354. Viewing what transpired below in the light of the Supreme Court's teachings, I would declare there was an acquittal that rules out further prosecution of the defendant.

      113
      C.
      114

       

      115

      The defendant was accused of crimes for which a culpable state of mind is a necessary [627] element. He sought a ruling from the circuit court on whether insanity prevented him from forming the required intent. The applicable statute, HRS § 704-408 as it read before its amendment in 1980, vested the court with full authority to directly acquit him if "satisfied" after a hearing that his mental impairment was sufficient to exclude responsibility,[13] and the court did so. In effect, it weighed the evidence adduced by the parties and arrived at a decision that the State had failed to submit enough evidence "to rebut ... [the] defendant's essentially factual defense of insanity." United States v. Scott, 437 U.S. at 97, 98 S.Ct. at 2197.

      116

      The circuit court, notwithstanding the majority's conclusion that the court was without power to do so, had clear authority to enter the judgment of acquittal. See note 13 supra. That the acquittal may have resulted from an erroneous application of controlling legal principles as the majority holds, may affect "the accuracy of that determination, but ... does not alter its essential character." United States v. Scott, 437 U.S. at 98, 98 S.Ct. at 2197. It still "represents a resolution [in the defendant's favor], correct or not, of some ... of the factual elements of the offense[s] charged." United States v. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354.

      117

      "The notion that the prosecution, having failed to make a sufficient case against ... [the] accused, should be given a second opportunity to do better seems fundamentally inconsistent with the Double Jeopardy Clause." 2 C. Wright, Federal Practice and Procedure: Criminal 2d § 470, at 677-78 (1982) (footnote omitted). I would dismiss the appeal for want of jurisdiction.

      118

      [1] HRS § 704-408 was amended by the legislature in 1980 to require the court to submit the issue of criminal responsibility to the jury or trier of fact at the trial of the charges against the defendant. The amendment does not apply to this case however, since it does not apply to any crime which occurred prior to June 7, 1980.

      119

      [2] French and Shechmeister, The Multiple Personality Syndrome and Criminal Defense, 11 Am.Acad.Psych. & L.Bull. 1 at 17-25 (1983).

      120

      [1] HRS § 704-404(1) reads:

      121

      Whenever the defendant has filed a notice of intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility, or there is reason to doubt his fitness to proceed, or reason to believe that the physical or mental disease, disorder, or defect of the defendant will or has become an issue in the case, the court may immediately suspend all further proceedings in the prosecution. If a trial jury has been empanelled, it shall be discharged or retained at the discretion of the court. The dismissal of the trial jury shall not be a bar to further prosecution.

      122

      [2] Prior to its amendment in 1980, HRS § 704-408 read as follows:

      123

      Determination of irresponsibility. If the report of the examiners filed pursuant to section 704-404 states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested, is satisfied that such impairment was sufficient to exclude responsibility, the court, on motion of the defendant, shall enter judgment of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.

      124

      The foregoing provisions are applicable to this case since the offenses alleged in the indictment occurred in 1978 and 1979 and the amendatory act expressly provided that the amendment would not apply to any offenses occurring before its approval. See S.L.H. 1980, c. 222, § 3.

      125

      [3] HRS § 704-403 provides that:

      126

      [n]o person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.

      127

      [4] The commitment was pursuant to HRS § 704-406(1), which in relevant part provides:

      128

      If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, except as provided in section 704-407, and the court shall commit him to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment for so long as such unfitness shall endure.

      129

      [5] HRS § 704-406(2) in relevant part provides:

      130

      When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed.

      131

      [6] The defendant, however, was not released from custody. He has remained in the custody of the State Director of Health under the court's order entered pursuant to HRS § 704-411(1), which in pertinent part reads:

      132

      When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court shall, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical evidence given at the trial or at a separate hearing, make an order as follows:

      133

      (a) The court shall order him to be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant presents a risk of danger to himself or the person or property of others and that he is not a proper subject for conditional release... .

      134

      [7] HRS § 641-13 was amended in 1982 to authorize an appeal by the State from "a judgment of acquittal following a jury verdict of guilty." See S.L.H. 1982, c. 81, § 1.

      135

      [8] "The objection for want of jurisdiction, if it exists, may be raised by answer or at any subsequent stage of the proceedings and may be raised for the first time on appeal. It may, as a matter of fact, be raised by the court of its own motion." Territory v. Correa, 24 Haw. 165, 166-67 (1917). For it is fundamental that "parties cannot by waiver confer jurisdiction over the subject matter upon the court." Tong On v. Tai Kee, 11 Haw. 424, 427 (1898).

      136

      [9] A plea of insanity that would present "some matters extrinsic of the record" and would be a plea in bar is a motion to determine fitness to proceed. A hearing thereon would not be to determine responsibility for the charged offense; it would only cover the defendant's fitness to stand trial. A determination of unfitness in this regard would constitute a bar to proceedings, since "[i]t has long been accepted that 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 defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975); see also State v. Raitz, 63 Haw. 64, 67, 621 P.2d 352, 356 (1980).

      137

      [10] True, HRS § 704-408 as it read before its amendment did not empower the court to render a judgment of conviction. Yet this is not dispositive.

      138

      The statute did not authorize the entry of a judgment of conviction because such authority would have infringed the right of criminal defendants to be tried by juries composed of their peers. A judgment of acquittal, of course, would not be deemed an infringement of this right. For while a "trial judge is ... barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused," this "limitation on the role of a trial judge ... has never inhibited his ruling in favor of a criminal defendant." United States v. Martin Linen Supply Co., 430 U.S. 564, 573, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977).

      139

      [11] This was confirmed during oral argument before this court. In response to a query on a related point, counsel for defendant unequivocally stated he would resubmit the issue of criminal responsibility to the trial court for decision on the evidence already adduced if the case is remanded.

      140

      [12] No double jeopardy problems would be implicated in a government appeal from "a judgment of acquittal following a jury verdict of guilty," which is now allowed. See HRS § 641-13(a). For a reversal there would result in a reinstatement of the verdict, not a retrial. See United States v. Wilson, 420 U.S. 332, 344-45, 95 S.Ct. 1013, 1022-23, 43 L.Ed.2d 232 (1975).

      141

      [13] The applicable statute on its face empowered the court to directly acquit the defendant if "satisfied" his mental impairment was "sufficient to exclude responsibility." See note 2 supra. This more than implies the court was to weigh the evidence and rule on a factual element of the offenses. Any doubts on this score are laid to rest by the Penal Code Commentary on HRS § 704-408; it read as follows:

      142

      This section provides for the direct qualified acquittal of the defendant when the report filed pursuant to § 704-404 satisfies the court that at the time of the conduct alleged the defendant suffered from a physical or mental disease, disorder, or defect which precluded responsibility. A hearing shall be had on the issue of the defendant's responsibility if it is requested by either party or the court. If the court is satisfied on the basis of the report or the hearing or both that the defendant should not be held responsible for the conduct alleged, it shall, upon motion by the defendant, acquit the defendant. Thus, a trial in such cases will be avoided. If the defendant maintains that he did not engage in the conduct alleged, or has a defense in addition to that excluding responsibility, he can, of course, withhold the motion and the case will proceed to trial.

      143

      The section changes the prior law in that it vests the power of direct acquittal in the court and does not make it dependent on prosecutorial discretion. (Emphasis added).

      144

      That HRS § 704-408 prior to its amendment was to be interpreted in the foregoing manner was reaffirmed when the section was amended. See Sen.Stand.Comm.Rep. No. 689-80, in 1980 Senate Journal, at 1335 (In commenting on the proposed amendment to HRS § 704-408, the Senate Judiciary Committee said: "Presently the law allows an insanity defense to be heard, and ruled on in the first instance, by a judge at a pre-trial hearing. The judge can enter a judgment of acquittal on the grounds of `physical or mental disease, disorder, or defect excluding responsibility' or allow the defense to go to a jury.").

    • 3.6 State v. Greene

      Is dissociative identity disorder (DID) admissible as evidence of insanity or diminished capacity?

      Notes: Defendant was charged with kidnapping and sexually assaulting his therapist, who had been treating him for <span class="caps">DID</span>. He pled not guilty by reason of insanity. The Supreme Court of Washington had already addressed a virtually identical issue in State v. Wheaton, 121 Wash.2d 347, 850 P.2d 507 (1993), but it agreed to hear this new case en banc anyways. This case is notable for the depth of its analysis of the issues involved. It also touches directly on broader questions about the way in which courts should relate to ignorance and uncertainty in the medical community. How does the court's ruling differ from the rulings in Grimsley and in U.S. v Denny-Schaffer? Do you agree that it is not possible to reliably connect the symptoms of <span class="caps">DID</span> with the sanity or insanity of the defendant? If so, do you think that the court's response to such impossibility is appropriate?
      1
      984 P.2d 1024 (1999)
      2
      139 Wash.2d 64
      3
      STATE of Washington, Petitioner,
      v.
      William B. GREENE, Respondent.
      4
      No. 67250-4.
      5

      Supreme Court of Washington, En Banc.

      6
      Argued May 27, 1999.
      7
      Decided September 30, 1999.
      8

       

      9

      [1025] Sheryl G. McCloud, Seattle, Elyn Saks, Los Angeles, CA, Amicus Curiae on Behalf of Nine Concerned Law Professors.

      10

      Honorable Jim Krider, Snohomish County Prosecutor, S. Aaron Pine, Deputy, Everett, for Petitioner.

      11

      Nielsen, Broman & Associates, David B. Koch, Seattle, William B. Greene, Walla Walla, for Respondent.

      12

      JOHNSON, J.

      13

      The primary issue in this appeal is whether dissociative identity disorder (DID) is admissible under Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C.Cir.1923) and Washington Rules of Evidence (ER) 702 to establish the defense of insanity or diminished capacity. In a pretrial hearing, the trial court concluded DID testimony was not admissible under Frye or ER 702. Following trial by jury, the defendant, William B. Greene (Greene), was convicted of indecent liberties and first degree kidnapping. On appeal, holding that DID is generally accepted in the scientific community and relevant to the defenses of insanity and diminished capacity, the Court of Appeals reversed and remanded for a new trial. State v. Greene, 92 Wash.App. 80, 960 P.2d 980 (1998). We accepted review and now affirm in part and reverse in part the decision of the Court of Appeals. We agree with the Court of Appeals that DID is generally accepted within the scientific community as a diagnosable psychiatric condition. Under the facts of this case, however, we find the trial court properly refused to admit the proffered expert testimony regarding the defendant's dissociative condition because it would not have been helpful to the trier of fact as required under ER 702.

      14
      FACTS
      15

       

      16

      In 1988, Greene pleaded guilty to indecent liberties and was incarcerated at the Twin Rivers Correctional Center (Twin Rivers), where he was accepted into its sex offender treatment program (SOTP). While in the SOTP, Greene underwent psychiatric treatment with M.S., a psychotherapist and registered nurse specializing in psychiatric mental [1026] healthcare. Treatment included psychometric tests and hypnosis for the voices Greene complained of hearing in his head. Under hypnosis, Greene manifested 24 separate identities and several additional identity fragments, and was diagnosed with DID and major depression.

      17

      Greene was released from Twin Rivers in 1992, but voluntarily continued treatment through the SOTP, including individual sessions with M.S. In the months leading up to April 1994, Greene's condition, which had been stable, began deteriorating. On April 29, 1994, alarmed by a telephone conversation with Greene earlier in the day, M.S. arranged to visit Greene at his home. She wanted to assess if Greene required psychiatric observation in a hospital. M.S. often visited patients at their homes in her professional capacity. She had previously done so with Greene approximately 10 times without incident. On this occasion, however, Greene became aggressive, would not let M.S. leave his home, sexually assaulted her, left her bound and gagged in his home, and eventually drove off in her car. After M.S. freed herself, she contacted police and Greene was apprehended.

      18

      Greene was charged in Snohomish County Superior Court with indecent liberties and first degree kidnapping. Prior to trial, he pleaded not guilty by reason of insanity as a result of DID. Greene claimed that "Tyrone," one of his diagnosed alternate personalities, was the prime instigator of the incident with M.S. According to Greene, "Tyrone" was manifesting as a "child, clearly less than seven years of age, and incapable of understanding the nature and quality of his acts or the fact that they were either right or wrong." Clerk's Papers at 200. Greene also claimed at least four other of his alternate personalities exchanged executive control of his body during the incident.

      19

      The trial court judge conducted a pretrial hearing on the admissibility of DID expert testimony to establish a defense of insanity. The court concluded the proffered DID testimony was not admissible to establish a defense of insanity. Subsequent to this determination, the State made a motion in limine to exclude any DID testimony that would be used to establish a defense of diminished capacity. The trial court granted the motion and excluded the testimony.

      20

      A jury convicted Greene on both counts. Greene petitioned this court for direct review under RAP 4.2(a)(4). We declined review and transferred the case to the Court of Appeals. The Court of Appeals reversed and remanded. Greene, 92 Wash.App. 80, 960 P.2d 980. The State sought and we granted review.

      21
      DISSOCIATIVE IDENTITY DISORDER[1]
      22

       

      23

      DID is more commonly known as multiple personality disorder. American Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (4th ed.1994) (hereinafter DSM-IV) recognizes five distinguishable dissociative disorders, of which DID is one. The DSM-IV provides the following diagnostic criteria for DID:

      24

      A. The presence of two or more distinct identities or personality states (each with its own relatively enduring pattern of perceiving, relating to, and thinking about the environment and self).

      25

      B. At least two of these identities or personality states recurrently take control of the person's behavior.

      26

      C. Inability to recall important personal information that is too extensive to be explained by ordinary forgetfulness.

      27

      D. The disturbance is not due to the direct physiological effects of a substance (e.g., blackouts or chaotic behavior during Alcohol Intoxication) or a general medical condition (e.g., complex partial seizures).

      28

      DSM-IV at 487.

      29

      An individual suffering from DID has a nonintegrative identity nebulously divided between the primary identity (host) and at least one alternative identity or identity fragment (the alter(s)). DSM-IV at 484. This lack of integration results in debilitating ruptures in the patient's personality, behavior, thought, and memory.

      30

      [1027] In Western studies, the etiology of DID is most commonly understood to be childhood traumatism (e.g., death of a parent/sibling, wartime trauma, etc.) which triggers the pathological onset of severely disrupted ego identification. Colin A. Ross, Twelve Cognitive Errors About Multiple Personality Disorder, 44 Am. J. Psychotherapy 348, 353-54 (1990).

      31

      DID functions as a pathologically repressed coping mechanism, allowing a traumatized individual to "find lifesaving retreat in an altered phenomenal state, in much the way that a hypnotized person is able — not to escape pain — but to disassociate from the experience of pain." George B. Greaves, Multiple Personality 165 Years After Mary Reynolds, 168 J. Nervous & Mental Disease 577, 590 (1980).

      32

      The heterogeneity of alters (e.g., gender, age, race, sexual orientation, etc.) and their modes of coexisting with the host (e.g., coconscious, amnestic, amnestic with "leakage") is extremely varied and defies neat categorization. See Greaves, supra, at 582. However, childlike alters are the most frequently seen type of alters. Frank W. Putman et al, The Clinical Phenomenology of Multiple Personality Disorder: Review of 100 Recent Cases, 47 J. Clinical Psychiatry 285, 288 (1986).

      33
      ANALYSIS
      34

       

      35

      We determine the admissibility of scientific evidence using a two-part inquiry. State v. Janes, 121 Wash.2d 220, 232, 850 P.2d 495, 22 A.L.R.5th 921 (1993). First, the proposed testimony must meet the standard for admissibility under Frye v. United States, 293 F. 1013. Janes, 121 Wash.2d at 232, 850 P.2d 495. Second, the testimony must be admissible under ER 702. Janes, 121 Wash.2d at 232, 850 P.2d 495. In this case, the trial court held the proffered testimony did not meet either standard. Our review of admissibility under Frye is de novo. State v. Copeland, 130 Wash.2d 244, 255, 922 P.2d 1304 (1996). Our review of admissibility under ER 702 is for abuse of discretion. Copeland, 130 Wash.2d at 255, 922 P.2d 1304; State v. Cauthron, 120 Wash.2d 879, 887, 846 P.2d 502 (1993). We review each in turn.

      36

      Under the Frye standard, novel scientific evidence is admissible if (1) the scientific theory or principle upon which the evidence is based has gained general acceptance in the relevant scientific community of which it is a part; and (2) there are generally accepted methods of applying the theory or principle in a manner capable of producing reliable results. State v. Riker, 123 Wash.2d 351, 359, 869 P.2d 43 (1994) (citing Cauthron, 120 Wash.2d at 888-89, 846 P.2d 502). The Frye standard recognizes that because judges do not have the expertise to assess the reliability of scientific evidence, the courts must turn to experts in the particular field to help them determine the admissibility of the proffered testimony. Copeland, 130 Wash.2d at 255, 922 P.2d 1304 (citing Cauthron, 120 Wash.2d at 887, 846 P.2d 502). In applying the test, however, "our purpose is not to second-guess the scientific community." Janes, 121 Wash.2d at 232, 850 P.2d 495. Rather, the "`inquiry turns on the level of recognition accorded to the scientific principle involved — we look for general acceptance in the appropriate scientific community.'" Janes, 121 Wash.2d at 232-33, 850 P.2d 495 (quoting Cauthron, 120 Wash.2d at 887, 846 P.2d 502). "`If there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted.'" Copeland, 130 Wash.2d at 255, 922 P.2d 1304 (quoting Cauthron, 120 Wash.2d at 887, 846 P.2d 502).

      37

      In reviewing the trial court's conclusion that DID was not generally accepted within the relevant scientific community, the Court of Appeals faulted the trial court for merging the question of whether there was scientific consensus regarding DID as a psychiatric condition with the question of whether a person suffering from the condition may be considered legally "insane." Greene, 92 Wash.App. at 96-97, 960 P.2d 980. The Court of Appeals reasoned:

      38

      Under Frye, the question is whether DID is a generally accepted mental disorder. In contrast, the relationship between DID and insanity or diminished capacity is a legal issue more appropriately analyzed under ER 702.... In addition, concerns [1028] regarding potential misdiagnosis or faking of DID should be addressed under ER 702.

      39

      Greene, 92 Wash.App. at 96, 960 P.2d 980 (citation omitted) (citing Cauthron, 120 Wash.2d at 890, 846 P.2d 502). The Court of Appeals, therefore, found "whether the scientific community has reached consensus regarding the relationship between DID and insanity is not a relevant question for purposes of the Frye analysis." Greene, 92 Wash.App. at 97, 960 P.2d 980. Accordingly, the Court of Appeals limited its analysis to whether DID in principle and practice is generally accepted in the scientific community without reference to related legal determinations. Greene, 92 Wash.App. at 97-100, 960 P.2d 980. The court found that it was. Greene, 92 Wash.App. at 100, 960 P.2d 980.

      40

      We agree with the Court of Appeals that the relevant inquiry under Frye is general acceptance within the scientific community, without reference to its forensic application in any particular case. We also agree with the Court of Appeals that DID is now generally accepted within the relevant scientific community as a recognized mental condition that is regularly diagnosed and treated. As the Court of Appeals noted, the American Psychiatric Association includes DID within its diagnostic manual and outlines the diagnostic criteria for the disorder. Greene, 92 Wash.App. at 97-98, 960 P.2d 980 (citing DSM-IV at 484-87). "The DSM-IV's diagnostic criteria and classification of mental disorders `reflect a consensus of current formulations of evolving knowledge' in the mental health field." Greene, 92 Wash.App. at 98, 960 P.2d 980 (quoting DSM-IV at xxvii).

      41

      A review of the proffered expert testimony in this case further supports the view that the trial court erred in concluding DID is not generally accepted in the relevant scientific community. Dr. Robert B. Olsen, the defendant's expert, testified unequivocally that DID is generally accepted within the scientific community. Although recognizing there were those who disputed the scientific legitimacy of the disorder, Dr. Olsen testified this is not uncommon. According to Dr. Olsen, the consensus rate in any piece of the American Psychiatric Association's diagnostic manual is only about 85 percent (excluding, perhaps, mental retardation).

      42

      The State's expert, Dr. Gregg J. Gagliardi, did not substantially dispute Dr. Olsen's testimony. Although Dr. Gagliardi admitted there remained some controversy regarding the scientific legitimacy of DID, he did not testify that DID, as a diagnosable mental condition, was not generally accepted in the scientific community. Indeed, Dr. Gagliardi cited to two polls of professionals in the field that indicated an acceptance rate of 80 percent, and between 60 to 80 percent, respectively. Dr. Gagliardi himself believes that DID is based on legitimate scientific principles and has diagnosed the condition on several occasions in his capacity as a psychologist at Western State Hospital.

      43

      Although we recognize there is some continuing dispute regarding the strength of scientific evidence supporting DID and the accepted methods of diagnosis, the evidence in this case and a review of the available literature convince us that a majority of the relevant scientific community generally accepts DID as a diagnosable mental condition. Certainly, there is little dispute that DID is regularly diagnosed and treated by mental health professionals in this state,[2] as well as throughout the country. Accordingly, we conclude, as did the Court of Appeals, that expert testimony regarding DID meets the Frye standard for admissibility.

      44

      Our conclusion that the scientific principles underlying a diagnosis of DID are generally accepted within the scientific community does not necessarily mean, however, that such evidence is admissible in any particular case. Even if generally accepted in principle, proffered scientific evidence is inadmissible under ER 702 unless it is helpful to the trier of fact under the particular facts of the specific case in which the evidence is sought to be admitted. Cauthron, 120 [1029] Wash.2d at 889-90, 846 P.2d 502. In this case, the trial court found the evidence would not be helpful to the trier of fact and refused to admit it. We agree.

      45

      Under ER 702, expert testimony will be deemed helpful to the trier of fact only if its relevance can be established. Riker, 123 Wash.2d at 364, 869 P.2d 43. Scientific evidence that does not help the trier of fact resolve any issue of fact is irrelevant and does not meet the requirements of ER 702. Reese v. Stroh, 128 Wash.2d 300, 311, 907 P.2d 282 (1995) (Johnson, J., concurring).

      46

      The relevant question to be resolved by the jury in this case was whether, at the time he committed the acts in question, Greene's mental condition prevented him from appreciating the nature, quality, or wrongfulness of his actions, see State v. Box, 109 Wash.2d 320, 745 P.2d 23 (1987) (insanity) or, in the alternative, whether the alleged condition demonstrably impaired Greene's ability to form the mental intent necessary to commit the charged crimes. See State v. Eakins, 127 Wash.2d 490, 502, 902 P.2d 1236 (1995); State v. Griffin, 100 Wash.2d 417, 418-19, 670 P.2d 265 (1983) (diminished capacity).[3] In order to be helpful to the trier of fact, therefore, it is not enough that, based on generally accepted scientific principles, a defendant may be diagnosed as suffering from a particular mental condition. The diagnosis must, under the facts of the case, be capable of forensic application in order to help the trier of fact assess the defendant's mental state at the time of the crime. See State v. Wheaton, 121 Wash.2d 347, 352, 850 P.2d 507 (1993) (expert medical opinion must be adequate to permit legal sanity or insanity of the defendant to be assessed). Scientific principles that are generally accepted but are nevertheless incapable of forensic application under the facts of a particular case are not helpful to the trier of fact because such evidence fails to reasonably relate the defendant's alleged mental condition to the asserted inability to appreciate the nature of his or her actions or to form the required specific intent to commit the charged crime. See Griffin, 100 Wash.2d at 418-19, 670 P.2d 265; State v. Ferrick, 81 Wash.2d 942, 944-5, 506 P.2d 860 (1973). Thus, we agree with the Court of Appeals that in this case a primary consideration under ER 702 is whether and how the symptoms of DID are relevant to the legal concepts of insanity and diminished capacity. Greene, 92 Wash.App. at 100, 960 P.2d 980.

      47

      In State v. Wheaton, 121 Wash.2d 347, 850 P.2d 507 (1993), we addressed the virtually identical issue. The specific question there was whether a defendant diagnosed with multiple personality disorder was legally insane at the time of the offense. Wheaton, 121 Wash.2d at 348, 850 P.2d 507. We assumed that multiple personality disorder was a diagnosable condition under generally accepted scientific principles and, thus, expert testimony regarding such diagnosis met the Frye test for admissibility. Wheaton, 121 Wash.2d at 351-52, 850 P.2d 507 (assuming diagnosis valid and admissible under Frye). After an extensive analysis of the record and argument, however, we refused to adopt a specific legal standard by which to assess the sanity of a criminal defendant suffering from multiple personality disorder. Wheaton, 121 Wash.2d at 352-65, 850 P.2d 507. Our decision was based in large part on the lack of consensus, both in the courts and the medical community, on the proper forensic method to be used. See Wheaton, 121 Wash.2d at 352-65, 850 P.2d 507. We find ourselves in no better position today than we did then.

      48

      In certain respects, the record and testimony in Wheaton (which we determined to be inadequate) is superior to that presented here. In Wheaton, there was no dispute regarding the psychiatric evaluation of the defendant, and the parties stipulated to the defendant's mental condition at the time of the crime. Wheaton, 121 Wash.2d at 349, 850 P.2d 507. According to the stipulated facts, there was a "host personality" and one "alter personality." Wheaton, 121 Wash.2d [1030] at 349, 850 P.2d 507. At the time of the offense, the alter personality was in executive control of the physical body. Wheaton, 121 Wash.2d at 349, 850 P.2d 507. The parties also agreed the host personality was not conscious or in executive control of the physical body and had no independent knowledge of the acts constituting the offense. Wheaton, 121 Wash.2d at 349, 850 P.2d 507. Furthermore, the defendant's expert testified unequivocally that the host personality met the definition for insanity at the time of the crime. Wheaton, 121 Wash.2d at 350, 850 P.2d 507. Despite these virtually undisputed facts, we refused to decide the admissibility of expert testimony regarding the defendant's sanity at the time of the crime. Our decision stemmed directly from the fact the scientific community had not yet developed an accepted method to assess the sanity of a criminal defendant diagnosed as suffering from multiple personality disorder. Wheaton 121 Wash.2d at 354-65, 850 P.2d 507. In other words, the state of the science was incapable of reliable forensic application at that time.

      49

      In the present case, the proposed testimony regarding the defendant's mental condition is a great deal more complicated and unclear, as compared to Wheaton. The defendant's expert, Dr. Olsen, although apparently prepared to testify to the sanity of the alter (presumably the alter in control at the time of the crime), was unprepared to testify as to the sanity of "Mr. Greene." Dr. Olsen's explanation for this was that he was "not sure who Mr. Green[e] is." Report of Proceedings (RP), vol. II at 139. If one talks about the host personality, "[t]he host alter appears to be sane. But I am not in a position to render a judgment of sanity on the entire system." RP vol. II at 140.

      50

      In contrast, the State's expert, Dr. Gagliardi, testified it would be impossible, "honestly and professionally," to determine the ultimate legal question of whether a person suffering from DID was insane at the time of the crime. RP vol. III at 218. As to the scientific consensus regarding determinations of sanity, Dr. Gagliardi testified that "[o]pinions are all over the map." RP vol. III at 214. According to Dr. Gagliardi, the identification of personality states is "riddled with all of the same kinds of philosophical and scientific problems as the concept of personality itself," making it difficult to draw the line between where one personality state ends and another begins. RP vol. III at 175. "The practical problem for a forensic evaluator is trying to assess the personality states, alters that would have existed at the time of the crime." RP vol."III at 186-87. Moreover, according to Dr. Gagliardi, the possibility of "information leakage," control of one alter by another, and co-conscious personalities, "are the kind of questions that plague forensic evaluation, and were we to have good information about how these personality systems were put together and how this information was distributed in the personality, we might begin to answer those questions, but we are missing that kind of information." RP vol. III at 187-88.

      51

      In support of Greene's defense, the victim, M.S., was prepared to testify regarding her overall evaluation of the defendant in terms of his personality "system," as well as her perception of the personalities present at the time of the assault. In M.S.' opinion, there were several personalities present at the time of the assault: "Bill," the host personality; "Tyrone," a child alter who appeared to be around the age of three or four; "Sam," another alter; as well as a fourth unidentified alter, possibly "Otto." RP vol. VII at 486-88. Nevertheless, in support of the defense's theory of the case, M.S. was prepared to testify that the child alter, "Tyrone," was primarily in control at the time of the assault, and there were "substantial amnestic barriers" between Tyrone and the other personalities.[4] RP vol. VII at 488.

      52

      [1031] In our view, the helpfulness of the proffered expert testimony can be determined only in relation to a legal standard for culpability in the context of DID. As in Wheaton, we are invited by the testifying experts, the parties, and amici to adopt a specific approach to determine whether an individual suffering from DID is legally insane at the time of committing an offense. The various approaches primarily differ on which personality (or personalities) any mental examination should focus. Thus, an approach may focus on the mental condition of the host personality at the time of the offense; or, conversely, on the mental condition of the alter in control at the time of the offense; or, possibly, on the mental condition of each and every alter personality at the time of the crime (under this approach, if any significant alter is not aware of or does not acquiesce in the commission of the crime, such innocent "personlike" entities do not deserve to suffer punishment). According to the testimony and argument in this case, however, none of the various approaches have been accepted as producing results capable of reliably helping to resolve questions regarding sanity and/or mental capacity in a legal sense.

      53

      Dr. Olsen's comment that he was "not sure who Mr. Greene is" reflects the fundamental nature and difficulty of the question with which we are presented. That is, when a person suffering from DID is charged with a crime, the question becomes, "who is the proper defendant?" A determination of sanity in this context can be considered only subsequent to the determination of who (which alter personality) should be held responsible for the crime — the host, or possibly one or more of the alters. This, in turn, is related to the scientific possibility of identifying the controlling and/or knowledgeable alters at the time of the crime.

      54

      In Wheaton we expressly analyzed this identical problem:

      55

      It is not enough to say that [the host personality] was unconscious at the time of the offense. That would matter if the focus should be on the [host] personality.... If the focus here should be on the alter in executive control, as the trial court concluded, the question would be whether [the alter] was conscious at the time of the offense. Thus, the fact that [the host] was not conscious does not help resolve the underlying question, i.e., is it proper to focus on the alter personality?

      56

      Wheaton, 121 Wash.2d at 360, 850 P.2d 507.

      57

      The difficulty we have with the Court of Appeals conclusion in this case is that it assumes answers to the above questions. For example, the Court of Appeals reasons the evidence of DID is relevant to a determination of insanity because "Tyrone was the emergent identity, and the host and other alters were not co-conscious with Tyrone." Greene, 92 Wash.App. at 103, 960 P.2d 980. This assumes the proper focus of any determination of sanity is on the host, or possibly some or all of the other alters. As in Wheaton, we are unprepared to make such an assumption at this time.

      58

      We recognize that ultimately the question of who should be held responsible for the commission of a crime is a legal one. Wheaton, 121 Wash.2d at 353-54, 850 P.2d 507. In the present context, however, the answer largely depends on the ability of the scientific community to assist the courts in understanding how DID affects individuals suffering from it and how this may be related to a determination of legal culpability. Wheaton, 121 Wash.2d at 353-54, 850 P.2d 507. We do not exclude the possibility that there may be a case in which the sanity of a defendant suffering from DID can be reliably evaluated. However, based upon the evidence and testimony presented here, we do not find this is such a case. Accordingly, we must agree with the trial court that the proposed expert testimony in this case was inadmissible under ER 702 because it would not have been helpful to the trier of fact.

      59

      [1032]

      60

       

      61
      CONCLUSION
      62

       

      63

      To summarize, we hold DID is generally accepted in the psychiatric and psychological communities; in this case, DID testimony was properly excluded because it was not possible to reliably connect the symptoms of DID to the sanity or mental capacity of the defendant.

      64

      Affirmed in part and reversed in part.

      65

      SMITH, MADSEN, TALMADGE, SANDERS, IRELAND, JJ., and HOUGHTON, J.P.T., concur.

      66

      ALEXANDER, J. (concurring).

      67

      I agree with the majority's ultimate conclusion that the testimony concerning Greene's alleged dissociative identity disorder (DID) was properly excluded by the trial court. I part company with the majority only insofar as it states "that DID is now generally accepted within the relevant scientific community as a recognized mental condition that is regularly diagnosed and treated." Majority op. at 1027.

      68

      As the majority observes, it is beyond dispute that if "there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted." State v. Cauthron, 120 Wash.2d 879, 887, 846 P.2d 502 (1993). In my view, the State's submissions establish that DID has not yet become "generally accepted" within the psychiatric and psychological communities. The submissions suggest, rather, that there is a significant dispute between experts as to the validity of DID. For example, the State points to a recent survey of boardcertified psychiatrists which indicates that there is, in fact, a substantial dispute surrounding the validity of DID diagnoses. This survey concluded that "[a]mong boardcertified American psychiatrists, there currently appears to be little consensus regarding the diagnostic status or scientific validity of ... dissociative identity disorder [DID]." Harrison G. Pope, Jr. et al., Attitudes Toward DSM-IV Dissociative Disorders Diagnoses Among Board-Certified American Psychiatrists, 156 AM. J. PSYCHIATRY 321, 321 (1999) (emphasis added). Furthermore, this survey discloses that "only about one-third of [the 301 psychiatrists who responded to the survey] replied that ... [DID] should be included without reservations in DSM-IV." Pope et al., supra, at 321. Hardly a ringing endorsement. The State also cited other sources which demonstrate that the psychiatric and psychological communities have yet to "generally accept" diagnoses of DID. Pet. for Review at 8-10; Br. of Resp't at app. B; Supplemental Br. of Pet'r at 1-4. Finally, I note that even in the additional authority submitted by Greene there is an acknowledgement that "marked skepticism among professionals as to the legitimacy of the multiple personality diagnosis [i.e., DID] has been reported." Gary E. Dunn et al, Belief in the Existence of Multiple Personality Disorder Among Psychologists and Psychiatrists, 50 J. Clinical Psychol. 454, 454 (1994); see also Resp'ts Statement of Additional Auth.

      69

      In short, the State has established that there exists a significant dispute in the psychiatric and psychological communities regarding the validity of DID diagnoses. While I do not contend that DID will never gain general acceptance within the relevant scientific communities, I believe that validity of DID diagnoses remains an open question. In my view, the majority opinion reaches too far when it concludes that DID has gained general acceptance within the psychiatric and psychological communities so that testimony regarding DID will be admissible provided it satisfies the requirements of ER 702.

      70

      For these reasons I concur only in the result reached by the majority.

      71

      GUY, C.J., concurs.

      72

      [1] We include this brief description for background purposes only.

      73

      [2] As the facts of this case demonstrate, DID is diagnosed and treated in state-operated facilities by state-certified medical professionals. Greene himself was first diagnosed with the disorder while incarcerated at Twin Rivers and received treatment by state-provided mental health professionals through the state's SOTP, both in prison and thereafter.

      74

      [3] ER 702 controls the analysis for both insanity and diminished capacity. The State asks us to revisit our recent decision in State v. Ellis, 136 Wash.2d 498, 963 P.2d 843 (1998), in which we held the admissibility of expert testimony regarding diminished capacity is to be determined under ER 702. Ellis, 136 Wash.2d at 523, 963 P.2d 843. We decline the State's invitation. ER 702 is the standard for admissibility of expert testimony in Washington.

      75

      [4] Although we assume Greene is correctly diagnosed as suffering from DID, we note this assertion was likely to be contested at trial. The record contains at least one mental health evaluation that disputes the validity of the diagnosis of the defendant's disorder. The report; prepared by Dr. Daryl B. Mathews, director of residency training, Department of Psychiatry, University of Arkansas, suggests the defendant is feigning symptoms of DID in order to avoid responsibility and, moreover, was able to understand the nature and wrongfulness of his conduct at the time of the offense. Report of Dr. Daryl B. Mathews, Apr. 12, 1995 (App. C, State's Frye hearing memorandum). In regards to the original diagnosis that the defendant was suffering from DID, the report references an earlier evaluation by a psychologist at Twin Rivers who opined the defendant "is most likely a narcissistic, antisocial individual who is malingering [multiple personality disorder].... Consequently, the possibility that Mr. Greene is grooming his female therapist for subsequent victimization should not be dismissed lightly." Report of Dr. Mathews, supra.

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