The Insanity Defense Reform Act, 18 U.S.C. § 7 generally bars expert testimony to established a diminished capacity defense, if that lessened capacity falls short of demonstrating insanity. However, the Act, as construed by the courts, effects a bar only as to a complete defense predicated on something less than insanity; it does not bar such evidence if it serves to negate an element of the charged offense, such as mens rea. See United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).
A recent decision illustrates the continuing vitality of expert psychological testimony in a white collar case where specific intent is an essential element of the offense. In United States v. Mister, 553 F. Supp.2d 377 (D.N.J. 2008), the defendant was charged with a Hobbs Act violation for accepting payoffs on behalf of a member of the Pleasantville board of education. The defense wished to argue at trial that Mister was not told explicitly about the nature of the payments and thought the monies he funneled to the council member were campaign contributions, not payoffs for official action.
The defense sought to introduce the testimony of a psychologist who had tested Mister to the effect that the defendant was of low intelligence and also that he was highly suggestible. Acting on the government’s in limine motion to exclude all of the testimony under the Act and Pohlot, the trial court ruled that since an element of the offense was knowledge of the unlawful purpose of the activity, Mister was entitled to rebut that proof with evidence of his low intelligence and perception. However, the court drew the line at the “suggestibility” evidence, since it was not relevant to the issue of knowledge.
The Mister case, then, confirms that there remains an open door to the admission of certain psychological expert testimony in white collar cases. The key is relating the proposed testimony to a particular knowledge or intent element, rather than offering that testimony to more generally rebut the thrust of the government’s charge.