Section Description Provided by Instructor
Law and advocacy have not kept pace with changes in the neuropsychiatric understanding of mental illness, its relationship with criminal justice involvement, or the tools needed for representing mentally ill clients. This seminar addresses this problem by teaching basic skills at the intersection of criminal law and neuropsychiatric illnesses. These skills are fundamental for lawyers who intend to practice in the area of criminal defense; although not the specific focus of this seminar, they are also relevant to civil practice and advocacy.
We will teach substantive and procedural criminal law issues, illuminated by the real world examples derived from case examples drawn from our experience in criminal defense. This practical approach to law will frame the in-depth discussions and teaching about the role of neuropsychiatric knowledge and the current state of the research on cognition, psychiatric and neurologic illnesses.
The representation of mentally ill clients raises a host of legal and ethical issues, at all stages of the representation. Topics range over substantive criminal law, including mens rea and affirmative mental health defenses and the role of mental health evidence in capital and non-capital sentencing determinations; criminal procedural law, including competency, the knowing, voluntary, and intelligent waiver of constitutional rights (Miranda and confessions, the rights to counsel and self-representation, the rights to testify or remain silent at trial), and the constellation of notice, discovery, and 5th Amendment issues raised when the government seeks a rebuttal mental health examination of the client; and ethical obligations (and related evidentiary questions), such as the lawyer’s duty to raise competence (and to what extent the client’s communications may be used as evidence of incompetence), over the client’s objections and the lawyer’s authority to introduce mental health in mitigation at a capital sentencing trial, if the client objects. Some of these issues will be novel to the students, while others will likely have been introduced in the traditional criminal law and criminal procedure classes. Even with the more familiar topics, the seminar’s unique focus will provide a framework for further, in-depth discussion, rooted in the facts of the cases and the particular litigation problems posed in each.
Mental health components
Understanding mental illness is fundamental to working with criminal defendants. Attorneys should learn to identify symptoms and behaviors motivated by mental illness, develop approaches to working with clients with severe mental illness, and recognize what types of mental health experts are needed for a case and when and how to work with them. Using a multi-disciplinary approach, we propose to provide a foundational understanding of mental illnesses, the current scientific bases for understanding their causes and determinants, and the bio-psychosocial multi-generational model of investigating and understanding how mental illness shaped the trajectory of a client's life. This approach includes a focus on the lived experience of those with mental illness, how stigma and shame affect the attorney-client relationship and investigation of a criminal case, how attorney expectations and cultural bias may affect the relationship, identifying the specific ways in which the illness has shaped a specific client's life, and understanding better and culturally appropriate ways to work with clients with mental illness. These issues which directly shape the attorney-client relationship are the same forces which affect the judges, jurors, witnesses and other actors in the criminal justice system and therefore the approach to advocacy must incorporate an approach to these very issues.
M 4:20-6:10 pm
Method of Evaluation
J.D. Writing Credit
Learning Outcome Goals
- students will develop a deeper understanding of substantive criminal law and criminal procedure through an examination of the particular concerns presented by a defendant with mental health issues
- acquire understanding and facility in mental health, neuropsychiatric approaches to understanding behavior, and uses lawyers can make of current science
- develop their understanding of disparities and the law by gaining extensive exposure to how those with mental illness fare in the criminal justice system
- practical lawyering skills --- including establishing rapport with a client; interviewing clients and clients’ family members; social history investigation
- students will discuss the ethical considerations that arise when representing a client with mental health issues