The Death Penalty - Presentencing

Death penalty cases are divided into two phases: the guilt phase and the penalty phase. During the penalty phase, evidence is offered for aggravating or mitigating factors that can affect the sentencing. Death penalty statutes allow for a number of mitigating circumstances that require input from forensic psychiatry, as well as forensic psychology, neuropsychology or toxicology.

A capital defense attorney will invariably request a forensic psychiatric assessment or psychological testing as a way to educate the jury about a defendant’s psychiatric diagnosis and conditions, developmental failures, past physical or sexual abuse, drug and alcohol dependency, degree of intoxication at the time of the offense, previous brain trauma, relevant neurological conditions, relevant psychosocial history, intellectual deficiency, or a seemingly uneventful previous history.

Once the defense introduces mental health issues, the prosecutor has a right to introduce rebuttal evidence. Under these circumstances, the examiner explores the legitimacy of the issues raised by the capital defense to see if they are indeed legitimate or exaggerated, or if other issues are relevant to the determination of mitigation and aggravation. A jury considers the evidence and makes a decision as to whether the defendant will receive death or life in prison without the possibility of parole.

The emotional tensions of capital cases, however, often contaminate such forensic evaluations with defendant or even psychiatric professionals’ misrepresentations of such history – or contribute to ineffective capital defenses because important psychological or psychosocial history and information is overlooked. The Forensic Panel has the unmatched combination of capital case experience and forensic and clinical expertise that speaks for standards of the sciences to assess the multitude of mitigating factors, and to embed them in accurate context for a deliberating jury. The forensic investigative diligence that distinguishes The Forensic Panel particularly lends itself to capital litigation, where we are expected to unearth pertinent history otherwise buried or forgotten, either miles or years away. From psychiatry, to toxicology, to forensic pathology, to medicine, our carefully selected panel of distinguished professionals brings the clinical expertise of the cutting edge.

Having consulted to both sides in capital litigation, we are seasoned and effective in the pressure climate native to such complex work, and characteristically thrive in such cases where the forensic work needs to be as close to perfect quality and accuracy as possible – either to save a defendant’s life or to withstand the rigors of energetic cross examination.

Our clinical and forensic experience and psychiatric, medical and forensic science expertise enables The Forensic Panel to demonstrate what personal material is relevant to the instant offense and its origins, what is not, and to present findings in an ethical, objective, irrefutable, and cogent manner. The Forensic Panel’s peer reviewed consultation is unique oversight that transcends the high-pitched emotions that can so often distort the forensic psychiatry aspects of death penalty cases, and ensure the accuracy of our conclusions.

For this reason, capital attorneys also rely upon psychiatrists of The Forensic Panel, independent of our case examination, to prepare them for questioning witnesses on direct and on cross examination. For attorneys confronting articulate and experienced scientific experts, such preparation is an invaluable education and training. Capital litigation is one area where The Forensic Panel is particularly proud of its role in safeguarding fairness and scientific rigor from being derailed by a case’s public controversy.