Using Mental Illness as a Criminal Defense

By Melissa M. Gomez
Special to the Legal

In the child sexual abuse criminal trial of Jerry Sandusky, the former assistant coach of the Penn State University football team, the defense made an argument that Sandusky had histrionic personality disorder, described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) as a disorder in which people act in a very emotional and dramatic way that draws attention to themselves, including acting or looking overly seductive and believing that relationships are more intimate than they really are. Considering that Sandusky was convicted on 45 out of 48 criminal counts, one can assume that this particular defense didn’t work … at least not in the way the defense hoped it would.

Evidently, the reason this defense was employed for Sandusky was to counteract the negative inference associated with the so-called “creepy love letters” that Sandusky sent to one of his victims. The problem for the defense in making such an argument, though, was that as it attempted to use this personality disorder to explain one piece of bad evidence, it may well have validated some of the other pieces of evidence. In other words, it could be perceived as an admission that Sandusky acted in a sexually inappropriate manner with children. Jurors were given conflicting arguments when Sandusky denied sexual contact with children but then claimed he has a personality disorder that causes him to behave in a sexually inappropriate manner. How did jurors deal with the conflict? They likely either ignored it completely or decided that it was evidence in support of the probability that Sandusky was guilty as charged.

In other words, this strategy failed to pass the “Doberman Test.” Basically, it is a strategy that may look good when viewed in a narrow perspective, but then comes back and bites you in the rear later on. This can happen with any strategy, but particularly in criminal trials with these “psychiatric disorder” cases.

First, if the disorder is “discovered” in the context of preparing for a criminal trial, it can look contrived. This was especially true in this case because Sandusky’s “disorder” apparently only applied to pre-pubescent boys. (From what I read, there was no evidence of love letters, shower hugs or other inappropriate contact with any 350-pound Penn State linemen.)

Second, sometimes these defenses can seem like excuses for the behavior (which, again sounds like an admission) as opposed to a defense against it. Cases of insanity, in which a defendant has a real and pervasive disorder that makes him or her unaware of his or her own actions and their implications, are one thing. The evidence has to be clear, the disorder needs to be apparent and there needs to be an admission that the crime at issue was, in fact, perpetrated by the defendant as a result of said extreme mental illness. Saying that a defendant has a disorder that looks like the crime but did not commit the crime is a dangerous line to walk, and in cases like this can do more harm than good.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at [email protected] or call 215-292-7956.

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