Defendant is charged with one count of malice murder, three counts of armed robbery and five counts of kidnapping. The state seeks the death penalty. The state statute for determining mental retardation requires that the determination be made during the guilt-innocence phase of trial rather than prior to the trial like many other states. Defendant enters into evidence IQ test results of 71 and 68, witness' testimony of several adaptive skills problems that were present during the defendant's childhood. Two defense psychiatrists offer their professional opinions that the defendant is mentally retarded.

The state enters into evidence an IQ score of 74 and the opinion of the state psychiatric expert that the defendant is not mentally retarded. In addition to all of this mental retardation evidence, the state is puts on its case in chief concerning the alleged crimes of the defendant, and the defendant puts on a defense. The jury finds the defendant guilty. The jury does not find defendant "guilty but mentally retarded" because it believed the defendant did not prove his mental retardation beyond a reasonable doubt, as required by the statute.

The case proceeds to the sentencing phase, and the defendant is sentenced to death. Defendant contends on appeal that the standard of proof of "beyond a reasonable doubt" for mental retardation is too high.

Answer

What result?

See O.C.G.A. 17-7-131(c)(3) (1996) and Burgess v. State, 264 Ga. 777 (1994) (beyond a reasonable doubt is not too high a standard).

Several states require that the defendant establish mental retardation only by preponderance of the evidence. See N.M. Stat. Ann. 31-20a-2.1 (1996); Ark. Code Ann 5-4-618 (1996); Md. Code Ann. art. 27, 412(f) (1996); N.Y. Crim Pro. Law 400.27(12) (1996); Tenn. Code Ann. 39-13-203(b) (1996); Wash. Rev. code 10.95.030 (1996). See also Ind. Code 35-36-9-4 (1996) (defendant must establish by clear and convincing evidence); Colo. Rev. Stat. 16-9-402 (1996) (also clear and convincing standard of proof). Is having a lower standard of proof a more effective or fair way of determining the fact of mental retardation?

In addition, most of these states require a pre-trial determination by the court of the mental retardation of the defendant, or, at the very least, the court decides the issue instead of the jury. See e.g. Kan. Stat. Ann. 21-46239 (1996).  Can we reasonably expect a jury to be able to separate out all the mental retardation issues while it is deciding whether or not the person committed the crime alleged?

Lynn Friedewald

Emory University School of Law