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6 Keys for Defense Counsel to Consider if a Client Has a Mental Issue


After 12 years of practicing law, I have come to recognize when a client might have a mental issue quickly. I have had some clients with very serious mental illnesses and some of them were untreated. What I have learned is that most clients prefer for you to tell them the truth and speak to them slowly and distinctly regarding their issues. I believe it helps to build a rapport with the client and the client feels more comfortable in the end.

I have seen clients that are schizophrenic but when medicated, are compliant. I have had clients that were borderline mentally retarded/challenged, that were considered competent to stand trial and wanted a trial because they did not understand the legal process. The result did not end well and left me feeling like I did not perform my job. Then I have seen others adjudicated insane, were not prosecuted and sent off to a mental hospital for an unlimited stay, which is better than the alternative.

  1. Mental Issue Case Law

Obligation to investigate “Mental Deficiency”: “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington.

  1. Define Your Client’s Abilities and Limitations

Mental illness refers to a person’s emotions, moods, and thought processes. Mental illness can develop at any time during life and has nothing to do with intellectual skills. It can be temporary. It can be curable. Mental illness is identified and treated by psychiatrists and psychologists.

Intellectual disability refers to a below average ability to learn and process information. It is a developmental disorder and has its onset before the age of 18. A person with an intellectual disability has an IQ <70 and delayed adaptive skills (e.g., caring for oneself, community use, social skills, self-direction, functional academics). Intellectual disability is a lifelong disability and is not curable. It is identified and treated by psychologists, educators, and vocational specialists. Mental illness and intellectual disability can co-occur in a person.

  1. Recognize The Probabilities or Realities

There is an 11% rate of mental illness in the general adult U.S. population. In the prison population, this rate jumps to roughly 55%. The highest rate is seen in local jails, with a prevalence rate of 64%. State prisons have a 56% rate, while federal prisons have a 45% rate.

  1. Act on Facts, and Gut Feelings

Act on early indicators associated with mental illness and intellectual disability. During an interview with a client, ask your client basic questions to determine their level of competency.

There are many factors that are associated with mental illness. Some of these factors are family history of mental health diagnoses, a history of drug and alcohol abuse, prior hospitalizations, history of suicide attempts, homelessness, multiple incarcerations, history of psychotropic medications (see list), special education placement in behavior programs, history of foster care or other out of home placements, history of disability check, employment difficulties, history of physical, sexual, and/or emotional abuse, parent or guardian who abused alcohol, high rate of incarceration among family members. Among the things you may observe in your interactions with your client are factors such as sad mood or rapidly changing moods, report of recent unexplained weight loss or gain, psychomotor agitation or retardation, report of sleep problems, difficulty concentrating or an inability to move from one topic to another, delusional thought, anger or irritability, loosely associated thoughts.

When interviewing a client’s family to assess whether or not your client may have a mental illness or an intellectual disability, there are several areas that should be covered (see Family Interview). When speaking with a family member, keep in mind that if your client does in fact have a psychiatric issue, his family may not be aware of it or may be reluctant to acknowledge his limitations. Additionally, family members may suffer from some of the same limitations as your client.

  1. Interact Thoughtfully with Your Client

It is important to discuss intellectual disability and/or mental illness with your client before you go into the courtroom to discuss it. Even if you are merely requesting funds to hire an expert or conduct an evaluation, make sure that you have discussed this with your client too. Remember that this may be the first time your client has heard that she may show signs of mental illness or an intellectual disability.

Emphasize that having a psychiatric diagnosis doesn’t mean that he or she can’t function, just that they may need extra supports to be successful. You must talk with your client in a way they can understand. Do not make assumptions about what your client knows. Be willing to speak slowly and use simple sentences if needed. Do not move from one topic to the next until you are certain they understands.

  1. Recognize Your Own Limitations

You are in a unique position to raise questions about your client’s mental status. Given the rates of mental disorders and cognitive deficits in the population we serve, it is likely that you will encounter these issues on a frequent basis. Get to know the experts in your area. Psychologists assess for intellectual disability as well as mental disorders, but not all psychologists are knowledgeable in both areas. Psychiatrists deal with mental health issues from a more medical perspective.

Please feel free to call me if you gave a family member that may have a mental issue and needs legal representation. Get Relief Get Results.

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