Colorado Criminal Law – Using and Understanding the Effect of Posttraumatic Stress Disorder
by Colorado Criminal Defense Lawyer for Criminal Defense Law and Tactics – H. Michael Steinberg
Introduction: What is Posttraumatic Stress Disorder (PTSD)?
A person suffers from PTSD when he or she
1) has experienced, witnessed, or confronted an event that involved actual or threatened death, serious injury, or threatened physical integrity;
2) has responded with intense fear, helplessness, or horror;
3) experiences certain symptoms, including re-experiencing of the event, avoidance of reminders of the event, and hyper-vigilance/hyper-arousal
A diagnosis of PTSD is made when a person meets the DSM criteria. PTSD exists in many contexts and has a possible presence among immigrant from areas of social unrest or conflict, veterans, those who live in neighborhoods with especially high rates of violence, and those who suffered from sexual or physical abuse.
Clues to PTSD
The Criminal Defense Lawyer looking to determine a viable PTSD diagnosis should search for clues such as drug or alcohol abuse, numbing of emotions, difficulty sleeping nightmares, waking up startled, and depression. Determine if there is military service, or determine from the individual’s childhood, neighborhood, or family, whether there has been a traumatic event in the person’s past
Examples of the symptoms of PTSD also include nightmares, intrusive memories, avoiding the neighborhood where a trauma occurred even if it means going out of the way, avoiding watching television shows or news that remind the person of the event, jumpiness, being easily startled, and scanning the environment for danger, and irritability.
Only an expert can diagnose PTSD. Even with a prior diagnosis of PTSD, it critical to hire a trial expert during the pendency of a criminal case to review this diagnosis.
Diagnosing PTSD: For the diagnosis – see the criteria of the American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders,
An Expert can help answer certain important tactical questions in defending a Colorado Criminal Case:
Questions to an expert of about the implications of PTSD include:
How can this disorder-PTSD-affect a person’s mental state, behavior, and judgement?
How does a person’s PTSD affect his ability to form the [knowing, willful, etc.] mental state alleged in the crime charged?
How can PTSD affect the person’s judgment at the time of the alleged offense?
How is PTSD linked to the behavior in this case?
How did the PTSD contribute to the criminal activities?
Did the charged person’s PTSD cause him to take the action he did?
Did PTSD disorder cause the person to take the action at the time the act occurred?
Did the PTSD order affect the charged person’s motivation in committing this action?
Legal definitions may vary significantly from psychiatric definitions of the same concepts, such as insanity and competency.
PTSD as a Mental Health Defense at Pretrial, Trial, and Sentencing Stages.
At what stages is it proper to raise the existence of PTSD?.
Posttraumatic stress disorder may provide a defense at trial, either by supporting an insanity efense or by showing inability to form a mental state.
All Colorado criminal defense attorneys must not fail to investigate and present evidence of PTSD if it exists in any context.
How does PTSD relate to the commission of a crime?
PTSD may provide a defense to the crime charged, either because the Defendant was insane at the time of the offense, or was unable to form the charged mental state. A Defendant suffering from PTSD may also have grounds that may be presented as mitigation for the commission of a crime at the time of sentencing, because the existence of PTSD reduces culpability. W
The Need to Obtain Medical History Records
Medical and psychiatric records created near the time of the crime are critical to this defense, as are records that show the Defendant’s mental health history. Persons with PTSD may have sought veterans’ benefits through the Veteran’s Administration or disability benefits with the Social Security Administration. School counseling records, physician’s history and physical workups, substance abuse provider notes, and attorney’s records may all provide relevant observations and former diagnoses. Neighborhood crime rate data, military service records (especially showing combat), police reports, rape kit evaluations, and accident scene re-enactments may also show critical details of the source of a Defendant’s trauma.
PTSD is recognized as a legitimate mental disorder and as a valid defense.
Evidence about it is admissible in criminal, civil, and military proceedings. Courts frequently admit evidence of a victim’s PTSD, and defense counsel should consider using case law permitting this evidence to bolster their requests for consideration at sentencing.
This does not mean that presentation of a mental health defense will be obstacle-free.
Presentation of relevant evidence at trial requires strategic planning