defendant "suffered from Post Traumatic Stress Disorder and Major Depression," and as a result of this illness, "was unable to appreciate [the] wrongfulness of his conduct." Wilson Report, November 30, 1995 at 7. He also described defendant's mental state at the time of the hijacking as "fragile, vulnerable, and unstable." Id. at 5.
Dr. Abudabbeh diagnosed defendant's PTSD as less severe than the others. Although Dr. Abudabbeh concluded in the report that "on November 23-24, 1985, Mr. Rezaq did suffer from Posttraumatic Stress Disorder, Chronic," and that "as a result of his mental illness, Mr. Rezaq was unable to appreciate the wrongfulness of his acts . . . ." Abudabbeh Report, Dec. 1995, at 8., conspicuously absent from Dr. Abudabbeh's report is the kind of description of defendant's condition that would indicate that defendant case of PTSD and depression was indeed severe. Nevertheless, these three reports, when reviewed as a whole, indicate that defendant's case of PTSD meets the test of insanity as set out in 18 U.S.C. § 17(a). Accordingly, defendant's expert evidence cannot be excluded on relevancy grounds.
The government also maintains that, even if the evidence is relevant to defendant's insanity defense, it should nevertheless be precluded by the court because its "probative value is substantially outweighed by the danger of . . . confusion of the issues, or misleading the jury." Fed. R. Evid. 403. The government, however, provides no support for this contention. Rather, the government merely recites a concern raised by Congress when it passed the Insanity Defense Reform Act of 1984 that psychiatric testimony, in certain instances, may be needlessly confusing. See Govt.'s Mot., at 13. The government, however, has not asserted that the psychiatric evidence in this case is either needlessly confusing or has the potential to mislead the jury. The court therefore finds that the probative value of defendant's expert testimony in support of his insanity defense is not substantially outweighed by the risk of unfair prejudice. Accordingly, the court shall deny the part of the government's motion in limine that seeks to preclude the defendant from introducing lay and expert testimony, pursuant to Rule 12.2(a), in support of his insanity defense.
B. Government's Request for a Preliminary Hearing
The government also moves the court to enter an Order directing defendant to introduce evidence at a pretrial hearing so that the court may determine the admissibility and scope of the lay and expert testimony and evidence that defendant intends to offer at trial in support of his insanity defense pursuant to Rule 12.2(a). The government, however, cites a series of cases that support an entirely different proposition -- that defendant should be required to make an additional proffer with respect to evidence offered under Rule 12.2(b) to negate an element of the offense. See Govt.'s Mot., at 19-22 (citing United States v. Childress, 313 U.S. App. D.C. 133, 58 F.3d 693 (D.C. Cir.) (evidence of mental retardation offered under Rule 12.2(b) to negate specific intent), cert. denied, 133 L. Ed. 2d 768, 116 S. Ct. 825 (1996); United States v. Cameron, 907 F.2d 1051 (11th Cir. 1990) (psychiatric evidence offered under Rule 12.2(b) to negate specific intent); United States v. Fazzini, 871 F.2d 635 (7th Cir.) (evidence of drunkenness offered under Rule 12.2(b) to negate intent), cert. denied, 493 U.S. 982, 107 L. Ed. 2d 518, 110 S. Ct. 517 (1989); United States v. Click, 807 F.2d 847 (9th Cir. 1987) (evidence of medical records offered under 12.2(b) to determine whether defendant entered false confession); United States v. Gold, 661 F. Supp. 1127 (D.D.C. 1987) (whether evidence offered under Rule 12.2(b) addressed the issue of specific intent); United States v. Shorter, 618 F. Supp. 255 (D.D.C. 1985) (evidence of gambling addiction offered under Rule 12.2(b) to negate willfulness in tax prosecution).
A more detailed proffer may be necessary with respect to notices under Rule 12.2(b) in light of the fact that many crimes are general intent offenses, and in such cases, psychological evidence is deemed not relevant. See United States v. Cameron, 907 F.2d 1051, 1063 n. 20 (11th Cir. 1990); accord United States v. Fazzini, 871 F.2d 635, 640-41 (7th Cir.), cert. denied, 493 U.S. 982, 107 L. Ed. 2d 518, 110 S. Ct. 517 (1989); United States v. Twine, 853 F.2d 676, 679 (9th Cir. 1988); United States v. White, 766 F.2d 22 (1st Cir. 1985); United States v. Gold, 661 F. Supp. 1127 (D.D.C. 1987); United States v. Frisbee, 623 F. Supp. 1217, 1219-23 (N.D.Cal. 1985). Moreover, "because psychiatric evidence (1) will only rarely negate specific intent, (2) presents an inherent danger that it will distract the jury's [sic] from focusing on the actual presence or absence of mens rea, and (3) 'may easily slide into wider usage that opens up the jury to theories of defense more akin to justification,' district courts must examine such psychiatric evidence carefully to ascertain whether it would, if believed, support a legally acceptable theory of lack of mens rea.'" Cameron, 907 F.2d at 1067 (citations omitted).
Thus, courts in this Circuit have generally followed the approach articulated in United States v. Brawner, 153 U.S. App. D.C. 1, 471 F.2d 969 (D.C. Cir. 1972) when dealing with evidence offered pursuant to Rule 12.2(b). In Brawner, the court observed:
Our rule permits the introduction of expert testimony as to abnormal condition if it is relevant to negative, or establish the specific mental condition that is an element of the crime. The receipt of this expert testimony to negative the mental condition of specific intent requires careful administration by the trial judge. Where the proof is not offered in the first instance as evidence of exonerating mental disease or defect within the ALI rule the judge may, and ordinarily would, require counsel first to make a proffer of the proof to be adduced outside the presence of the jury. The judge will then determine whether the testimony is grounded in sufficient scientific support to warrant use in the courtroom, and whether it would aid the jury in reaching a decision on the ultimate issues.