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Court Must Allow Psych Testimony in Tragic Gay Homicide Case

By Jonathan R. Tung, Esq. on May 19, 2016 | Last updated on March 21, 2019

Facing an extraordinarily troubling set of facts, a California appeals court decided to err on the side of an emotionally damaged killer whose life came spiraling down, culminating in a frenzied murder.

In the view of the court, the statutory prohibitions that preclude expert testimony on the subject of mens rea were improperly applied to the criminal defendant's disadvantage. And in a case such as this, such prejudice cannot be left undisturbed.

A Life of Abuse

Richard Arce Herrera had been sexually abused regularly throughout his life. He grew up in a household where his strict, disciplinarian father would often hit him after periods of drinking. When Herrera was eight, he was sexually molested by his dance teacher. When he was fifteen, he was forced into sex by an older man he met on the school bus. Between episodes of depression, drugs and regrettable sexual encounters, he attempted suicide three times.

The fateful night took place when Herrera was sexually assaulted in a high school friend's car by someone he once had romantic feelings for. But when Herrera rebuffed the friend's advances, the friend reacted negatively by slapping himself (yes, himself) in the head.

At that moment something in Herrera snapped. The court facts indicate that he suddenly saw all the men who'd abused him throughout the years in his high school friend and he was driven into a frenzied mental state. Herrera took a knife he'd bought and lodged between the seats and stabbed his companion 22 times. The struggle left his friend dead and Herrera panicked and remorseful.

A Critical Issue of Mental State

The most material issue before the jury was Herrera's mental state during the moments he killed his friend. The defense had wanted to present expert testimony as to Herrera's mental state by doctors who assessed Herrera's mental health but were parried by the prosecution who relied on California Penal Code's sec 28 and 29 prohibitions on any expert testimony opinion as to whether or not a defendant did or did not have the requisite mens rea for a crime. The jury returned a guilty verdict for murder.

Appellate Reversal

But the appeals court reversed, finding that the trial court extended the reading of sec. 28 and 29 too far.

In so doing, the lower court had excluded any testimony by the defense experts that went to Herrera's mental state, thereby gutting any reasonable hope of penetrating the key material issue of the case.

This was in direct contradiction to another California case that was directly on point. Secs. 28 and 29 do not mean a complete prohibition on any expert testimony as to a defendant's mental state, the court said. It simply places limits on an expert's formed opinion as to the defendant's mental state during the commission of the crime. To go further would be to prejudice a criminal defendant unfairly -- and any such result must be remanded for proper review.

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