PTSD as a Nevada Legal Defense
(Explained by Las Vegas Criminal Lawyers)

angry man biting his raised forearm

What is PTSD?

Post-traumatic stress disorder (PTSD) is an anxiety disorder that develops in some people who have experienced a shocking, scary, or dangerous event, such as combat or sexual assault.

In order to be diagnosed with PTSD, an adult must exhibit all of the following for at least one month:

  • One or more “re-experiencing” symptoms (flashbacks, bad dreams or frightening thoughts);
  • One or more “avoidance” symptoms (avoiding thoughts or feelings related to the traumatic event or staying away from places, events, or objects associated with it);
  • At least two “arousal and reactivity” symptoms (easily startled, feeling tense or “on edge,” difficulty sleeping or angry outbursts); and
  • At least two “cognition and mood” symptoms (problems remembering key parts of the event, negative thoughts, guilt or blame, or loss of interest in enjoyable activities).1

Is PTSD a valid legal defense in Nevada?

PTSD is not, in itself, a legal defense to a crime. It is, however, sometimes claimed as a basis for a valid criminal defense such as insanity or self-defense.

However, while certain states (such as California) have accepted PTSD in connection with such defenses, there are no reported Nevada cases in which PTSD has been successfully used as the basis for a criminal defense.

A 2012 review of U.S. appellate cases dealing with PTSD as a legal defense turned up 39 cases in which the defense claim of PTSD was at issue.2 None of these cases was from Nevada.

However, a case from the Nevada Supreme Court suggests that PTSD would likely be treated similarly to battered-spouse syndrome, at least insofar as criminal procedure is concerned. In that case, Mitchell v. State, the justices held that a court does not violate a defendant's 5th Amendment rights when it orders a psychiatric examination after a defendant claims that he or she reasonably acted in self-defense because of post-traumatic stress disorder.3 The court explained its holding as follows:

“When a defendant seeks to avoid criminal responsibility based upon the defense of insanity or battered-spouse syndrome, a district court may order an independent psychiatric examination. By extension, we conclude that a district court may order a psychiatric examination when a defendant claims that he or she reasonably acted in self-defense because of post-traumatic stress disorder.”

What is interesting to note about this decision is that nowhere did the Nevada Supreme Court suggest that PTSD cannot serve as the basis for a claim of self-defense.

PTSD and justifiable self-defense

In Nevada, self-defense is justified when:

  • The defendant reasonably believes he/she is facing immediate bodily harm, and
  • The defendant uses no more physical force than necessary to protect him/herself.

A person is entitled to kill another in self-defense or defense of another person when the danger appears so urgent and pressing that, in order to save the person's own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary.4

To make use of this defense, you must honestly and reasonably believe that killing someone is necessary to defend yourself or someone else against imminent unlawful force. The test is whether a reasonable person, standing in your shoes, would believe that such force is necessary to prevent imminent death or great bodily harm.

A claim of self-defense based on post-traumatic stress disorder usually occurs, therefore, in a situation in which someone not suffering from PTSD would not have reasonably believed harm was imminent or that force was necessary to prevent it. To claim PTSD as a basis for self-defense, a defendant must establish – usually through expert testimony --- that someone with PTSD could reasonably believe harm was imminent, even though a healthy person might not have.

  • Example: Joe has returned from serving with the military in Afghanistan, where he was wounded in an IED (improvised explosive device) attack.  Since his return, Joe has been plagued by PTSD. One day, he is protesting in front of the Veterans Administration when the police come and ask him to move. He sees their uniforms and thinks they are Afghan fighters, so he attacks them. Although a healthy person would not have thought harm was imminent, Joe's PTSD may offer an explanation. A jury might find that his subjective belief that harm was imminent was reasonable.

How PTSD could lead to an insanity defense

In Nevada, insanity is a complete defense to criminal charges. However, the legal definition of insanity is quite different from the medical one and can be very difficult to prove.

To claim insanity as a matter of law, a defendant must have suffered from a disease or defect of the mind that prevented him or her either from:

  • Knowing or understanding the nature and capacity of his/her act; or
  • Appreciating that his or her conduct was illegal.

Simply suffering from mental illness is not enough. To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act the defendant was laboring under such a defect of reason that he or she did not know that what he or she was doing was wrong.5

An insanity defense based on PTSD is, therefore, unlikely to be sustained unless the defendant was undergoing a dissociative episode at the time of the crime.6

  • Example: In the example above, if Joe's PTSD was so severe that he didn't even realize he was attacking the police, he could be found not guilty by reason of insanity. A successful defense would require a strong documented history of dissociation and good expert testimony.

Our caring Nevada criminal lawyers have relationships with the top expert witnesses in the state. We understand how to present the most compelling case when the defendant's sanity is at issue.

Call us for help…

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If you were accused of a crime in Nevada and believe that post-traumatic stress disorder may have been to blame, we invite you to contact us for a free consultation.

We defend civilians and veterans throughout the state of Nevada against accusations of violating Nevada assault and battery laws, Nevada homicide laws, Nevada domestic violence laws and other criminal statutes.

To schedule your free consultation, call us at 702-DEFENSE (702-333-3673) or fill out the form on this page. One of our compassionate Reno or Las Vegas criminal defense lawyers will get back to you promptly to discuss the best defense to your Nevada criminal charges.


Legal references:

  1. The National Institute of Mental Health, Post-Traumatic Stress Disorder.
  2. Omri Berger, Dale E. McNiel and Renée L. Binder, PTSD as a Criminal Defense: A Review of Case Law, Journal of the American Academy of Psychiatry and the Law Online December 2012, 40 (4) 509-521.
  3. Mitchell v. State (2008) 124 Nev. 807 192 P.3d 721.NRS 200.200.
  4. Nevada Jury Instructions, Sanity/Insanity #1.
  5. For a discussion of not guilty verdicts in other states, see Berger, et al, supra, note 2.

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