IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                                                                                    
STATE OF WASHINGTON,                             ) No. 42000-3-I                                                                                      
          Respondent,                            ) DIVISION ONE                                                                                       
          v.                                     )                                                                                                    
WILLIAM B. GREENE,                               ) PUBLISHED OPINION                                                                                  
          Appellant.                             ) FILED                                                                                              
ELLINGTON, J. -- State mental health professionals diagnosed William Greene                                                                           
with Dissociative Identity Disorder ("DID"), formerly known as Multiple                                                                               
Personality Disorder ("MPD"), and treated him for almost three years before                                                                           
the events at issue in this case.  At his trial on charges of indecent                                                                                
liberties and kidnapping, the court excluded evidence of the disorder and                                                                             
Mr. Greene's diagnosis under the Frye test and ER 702.  We reverse and                                                                                
remand for a new trial because DID is generally accepted in the scientific                                                                            
community and was relevant to Mr. Greene's defenses of insanity and                                                                                   
diminished capacity.

			Dissociative Identity Disorder                                                                                                                        
Dissociative Identity Disorder reflects a failure to integrate various                                                                                
aspects of identity, memory, and consciousness.  American Psychiatric                                                                                 
Ass'n, Diagnostic & Statistical Manual of Mental Disorders 484 (4th ed.                                                                               
1994) [hereinafter "DSM-IV"].  The DSM-IV provides diagnostic criteria for                                                                            
five dissociative disorders, including DID.  The diagnostic criteria for                                                                              
DID are:

	A.   The presence of two or more distinct identities or personality states                                                                            
	(each with its own relatively enduring pattern of perceiving, relating to,                                                                            
	and thinking about the environment and self).                                                                                                         

	B.   At least two of these identities or personality states recurrently                                                                               
	take control of the person's behavior.                                                                                                                

	C.   Inability to recall important personal information that is too                                                                                   
	extensive to be explained by ordinary forgetfulness.                                                                                                  

	D.   The disturbance is not due to the direct physiological effects of a                                                                              
	substance (e.g., blackouts or chaotic behavior during Alcohol Intoxication)                                                                           
	or a general medical condition (e.g., complex partial seizures).  Note:  In                                                                           
	children, the symptoms are not attributable to imaginary playmates or other                                                                           
	fantasy play.                                                                                                                                         
DSM-IV at 487.  In general, an individual with DID will have a primary                                                                                
identity (sometimes referred to as the "host"), which bears the                                                                                       
individual's given name and is usually passive, dependent, guilty, and                                                                                
depressed.  Id. at 484.  The alternate identities (or "alters") frequently                                                                            
have different names and contrasting characteristics.  Id.  The alters may                                                                            
vary from the host in a variety of ways, including reported age, gender,                                                                              
vocabulary, general knowledge, or predominant affect.  Id.  Child and                                                                                 
adolescent alters are the most commonly reported types of alternate                                                                                   

Alters may exist on a co-conscious basis (i.e., aware of the host's and                                                                               
other alters' thoughts and feelings), a separate consciousness basis (i.e.,                                                                           
little or no awareness of the thoughts and feelings of the host or other                                                                              
alters and vice versa), or a mixture of both.2  For example, in the                                                                                   
documented case of Jonah, the three alters each had intimate knowledge of                                                                             
the host, but the host had no awareness of the alters.3  In addition, one                                                                             
of the alters (Sammy) could either coexist with the host or take complete                                                                             
control, and was fully aware of the existence of the other two alters.4                                                                               
The other two alters had only peripheral knowledge of each other or Sammy                                                                             
and would take complete control of behavior upon emergence.5  Likewise, in                                                                            
the case of Sybil, one of the alters (Vicky) was co-conscious of the host                                                                             
and all of the other alters, but the host was amnesic toward all of the                                                                               
alternate identities.6

Particular identities may emerge in specific circumstances.  DSM-IV at 484.                                                                           
For example, in Jonah's case, one alter would emerge when interpersonal                                                                               
difficulties arose, another alter would appear to deal with sexual                                                                                    
problems, and a third alter would take control in situations of physical                                                                              
danger.7  An identity not in control of the person's behavior may gain                                                                                
access to consciousness by producing auditory or visual hallucinations                                                                                
(e.g., a voice giving instructions).  DSM-IV at 484-85.  A transition                                                                                 
between identities is generally triggered by psychosocial stress.  Id. at                                                                             

Research consistently links DID with childhood trauma, most commonly                                                                                  
physical or sexual abuse or both.8  Other forms of childhood trauma include                                                                           
neglect, abandonment, wartime experiences, witnessing the death of a parent                                                                           
or sibling, near death experiences, and painful medical procedures.9                                                                                  
Individuals with DID frequently satisfy the criteria for Posttraumatic                                                                                
Stress Disorder ("PTSD"), the characteristic symptoms of which are                                                                                    
persistent reexperiencing of a traumatic event, persistent avoidance of                                                                               
stimuli associated with the trauma, and persistent symptoms of increased                                                                              
arousal (e.g., difficulty sleeping or concentrating, hypervigilance,                                                                                  
exaggerated startle response).10 

Sigmund Freud posited that the ability of the ego to split is one of its                                                                              
normal functions.11  Modern research appears to confirm that dissociation                                                                             
occurs to some degree in normal individuals, and that a continuum exists                                                                              
between the minor dissociations of everyday life (e.g., daydreaming,                                                                                  
"getting lost" in a book or movie, highway hypnosis) and the major or                                                                                 
pathological forms of dissociation (e.g., DID).12  Although dispute exists                                                                            
concerning the etiology of DID, the most accepted explanation is that                                                                                 
childhood trauma disrupts ego formation in such manner as to advance the                                                                              
individual toward the pathological end of the dissociation continuum.13  As                                                                           
further explained by Dr. Greaves:

	One needs to also bear in mind what, exactly, it is that dissociation                                                                                 
	accomplishes.  Sybil did not escape torture through dissociation; she did                                                                             
	not alter her insane environment.  Instead, she was able to find lifesaving                                                                           
	retreat in an altered phenomenal state, in much the way that a hypnotized                                                                             
	person is able - not to escape pain - but to dissociate from the experience                                                                           
	of pain.  The inability to dissociate under such circumstances might very                                                                             
	well lead to death by cardiac arrest.14                                                                                                               
Dissociative Identity Disorder is diagnosed three to nine times more                                                                                  
frequently in adult females than in adult males.  DSM-IV at 485-86.  Data                                                                             
concerning the diagnosis frequency ratio between female and male children                                                                             
is limited.  Id. at 486.  Possible explanations for the lower incidence of                                                                            
DID diagnosis among men include:  (i) male children are not abused as                                                                                 
frequently as female children; (ii) adult males do not seek treatment as                                                                              
often as adult females; and (iii) adult males with DID are incarcerated                                                                               
more frequently and are therefore less likely than adult females with DID                                                                             
to be diagnosed or participate in studies.15  Women tend to manifest more                                                                             
identities than men, averaging 15 or more, whereas men average roughly                                                                                
eight identities.  DSM-IV at 486.  Individuals with DID spend an average of                                                                           
six to seven years in the mental health care system and receive at least                                                                              
one, and often multiple, incorrect diagnoses before being properly                                                                                    
diagnosed with DID.16 

Opponents of DID offer four interrelated criticisms:  (i) the child abuse                                                                             
reported by DID patients is unsubstantiated; (ii) DID is an iatrogenic17                                                                              
artifact; (iii) clinicians cannot determine whether DID patients are                                                                                  
malingering or faking the disorder; and (iv) the diagnostic criteria for                                                                              
DID are vague.18  Each of the above criticisms is addressed further below in                                                                          
connection with the application of the Frye and ER 702 standards. 


General History 

During childhood, William Greene experienced severe physical, sexual, and                                                                             
emotional abuse.  At the insistence of his mother, Mr. Greene became a ward                                                                           
of the State of California at the age of eight; he spent the following nine                                                                           
years in various juvenile facilities and foster homes.  He continued to                                                                               
endure both physical and sexual abuse, including a gang rape at the age of                                                                            
12 by three older boys.  Sometime during this period, Mr. Greene developed                                                                            
a substance abuse problem; he reports having used a variety of drugs,                                                                                 
including cocaine.

At the age of 17, Mr. Greene escaped from a juvenile facility and fled to                                                                             
Washington with another youth.  He was eventually arrested and convicted in                                                                           
1972 of taking a motor vehicle.  From that point forward, Mr. Greene spent                                                                            
most of his life in prison.  He was convicted in 1975 of sodomy, in 1980 of                                                                           
attempted burglary, in 1984 of indecent liberties, and in 1988, again of                                                                              
indecent liberties.  Following the last conviction, Mr. Greene participated                                                                           
in the Sex Offender Treatment Program at Twin Rivers Correction Center.                                                                               
While in the program, Mr. Greene was diagnosed with both Major Depression                                                                             
and Multiple Personality Disorder (or DID).

After Mr. Greene's diagnosis with DID, a total of 24 "alters," of both                                                                                
genders, different races, and varying ages, were identified.  The alters                                                                              
relevant to this case are Sam, Auto (or Otto), and Tyrone.  Sam was                                                                                   
initially violent, but after addressing abuse issues in therapy, Sam "vowed                                                                           
to never cause physical harm to anyone again."    Auto/Otto is a helper                                                                               
personality with a generally flat affect.  Tyrone originally presented as                                                                             
an adult, black male who used "rough and assaultive" language.  After                                                                                 
Mr. Greene began addressing his childhood abuse issues, Tyrone started                                                                                
regressing in age.

Mr. Greene was released from Twin Rivers in November 1992.  From then until                                                                           
April 1994, Mr. Greene voluntarily continued therapy by attending each                                                                                
week:  one group session through the Sex Offender Treatment Program; at                                                                               
least one Cocaine Anonymous meeting; and two 90-minute individual sessions                                                                            
with M.S., the psychiatric mental health nurse who was Mr. Greene's primary                                                                           
therapist at Twin Rivers.  In addition, during this period, Mr. Greene was                                                                            
gainfully employed, maintained a non-abusive, intimate relationship, and                                                                              
had a number of healthy friendships.

During the two months prior to April 1994, Mr. Greene's condition began                                                                               
deteriorating.  Due to a fire at his employer's facility, Mr. Greene was                                                                              
scheduled to be laid off.  M.S. considered Mr. Greene to be a suicide risk                                                                            
and she instructed him to call her on a daily basis.  On April 29, 1994,                                                                              
alarmed by a telephone conversation with him earlier in the day, M.S.                                                                                 
visited Mr. Greene at his home to evaluate if hospitalization was required.                                                                           
While M.S. was at his apartment, Mr. Greene took the actions giving rise to                                                                           
the charges at issue, i.e., indecent liberties and first degree kidnapping.

Frye / ER 702 Hearing 
Prior to trial, Mr. Greene entered a written plea of not guilty by reason                                                                             
of insanity.  Mr. Greene alleged that, as a result of his DID, he was                                                                                 
insane or had diminished capacity at the time of the crime.  The State                                                                                
moved to suppress any evidence of DID as not meeting the standards of Frye                                                                            
v. United States, 293 F. 1013 (D.C. Cir. 1923), and its progeny.                                                                                      

The trial court conducted a three-day hearing concerning the State's                                                                                  
motion.  Dr. Robert Barrington Olsen, a practicing psychiatrist and                                                                                   
president of the Washington State Psychiatric Association, testified for                                                                              
the defense.  Dr. Olsen testified that DID is a generally recognized mental                                                                           
disorder.  Dr. Olsen further testified that he had not been asked to                                                                                  
develop an opinion whether Mr. Greene was insane at the time of the crimes                                                                            
charged, and that he believed insanity was a legal concept, not a medical                                                                             

Dr. Gregg J. Gagliardi, a forensic psychologist at Western State Hospital,                                                                            
testified for the State.  Dr. Gagliardi testified that, in the course of                                                                              
his work, he has been asked to evaluate six individuals attempting to use                                                                             
DID in their criminal defense.  Of those six individuals, Dr. Gagliardi                                                                               
opined that two "definitely had the condition."  Dr. Gagliardi further                                                                                
testified that a poll conducted in the United States showed that 80 percent                                                                           
of the over 3,000 physicians and psychologists surveyed recognized DID as a                                                                           
mental disorder.  On this point, Dr. Gagliardi did not dispute Dr. Olsen's                                                                            
testimony that the consensus rate for any portion of the DSM-IV is only                                                                               
about 85 percent.  In addition, Dr. Gagliardi testified that he was among                                                                             
the 80 percent who believed in DID.  Dr. Gagliardi explained, however, that                                                                           
opponents of DID have criticized the DSM-IV's diagnostic criteria and                                                                                 
expressed concerns about potential malingering or faking of the disorder.                                                                             
Dr. Gagliardi thought more research was required to address the                                                                                       
relationship between DID and insanity, but understood the paucity of such                                                                             
research, stating that "sanity is, after all, a legal question."                                                                                      

In addition to the testimony of Drs. Olsen and Gagliardi, the trial court                                                                             
considered the DSM-IV and various articles provided by the parties before                                                                             
issuing its ruling.  The trial court found that "[t]he diagnosis of MPD/DID                                                                           
is not generally accepted in the professional mental health community," and                                                                           
concluded that "MPD/DID has no relevance to the insanity defense that                                                                                 
satisfies the Frye test" and "[t]estimony regarding MPD/DID would not be                                                                              
helpful to a finder of fact."  The trial court therefore excluded the                                                                                 
insanity defense and any testimony related thereto.  On the State's motion,                                                                           
the trial court also excluded any evidence of DID in relation to the                                                                                  
defense of diminished capacity.

Trial Testimony
At trial, M.S. was called by the State to testify.  In recounting the                                                                                 
events of April 29, 1994, M.S. stated that, when she arrived at                                                                                       
Mr. Greene's apartment, he did not immediately answer the door.  As she                                                                               
started to leave, Mr. Greene came out of his apartment and announced, "We                                                                             
are here."  M.S. observed that Mr. Greene appeared disheveled and unshaven,                                                                           
which was uncommon for him.  She also discovered that his apartment was                                                                               
uncharacteristically messy.

M.S. began inquiring about Mr. Greene's employment situation and attempting                                                                           
to assess his mental state.  M.S. found Mr. Greene's behavior unusual in                                                                              
that his responses were labored and his speech was extremely slow.  At one                                                                            
point, Mr. Greene began crying and complained of a severe headache.  In                                                                               
response to questions about his financial status, Mr. Greene frantically                                                                              
searched through his wallet, showed M.S. three one-hundred dollar bills and                                                                           
declared, "That is all."

Noticing at that point a glazed look on Mr. Greene's face, M.S. asked him                                                                             
whether he was "high."  After Mr. Greene acknowledged that he was, M.S.                                                                               
announced she was leaving.  Mr. Greene then became extremely emotional.  He                                                                           
pushed on M.S.'s shoulder and said, "No."  She backed away from him,                                                                                  
grabbed her keys, and attempted to use the attached capstun.  When she                                                                                
aimed the capstun at him, Mr. Greene grabbed M.S.'s hand, causing spray to                                                                            
discharge into her hand.

M.S. dropped the keys and capstun and started to retreat from Mr. Greene.                                                                             
She tripped over a telephone cord and started to fall backward.  Mr. Greene                                                                           
grabbed M.S.'s shirt as she fell, and the shirt ripped open.  As M.S. lay                                                                             
on the hallway floor, Mr. Greene knelt beside her and tried to pull off her                                                                           
bra.  She pushed him away, scratched his face and chest, and instructed him                                                                           
"don't do this."  Mr. Greene managed to pull down M.S.'s bra, removed his                                                                             
own shirt, and began intermittently sucking and jiggling M.S.'s right                                                                                 

At some point, M.S. began to cry; she then brought her hands to her face                                                                              
and got the capstun spray in her eyes.  Mr. Greene helped her to the                                                                                  
bathroom and gently washed her hands and wiped her eyes.  During this short                                                                           
period, Mr. Greene's demeanor changed, and M.S. took the opportunity to                                                                               
plead with him to stop this behavior.  Mr. Greene replied, "I got to do                                                                               

Mr. Greene then sat M.S. in a chair in the bathroom and became transfixed                                                                             
by her breasts.  For the next two hours, Mr. Greene alternatively touched,                                                                            
jiggled, and sucked on M.S.'s breasts in a ritualistic manner.  During this                                                                           
period, M.S. kept talking to him about the therapy work they had done and                                                                             
what she thought was happening to him.  Mr. Greene was uncharacteristically                                                                           

After each cycle of touching, jiggling, and sucking on M.S.'s breasts,                                                                                
Mr. Greene would go to the bathroom sink and inject something into his arm.                                                                           
Mr. Greene performed a total of six or seven of these cycles.  Beginning                                                                              
with the third or fourth cycle, Mr. Greene pulled down his pants, crouched                                                                            
in front of M.S., and massaged the end of his penis while performing the                                                                              
ritual with M.S.'s breasts.  Mr. Greene never achieved an erection, never                                                                             
touched the shaft of his penis, and did not ejaculate.  Throughout the                                                                                
latter cycles, Mr. Greene exhibited a rocking motion, which M.S. later                                                                                
testified was a soothing behavior indicative of mental distress.  In her                                                                              
testimony, M.S. described Mr. Greene's overall affect during this period as                                                                           
that of a child.

At some point, M.S. had fallen off the chair and onto the bathroom floor.                                                                             
After the sixth or seventh cycle, Mr. Greene stopped rubbing his penis, put                                                                           
his head on M.S.'s shoulder, and pleaded with her to "be nice" to him.                                                                                
M.S. patted Mr. Greene's head and told him she wouldn't hurt him.                                                                                     
Mr. Greene began sobbing.

Mr. Greene's affect then changed.  He straightened up "like a man" and                                                                                
again injected himself.  He started touching M.S. again, and then stopped,                                                                            
saying, "You can go."  M.S. tried to stand up, but her legs had fallen                                                                                
asleep while she was lying on the floor.  Mr. Greene rubbed her legs to                                                                               
stimulate circulation.  M.S. then started to stand up, saw Mr. Greene's                                                                               
hands coming toward her, took a step backward, and knocked over a container                                                                           
of oil.  Mr. Greene began cleaning up the oil, but then, his affect                                                                                   
changed, and he was again staring at M.S.'s breasts.  She shoved him and he                                                                           
fell back against the toilet.  On cross-examination, M.S. opined that, by                                                                             
pushing Mr. Greene, she startled him out of his trance-like behavior.                                                                                 
Mr. Greene then repeated that M.S. could leave.  He stood aside to let her                                                                            
exit, but she realized she was not wearing a shirt, and she began to cry.                                                                             
Mr. Greene gave her a clean sweat shirt, but as M.S. was searching for her                                                                            
keys, Mr. Greene changed his mind about letting her leave.  He backed M.S.                                                                            
into the bedroom and tied her hands behind her back.  Mr. Greene then made                                                                            
two telephone calls.  When he finished talking, he pulled the cord out of                                                                             
the telephone and used it to tie M.S.'s feet to her hands.  He also wrapped                                                                           
her in a sheet and put duct tape over her mouth; the tape, however, did not                                                                           
stick to M.S.'s lips because she held out her tongue while Mr. Greene was                                                                             
applying it.

Mr. Greene located M.S.'s keys and started to leave, but because M.S. was                                                                             
concerned about confidential patient files in her car, she begged                                                                                     
Mr. Greene (through the duct tape) not to take the car.  Mr. Greene                                                                                   
returned to the bedroom, removed the duct tape, put a sock in M.S.'s mouth,                                                                           
and applied a larger piece of tape.  Mr. Greene then left the apartment,                                                                              
driving away in M.S.'s car.  Within roughly 15 minutes, M.S. was able to                                                                              
free herself from the bindings.  She discovered the telephones in the                                                                                 
apartment were inoperable, so she went across the street to Providence                                                                                
Hospital, where she gave a statement to police.  Mr. Greene was apprehended                                                                           
later that evening. 

Offer of Proof
As an offer of proof concerning Mr. Greene's defenses, with the jury                                                                                  
excused, M.S. testified that she believed at the time of the incident Bill                                                                            
(the host), Tyrone, Sam, and Auto/Otto were intermittently present,19 and                                                                             
she opined that Tyrone had age regressed to four, or possibly three, at the                                                                           
time of the crime.  She also testified that substantial amnesic barriers                                                                              
exist between Tyrone and the other alters.  In a report M.S. prepared                                                                                 
approximately two months after the incident, she speculated that Sam had                                                                              
been actively attempting to stop the "assault," but could not maintain                                                                                
control long enough to accomplish this objective due to the high level of                                                                             
drugs in Mr. Greene's system.

Following trial, Mr. Greene was found guilty on both counts, and sentenced                                                                            
to life imprisonment without the possibility of parole as a "persistent                                                                               
offender" pursuant to RCW 9.94A.120(4).  Mr. Greene petitioned for direct                                                                             
review by the Supreme Court pursuant to RAP 4.2(a)(4), and by Order dated                                                                             
January 7, 1998, the case was transferred to this Court.  On motion, the                                                                              
Commissioner granted "nine concerned law professors" permission to file a                                                                             
brief as amici curiae.

			Standards of Admissibility for Expert Testimony                                                                                                       
To determine whether expert testimony concerning novel scientific evidence                                                                            
is admissible, Washington courts use a two-part inquiry:  (i) does the                                                                                
proposed testimony satisfy the standard enunciated in Frye v. United                                                                                  
States, 293 F. 1013 (D.C. Cir. 1923); and (ii) does the proposed testimony                                                                            
satisfy the standards of ER 702.  State v. Janes, 121 Wn.2d 220, 232, 850                                                                             
P.2d 495 (1993).  Under Frye, evidence derived from a scientific theory is                                                                            
admissible only if the theory has achieved general acceptance in the                                                                                  
relevant scientific community.20  Id. (quoting State v. Martin, 101 Wn.2d                                                                             
713, 719, 684 P.2d 651 (1984)).  A trial court's decision under the Frye                                                                              
standard is reviewed de novo.  State v. Cauthron, 120 Wn.2d 879, 887, 846                                                                             
P.2d 502 (1993).  In considering whether the scientific theory at issue has                                                                           
achieved general acceptance, appellate courts undertake a searching review                                                                            
that need not be confined to the record and may involve consideration of                                                                              
the available scientific literature, secondary legal authority, and cases                                                                             
of other jurisdictions.  Id. at 887-88; see also Copeland, 130 Wn.2d 244,                                                                             
255-56, 922 P.2d 1304 (1996) (materials unavailable until after a Frye                                                                                
hearing may also be considered).  If a particular scientific theory or                                                                                
technique is sufficiently accepted within the relevant scientific                                                                                     
community, any concerns regarding the possibility of error or mistake in                                                                              
the case at hand are issues to be addressed under ER 702 or by the trier of                                                                           
fact.  Cauthron, 120 Wn.2d at 889, 890. 

ER 702 provides:

		 If scientific, technical, or other specialized knowledge will assist                                                                             
	the trier of fact to understand the evidence or to determine a fact in                                                                                
	issue, a witness qualified as an expert by knowledge, skill, experience,                                                                              
	training, or education, may testify thereto in the form of an opinion or                                                                              
ER 702 thus requires two inquiries:  (i) does the proffered witness qualify                                                                           
as an expert; and (ii) would the proposed testimony be helpful to the trier                                                                           
of fact.  Janes, 121 Wn.2d at 235-36.  A trial court's decision under                                                                                 
ER 702 will not be disturbed on appeal unless an abuse of discretion is                                                                               
shown.  Cauthron, 120 Wn.2d at 890.

			Application of Frye Standard                                                                                                                          
The trial court concluded that DID does not satisfy the Frye standard                                                                                 
because scientific research does not address whether an individual with DID                                                                           
is "insane" and has not provided a sufficiently reliable means of                                                                                     
distinguishing between authentic and false manifestations of DID.  In so                                                                              
concluding, the trial court inappropriately merged the Frye analysis with                                                                             
the ER 702 inquiry.

Under Frye, the question is whether DID is a generally accepted mental                                                                                
disorder.  In contrast, the relationship between DID and insanity or                                                                                  
diminished capacity is a legal issue more appropriately analyzed under                                                                                
ER 702.  See Janes, 121 Wn.2d at 233-36 (separating the issue whether the                                                                             
battered child syndrome satisfies the Frye requirement of "general                                                                                    
acceptance" from the question, under ER 702, whether evidence concerning                                                                              
the battered child syndrome would help the trier of fact evaluate if the                                                                              
defendant, allegedly suffering from the syndrome, reasonably perceived an                                                                             
imminent danger of serious bodily injury and thereby met the legal                                                                                    
definition of self-defense).  In addition, concerns regarding potential                                                                               
misdiagnosis or faking of DID should be addressed under ER 702.  Cauthron,                                                                            
120 Wn.2d at 890.

The trial court's and the State's insistence that the research concerning                                                                             
DID address whether individuals with the disorder meet the legal definition                                                                           
of insanity before deeming it admissible ignores the distinction between                                                                              
law and medicine.  The fundamental role of the mental health professional                                                                             
is to diagnose and treat mental disorders, not to assess criminal                                                                                     
responsibility.  See RCW 18.71.011 (defining the practice of medicine); RCW                                                                           
18.83.010(1) (defining the practice of psychology); State v. White, 60                                                                                
Wn.2d 551, 585, 374 P.2d 942 (1962), cert. denied, 375 U.S. 883, 84 S. Ct.                                                                            
154, 11 L. Ed. 2d 113 (1963) ("standard of criminal responsibility is a                                                                               
legal rather than a medical or scientific problem"); see also DSM-IV at                                                                               
xxvii ("The clinical and scientific considerations involved in                                                                                        
categorization of these conditions as mental disorders may not be wholly                                                                              
relevant to legal judgments, for example, that take into account such                                                                                 
issues as individual responsibility . . . ."). 

Here, the State's own witness acknowledged that mental health researchers                                                                             
have little or no reason to study the relationship between DID and                                                                                    

	I don't know that anybody's done a study that investigates . . . in an                                                                                
	empirical or scientific way how a disorder like DID affects sanity.  And                                                                              
	there's a good reason for that, because sanity is, after all, a legal                                                                                 
	question . . . .  It's like mixing apples and oranges.  They're two very                                                                              
	different sets of concepts and ideas.                                                                                                                 
Thus, whether the scientific community has reached consensus regarding the                                                                            
relationship between DID and insanity is not a relevant question for                                                                                  
purposes of the Frye analysis.  Cf. Fed. R. Evid. 704(b) ("No expert                                                                                  
witness testifying with respect to the mental state or condition of a                                                                                 
defendant in a criminal case may state an opinion or inference as to                                                                                  
whether the defendant did or did not have the mental state or condition                                                                               
constituting an element of the crime charged or of a defense thereto.  Such                                                                           
ultimate issues are matters for the trier of fact alone."). 

With regard to the appropriate inquiry under Frye, the trial court's                                                                                  
finding that DID is not a generally accepted mental disorder is contrary to                                                                           
the evidence.  The DSM-IV identifies DID as a mental disorder and outlines                                                                            
the diagnostic criteria for the illness.  DSM-IV at 484-87.  The DSM-IV's                                                                             
diagnostic criteria and classification of mental disorders reflect a " consensus                                                                                  
of current formulations of evolving knowledge" in the mental                                                                                
health field.  DSM-IV at xxvii (emphasis added).  The DSM-IV, like its                                                                                
predecessor, the DSM-III-R,21 provides guidance to the courts in determining                                                                          
the acceptance of a psychiatric diagnosis.  In re Young, 122 Wn.2d 1, 28                                                                              
n.4, 857 P.2d 989 (1993).

The State's expert, Dr. Gagliardi, testified that one survey estimated that                                                                           
DID has an 80 percent acceptance rate among psychiatrists and                                                                                         
psychologists.  According to the undisputed testimony of Dr. Olsen, this                                                                              
level of agreement is consistent with the acceptance rate for most                                                                                    
disorders described in the DSM-IV.  Dr. Gagliardi never took the position                                                                             
that DID was not generally accepted; he merely testified about the                                                                                    
criticisms expressed by a minority of mental health professionals.  Cf.                                                                               
Ross, supra note 13, at 348 ("[T]here is no published work [as of 1990]                                                                               
that systematically argues that MPD is not a legitimate diagnosis.").                                                                                 

Among the criticisms mentioned by Dr. Gagliardi was the argument, adopted                                                                             
by the trial court, that changes from the DSM-III-R to the DSM-IV indicate                                                                            
a lack of consensus regarding DID.  We find this reasoning inappropriate                                                                              
and circular.  It seeks to measure whether a new theory has achieved                                                                                  
general acceptance by comparing it with a previous version of the theory                                                                              
and rejecting it in the event any changes have occurred.  Such reasoning                                                                              
not only discourages, it effectively prohibits, courtroom discourse                                                                                   
concerning advances in science.

As alluded to earlier, skeptics of DID also express doubt whether DID is                                                                              
related to childhood trauma.  For example, Dr. Piper complains that                                                                                   
proponents of DID accept uncritically the allegations of child abuse made                                                                             
by DID patients.  Piper, supra note 18, at 11.  Dr. Piper implies that,                                                                               
because such childhood trauma is unsubstantiated and because child abuse is                                                                           
also reported by patients with other mental disorders, such as borderline                                                                             
personality disorder, a posttraumatic etiology of DID cannot be                                                                                       
demonstrated.  Id. at 9-10.

These challenges appear to be baseless.  As Dr. Gleaves indicates, in two                                                                             
studies attempting to corroborate abuse histories, abuse was confirmed in                                                                             
85 and 95 percent of the cases, respectively.  Gleaves, supra note 8, at                                                                              
54.  In addition, Dr. Gleaves indicates that the scientific literature does                                                                           
not report a single case in which the alleged abuse in a patient with DID                                                                             
was found to be totally fabricated.  Id.  Dr. Gleaves's article was                                                                                   
published in 1996, two years after Dr. Piper's.  Moreover, to the extent                                                                              
patients with other disorders also recount incidents of childhood abuse,                                                                              
such reports do not necessarily disprove a connection between DID and                                                                                 
trauma, but rather might merely indicate different responses to similar                                                                               
stimuli.  In any event, however, we need not resolve the scientific debate                                                                            
concerning the etiology of DID; that DID is a generally accepted mental                                                                               
disorder, regardless of its cause, is sufficient for purposes of Frye.  See                                                                           
Cauthron, 120 Wn.2d at 887 ("Because judges do not have the expertise                                                                                 
required to decide whether a challenged scientific theory is correct, we                                                                              
defer this judgment to scientists.  This inquiry turns on the level of                                                                                
recognition accorded to the scientific principle involved . . . .").

The State's proposition to the contrary, i.e., that DID is inadmissible per                                                                           
se, simply goes too far.  The State's per se rule would exclude evidence of                                                                           
DID not only in cases in which an individual seeks to escape criminal                                                                                 
responsibility, but also in cases in which introduction of the evidence                                                                               
might serve to protect either an individual with DID or others.  See, e.g.,                                                                           
Vo v. Pham, 81 Wn. App. 781, 916 P.2d 462 (1996) (in an action to quiet                                                                               
title, remanding for a determination whether a guardian ad litem should be                                                                            
appointed for defendant who apparently suffered from DID); Wall v. Fairview                                                                           
Hosp. & Healthcare Serv., 568 N.W.2d 194 (Minn. Ct. App. 1997), review                                                                                
granted (Oct. 21, 1997) (concluding that individuals with DID were                                                                                    
"vulnerable adults" for purposes of statute requiring professionals to                                                                                
report abuse or neglect of such persons); In re Jarred R., 236 A.D.2d 888,                                                                            
654 N.Y.S.2d 64 (1997) (terminating parental rights of woman diagnosed with                                                                           
DID and borderline personality disorder because her condition rendered her                                                                            
incapable of caring for her children); compare RCW 71.05.020(8) (for                                                                                  
purposes of involuntary civil commitment based on grave disability, query                                                                             
whether DID would satisfy the requirement of a mental disorder in the event                                                                           
the State's per se rule of exclusion were adopted).  In light of the                                                                                  
scientific evidence and the ramifications of the State's antipodal                                                                                    
position, we hold, as a matter of law, that DID meets the Frye standard,                                                                              
but leave to the discretion of a trial court under ER 702 whether expert                                                                              
testimony concerning DID is admissible in a particular case.

				Application of ER 702                                                                                                                                 
The qualifications of Drs. Olsen and Gagliardi were not challenged below                                                                              
and are not at issue on appeal.  Thus, our review with regard to ER 702 is                                                                            
limited to assessing whether the trial court abused its discretion in                                                                                 
concluding that evidence of DID would not assist the jury.  In addressing                                                                             
this issue, two questions must be considered:  (i) whether (and how) the                                                                              
symptoms of DID are relevant to the legal concepts of insanity and                                                                                    
diminished capacity; and (ii) whether concerns over iatrogenic formation of                                                                           
DID, malingering or faking the disorder, and potential misdiagnosis of DID                                                                            
render evidence of DID unhelpful to the trier of fact.

				Relevance Inquiry Under ER 702                                                                                                                        
Washington courts have so far declined to resolve the first issue stated                                                                              
above because the respective parties did not develop an adequate record for                                                                           
review.  State v. Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993); State                                                                             
v. Jones, 82 Wn. App. 871, 876, 920 P.2d 225 (1996), review denied, 131                                                                               
Wn.2d 1014, 932 P.2d 1257 (1997).  Other jurisdictions and commentators                                                                               
resolve the issue in a variety of ways:  (i) the whole-body method, in                                                                                
which DID is essentially ignored;22 (ii) a rebuttable presumption of                                                                                  
insanity for individuals with DID;23 (iii) the "global" approach, which                                                                               
examines whether all of the identities were, or at least the host was,                                                                                
aware of the nature and wrongfulness of the conduct;24 and (iv) the alter                                                                             
test, which asks whether the identity emergent at the time of the crime                                                                               
possessed sufficient mental capacity.25

A number of these authorities are unpersuasive because either the analysis                                                                            
is superficial26 or the burdens of proof27 or standards of criminal                                                                                   
responsibility28 differ from those in Washington.  In addition, the bulk of                                                                           
these authorities offer an unsatisfying result because they attempt to                                                                                
impose a per se rule when the evidence (and common sense) indicates that                                                                              
DID manifests itself somewhat differently in each individual and each                                                                                 
situation.  Thus, we resist the State's, the defense's, and amici's                                                                                   
invitation to adopt one of the methods described above and instead                                                                                    
implement a case-by-case approach, which examines whether the symptoms of                                                                             
DID manifested by an individual in a particular situation have relevance                                                                              
with regard to the defenses asserted. 

In Washington, insanity is statutorily defined as follows:                                                                                            

	At the time of the commission of the offense, as a result of mental disease                                                                           
	or defect, the mind of the actor was affected to such extent that:                                                                                    
	(a)  He was unable to perceive the nature and quality of the act with which                                                                           
	he is charged; or                                                                                                                                     

	(b)  He was unable to tell right from wrong with reference to the                                                                                     
	particular act charged.                                                                                                                               
RCW 9A.12.010(1).  The defendant bears the burden of proving insanity by a                                                                            
preponderance of the evidence.29  RCW 9A.12.010(2).  In Washington, because                                                                           
the Legislature attempted to abolish the insanity defense, the defense is                                                                             
narrowly construed and given only its constitutionally required meaning.                                                                              
State v. White, 60 Wn.2d 551, 590, 374 P.2d 942 (1962), cert. denied, 375                                                                             
U.S. 883, 84 S. Ct. 154, 11 L. Ed. 2d 113 (1963).  Thus, unlike a number of                                                                           
other states, Washington does not recognize lack of volitional control or                                                                             
"irresistible impulse" as an element of the insanity defense.  Id. at 579-                                                                            
80, 589-93.  Substantial evidence of insanity must be presented before a                                                                              
jury instruction on the defense is warranted.  State v. Wicks, 98 Wn.2d                                                                               
620, 622, 657 P.2d 781 (1983). 

Applying the insanity standard to the facts of this case, evidence of DID                                                                             
appears relevant, at least with regard to the indecent liberties charge.                                                                              
The evidence at trial, combined with the offer of proof, indicates that, at                                                                           
the time of the conduct giving rise to the indecent liberties charge,                                                                                 
Tyrone was the emergent identity, and the host and other alters were not co-                                                                          
conscious with Tyrone.  According to M.S., Mr. Greene's overall affect                                                                                
while touching her was that of a child, and she estimated that Tyrone had                                                                             
the mental state at most of a four-year-old boy.

M.S.'s observations are relevant to the insanity defense because they tend                                                                            
to show that, at the time of the indecent liberties, Mr. Greene was                                                                                   
incapable of perceiving the nature of his actions or distinguishing between                                                                           
right and wrong.  Arguably, his host and adult alters were unconscious, and                                                                           
his emergent alter had the mental capacity of a young child.  Mr. Greene                                                                              
should therefore have been permitted to present this testimony to the jury.                                                                           
See ER 402 ("All relevant evidence is admissible . . . .").  Without the                                                                              
aid of expert testimony, however, the jury would have likely been unable to                                                                           
reach an informed decision concerning the extent to which DID affected                                                                                
Mr. Greene's sanity.  Compare Janes, 121 Wn.2d 220, 234-36, 850 P.2d 495                                                                              
(1993) (expert testimony was needed to inform the jury that abused children                                                                           
perceive danger more acutely than unabused children and might reasonably                                                                              
connect apparently innocuous behavior with a threat of serious bodily                                                                                 

By way of contrast, M.S.'s opinion that the alter known as Sam was                                                                                    
attempting to stop Tyrone but could not maintain presence long enough to do                                                                           
so does not tend to establish an insanity defense.  As mentioned earlier,                                                                             
lack of volitional control does not demonstrate insanity in Washington.  In                                                                           
addition, M.S.'s impression that Sam's inability to take or maintain                                                                                  
control resulted from the drugs injected by Tyrone is also irrelevant for                                                                             
purposes of proving an insanity defense.  See RCW 9A.16.090 ("No act                                                                                  
committed by a person while in a state of voluntary intoxication shall be                                                                             
deemed less criminal by reason of his condition . . . .").  Lack of                                                                                   
volitional control and voluntary intoxication might, however, have                                                                                    
relevance to a diminished capacity defense.

Sam's desire to stop Tyrone suggests that he might have understood the                                                                                
nature and wrongfulness of Tyrone's behavior.  If so, questions arise about                                                                           
the internal consistency of M.S.'s testimony.  Was Sam co-conscious, but                                                                              
unable to maintain control, or was Sam, like the other identities,                                                                                    
unconscious to such extent that we need only evaluate Tyrone's mental                                                                                 
capacity?30  A careful review of the chronology of events indicates that                                                                              
possibly both scenarios occurred, but in sequence. 

During the two-hour period in which the acts of indecent liberties                                                                                    
transpired, Mr. Greene was completely nonresponsive and did not manifest                                                                              
any signs of transition or attempted transition from one alter to another.                                                                            
Arguably, during this period, Tyrone was emergent and the other identities                                                                            
were unconscious.  At the end of this two-hour period, Mr. Greene appealed                                                                            
to M.S. to "be nice" to him and began sobbing.  Following the sobbing, M.S.                                                                           
observed the first indication of transition between alters.  Mr. Greene's                                                                             
affect changed and he reportedly straightened up "like a man."  Here,                                                                                 
arguably, begins the tug-of-war between Sam and Tyrone.  At this point as                                                                             
well, though, the acts of indecent liberties for the most part ceased.                                                                                
Thus, a jury could reasonably conclude that Mr. Greene was insane during                                                                              
the period relating to the indecent liberties charge, but reach a different                                                                           
result for the subsequent time. 

As to this subsequent time, when Sam was arguably co-conscious and                                                                                    
struggling for control, and Mr. Greene took actions relating to the                                                                                   
kidnapping charge,31 the offer of proof does not support an insanity                                                                                  
defense.  During this second phase, Mr. Greene made two attempts to release                                                                           
M.S., but eventually tied and gagged her before leaving the apartment.  He                                                                            
also made two telephone calls, indicating that he was lucid and coherent.                                                                             
Thus, the testimony offers no indication that, as a result of DID,                                                                                    
Mr. Greene was unable to perceive the nature and wrongfulness of his acts                                                                             
of tying and gagging M.S.  As discussed below, however, the evidence might                                                                            
demonstrate a diminished capacity negating the intent element of first                                                                                
degree kidnapping.

Diminished Capacity                                                                                                                                   
Washington courts recognize the defense of diminished capacity.  E.g.,                                                                                
State v. Ferrick, 81 Wn.2d 942, 506 P.2d 860, cert. denied sub nom., Gustav                                                                           
v. Washington, 414 U.S. 1094, 94 S. Ct. 726, 38 L. Ed. 2d 552 (1973); State                                                                           
v. Edmon, 28 Wn. App. 98, 621 P.2d 1310, review denied, 95 Wn.2d 1019                                                                                 
(1981); State v. Martin, 14 Wn. App. 74, 538 P.2d 873 (1975), review                                                                                  
denied, 86 Wn.2d 1009 (1976).  When a specific intent or knowledge is an                                                                              
element of the crime charged, a defendant is entitled to present evidence                                                                             
showing an inability to form that intent or knowledge at the time of the                                                                              
crime.  Edmon, 28 Wn. App. at 102-04; Martin, 14 Wn. App. at 75.                                                                                      
Acceptable bases for arguing a lack of capacity include voluntary                                                                                     
intoxication, RCW 9A.16.090, and mental disorder, Ferrick, 81 Wn.2d at 944,                                                                           
but not emotion (e.g., jealousy, fear, anger, hatred, etc.), Edmon, 28 Wn.                                                                            
App. at 103.  The State bears the burden of proving beyond a reasonable                                                                               
doubt that the defendant had the requisite mental state for the crime                                                                                 
charged.  State v. James, 47 Wn. App. 605, 609, 736 P.2d 700 (1987).                                                                                  

In Edmon, this Court outlined nine prerequisites that must be satisfied                                                                               
before an expert may testify in opinion form concerning a defendant's                                                                                 
ability to form the mens rea for an offense.  These factors overlap to some                                                                           
extent with the Frye and ER 702 requirements, but also include specific                                                                               
standards of proof.  For example, the expert's testimony must be based on                                                                             
substantial supporting evidence in the record and not entirely on uncertain                                                                           
estimates or speculation.  Edmon, 28 Wn. App. at 102-03.  In addition, the                                                                            
expert cannot infer the lack of capacity from the existence of a mental                                                                               
disorder, but rather must explain how the disorder had such effect.  Id. at                                                                           
103.  Finally, the expert must be able to testify to an opinion with                                                                                  
reasonable medical certainty based on a personal examination of the                                                                                   
defendant.  Id. at 102.

Here, the State contends that Mr. Greene failed to make an adequate offer                                                                             
of proof with regard to a diminished capacity defense.  We disagree.  In                                                                              
response to the State's motion in limine to exclude any mention of DID,                                                                               
defense counsel represented that Dr. Olsen was prepared to testify and that                                                                           
his testimony would satisfy the Edmon factors.  Given that the trial                                                                                  
court's decision to prohibit any testimony concerning DID was based on its                                                                            
Frye analysis, and not on the Edmon factors, we believe defense counsel                                                                               
sufficiently preserved the issue for appeal.

Both of the crimes charged against Mr. Greene involve either a specific                                                                               
intent or knowledge.  See RCW 9A.44.100(1)(a) ("A person is guilty of                                                                                 
indecent liberties when he knowingly causes another person who is not his                                                                             
spouse to have sexual contact with him or another . . . [b]y forcible                                                                                 
compulsion[.]"); RCW 9A.40.020(1)(b) ("A person is guilty of kidnapping in                                                                            
the first degree if he intentionally abducts another person with intent                                                                               
. . . to facilitate commission of any felony or flight thereafter[.]").                                                                               
The evidence that, as a result of DID, Mr. Greene was either in a child-                                                                              
like state or struggling to cease the criminal behavior was relevant to the                                                                           
issue whether Mr. Greene had the capacity at the time of the crime to form                                                                            
the required mens rea.  Mr. Greene should have had an opportunity to                                                                                  
present this evidence to the jurors,32 along with expert testimony to assist                                                                          
them, assuming such testimony satisfied the Edmon factors.33  To hold                                                                                 
otherwise would be manifestly unfair in light of the legislative                                                                                      
pronouncement that even voluntary intoxication may be considered in                                                                                   
assessing the defendant's mental state at the time of the crime.  Compare                                                                             
State v. Moore, 113 N.J. 239, 286-89, 550 A.2d 117, 140-41 (1988)                                                                                     
(reversing murder conviction of defendant with DID due to trial court's                                                                               
failure to instruct on diminished capacity).

			Reliability Inquiry Under ER 702                                                                                                                      
Having concluded that, in this case, evidence of DID bears relevance to the                                                                           
insanity defense (as to one charge) and the diminished capacity defense (as                                                                           
to both charges), the question remains whether concerns over iatrogenic                                                                               
formation, malingering, and misdiagnosis of the disorder render expert                                                                                
testimony regarding DID unreliable and therefore unhelpful to the jury.                                                                               
These concerns are case specific -- critics of DID do not appear to contend                                                                           
that every case of DID is iatrogenic, faked, or misdiagnosed.  Cf. Gleaves,                                                                           
supra note 8, at 42 ("[N]o disorder can be entirely iatrogenic or entirely                                                                            
noniatrogenic.").  Thus, the problem presented is distinguishing between an                                                                           
"authentic" case of DID and a fraudulent one.

In this regard, one area of debate concerning DID is whether the disorder                                                                             
can be or is iatrogenically induced through hypnosis or other suggestion.                                                                             
Critics of DID observe that individuals with DID are generally more                                                                                   
susceptible to hypnosis and that alters are usually "discovered" during                                                                               
therapy.  See Piper, supra note 18, at 25-27.  In light of these                                                                                      
observations, critics suggest that DID might be the result of ideas                                                                                   
regarding multiplicity planted in the minds of patients by clinicians using                                                                           
hypnosis or some other means of suggestion.  Id.  Proponents of DID respond                                                                           
that, although certain laboratory studies have demonstrated that phenomena                                                                            
superficially similar to DID can be elicited in control subjects through                                                                              
hypnosis, none of the studies supports an inference that DID can be                                                                                   
iatrogenically created because the participants in those studies did not                                                                              
manifest any of the established features of DID, e.g., episodes of time                                                                               
loss, hearing voices, etc.  Gleaves, supra note 8, at 47.  In addition, in                                                                            
two studies on the subject, only a small percentage (27 and 4 percent,                                                                                
respectively) of the DID patients had been hypnotized before being                                                                                    
diagnosed.  Id. at 46 (discussing studies by Ross, Norton, and Wozney                                                                                 
(1989) (n=214) and Coons, Bowman, and Milstein (1988) (n=50)).

While the etiology of DID (posttraumatic or iatrogenic) might be germane to                                                                           
the choice of treatment methods,34 and perhaps to medical ethics, it does                                                                             
not appear particularly relevant to the assessment of criminal                                                                                        
responsibility.  If the defendant was suffering from DID at the time of the                                                                           
crime, and the disorder affected the defendant's sanity or capacity to form                                                                           
the requisite mens rea, the genesis of the disorder is not of legal                                                                                   
consequence.  For purposes of the ER 702 inquiry, a court need only                                                                                   
recognize the possibility that DID might be hypnotically induced and factor                                                                           
that prospect into the analysis in appropriate circumstances.  For example,                                                                           
if a defendant did not previously manifest symptoms of DID, but during                                                                                
hypnosis in the course of examination by the defense's expert witness,                                                                                
alternate identities were "discovered," the court should consider the                                                                                 
probability of faking by the defendant or improper suggestion by the                                                                                  
expert, both of which would undermine an assessment that the defendant                                                                                
suffered from DID at the time of the crime. 

Critics of DID appear to base their suspicion in part on the increased                                                                                
number of diagnosed cases over the past two decades.35  This rise in                                                                                  
reported cases fuels concerns that DID patients are malingering36 or faking                                                                           
the disorder either to draw attention to themselves37 or to escape criminal                                                                           
responsibility.  See Piper, supra note 18, at 22 (discussing the case of                                                                              
Kenneth Bianchi, in which seven psychiatrists and psychologists could not                                                                             
agree whether the defendant was malingering).  Dr. Piper suggests that no                                                                             
means exists of reliably distinguishing between veridical and malingered                                                                              
cases of DID.  Id. at 19-22.  A related criticism is that the DSM's                                                                                   
diagnostic criteria for DID are too vague.  Id. at 11-19.  The State                                                                                  
contends that evidence of DID is therefore inadmissible per se. 

We reject the State's all-or-nothing approach.  Concerns over malingering                                                                             
and misdiagnosis are not unique to DID or to criminal defenses, and we                                                                                
believe the State's proposition is likely to create more problems than it                                                                             
solves.  Instead, we adopt a case-by-case method that examines certain                                                                                
indicia of reliability in assessing the admissibility of expert testimony                                                                             
concerning DID.  In so holding, we observe that the scientific literature                                                                             
reveals at least five diagnostic tools for reliably measuring dissociative                                                                            

	(i)  Dissociative Disorders Interview Schedule (DDIS);38

	(ii) Dissociative Experiences Scale (DES);39

	(iii)     Millon Clinical Multiaxial Inventory-II (Millon-II);40

	(iv) Questionnaire of Experiences of Dissociation (QED);41 and 

	(v)  Structured Clinical Interview for DSM-IV Dissociative Disorders (SCID-                                                                           

In addition, several independent studies have documented a "relatively                                                                                
clear set of clinical DID features"43 that can be "measured by objective                                                                              
means."  Gleaves, supra note 8, at 43. 

Based on the foregoing review of the scientific literature, the following                                                                             
factors appear particularly pertinent in assessing whether a defendant is                                                                             
malingering or faking DID:  (i) recent fabrication of the disorder;                                                                                   
(ii) disagreement among mental health professionals who acknowledge the                                                                               
disorder;44 (iii) borderline scores on two or more diagnostic tools; and                                                                              
(iv) no prior history of childhood abuse or trauma.  This list of factors                                                                             
might not be exhaustive, and none of the factors alone appears dispositive.                                                                           
In conjunction, however, the factors would seem to indicate a high                                                                                    
probability that the defendant is malingering or faking the disorder to                                                                               
escape criminal liability.  In that event, evidence of DID would not assist                                                                           
the trier of fact and the trial court could exercise its discretion to                                                                                
exclude expert testimony on DID pursuant to ER 702.  Otherwise, provided                                                                              
that DID satisfies the relevance analysis with respect to the defense at                                                                              
issue, the defendant should be allowed to present evidence of DID to the                                                                              
jury, with the State having an opportunity to offer contradictory                                                                                     
testimony.  This test thus balances an accused's right to present a defense                                                                           
against the State's interest in discouraging false assertions of mental                                                                               

Applying the factors to this case, Mr. Greene does not present an obvious                                                                             
example of malingering, and the case should be remanded for a new trial.                                                                              
Mr. Greene was diagnosed and treated by the State for DID over three years                                                                            
before the offense at issue.  His scores on the DDIS, DES, and SCID-D are                                                                             
(according to M.S.) consistent with DID.  In addition, Mr. Greene reported                                                                            
an abuse history before he had an incentive to malinger, and the record                                                                               
indicates some corroboration of that history.  Finally, just prior to this                                                                            
offense, Mr. Greene manifested behaviors consistent with DID, e.g.,                                                                                   
referring to himself as "we,"45 complaining of a severe headache,46 and                                                                               
suffering from psychosocial stress. 

To summarize, DID is a generally recognized mental disorder and the trial                                                                             
court erred in concluding to the contrary.  Although we hold as a matter of                                                                           
law that DID satisfies the Frye standard, we decline to adopt a per se rule                                                                           
with regard to the admissibility of expert testimony concerning the                                                                                   
disorder.  When faced with a challenge under ER 702, a trial court must                                                                               
first determine whether, given the facts of the case, the symptoms of DID                                                                             
are relevant to the particular defense or other legal concept at issue.  In                                                                           
this context, "relevant" has the meaning ascribed in ER 401.  Given the                                                                               
nature of the disorder, the trial court may, if appropriate, examine the                                                                              
relevance of DID with respect to different time periods or separate                                                                                   
offenses.  Cf. Denny-Shaffer, 2 F.3d at 1018-22 (distinguishing between the                                                                           
period of initial abduction and the subsequent continuing actions of                                                                                  
kidnapping).  In addition, the trial court may consider the state of mind                                                                             
of whichever alters the circumstances dictate, i.e., the emergent alter if                                                                            
no other alters are co-conscious, all co-conscious alters, or other                                                                                   
appropriate combination.  If the trial court determines that evidence of                                                                              
DID is relevant, the trial court may nevertheless exclude the evidence if                                                                             
the factors indicating a probability of malingering or faking are present.

We conclude, in this case, the disorder is relevant to the defense of                                                                                 
insanity on the indecent liberties charge and to the defense of diminished                                                                            
capacity on both charges.  In addition, we find that Mr. Greene does not                                                                              
exhibit signs of obvious malingering.  We therefore remand for a new trial.
On remand, Mr. Greene must satisfy the Edmon factors before he may introduce 
expert testimony that he lacked the capacity to form the requisite mental state 
for the crimes charged.  Provided he does so, Mr. Greene should be provided an
opportunity to present both defenses to a jury. 

In light of our disposition, we need not reach the issue whether the trial 
court erred in admitting the testimony of, and letters written by Mr. Greene 
to, a prior victim.  Likewise, we need not address Mr. Greene's pro se arguments
concerning the constitutionality of the Persistent Offender Accountability Act.                                                                                                                          

Reversed and remanded for further proceedings consistent with this opinion.                                                                           
                                                            WE CONCUR:                                                                                

FOOTNOTES 1 Frank W. Putnam et al., The Clinical Phenomenology of Multiple Personality Disorder: Review of 100 Recent Cases, 47 J. Clinical Psychiatry 285, 288, 292 (1986) [hereinafter "Putnam et al."]. 2 George B. Greaves, Multiple Personality 165 Years After Mary Reynolds, 168 J. Nervous & Mental Disease 577, 581 (1980) [hereinafter "Greaves"]. 3 Arnold M. Ludwig et al., The Objective Study of a Multiple Personality or, Are Four Heads Better Than One?, 26 Archives Gen. Psychiatry 298, 300 (1972) [hereinafter "Ludwig et al."]. 4 Id. 5 Id.; compare DSM-IV at 484 ("Alternate identities are experienced as taking control in sequence, one at the expense of the other, and may deny knowledge of one another, be critical of one another, or appear to be in open conflict."). 6 Greaves, supra note 2, at 582; see also DSM-IV at 484 ("Individuals with this disorder experience frequent gaps in memory for personal history, both remote and recent. The amnesia is often asymmetrical. The more passive identities tend to have more constricted memories, whereas the more hostile, controlling, or protector' identities have more complete memories."). 7 Ludwig et al., supra note 3, at 300, 308. 8 David H. Gleaves, The Sociocognitive Model of Dissociative Identity Disorder: A Reexamination of the Evidence, 120 Psychol. Bull. 42, 52 (1996) [hereinafter "Gleaves"]; Colin A. Ross et al., Abuse Histories in 102 Cases of Multiple Personality Disorder, 36 Can. J. Psychiatry 97, 100 (1991); see DSM-IV at 485. 9 Gleaves, supra note 8, at 52. 10 Id. (citing two studies in which 81 percent and 79 percent, respectively, of patients with DID were also diagnosed with PTSD); DSM-IV at 424-29 (diagnostic criteria for PTSD). 11 Greaves, supra note 2, at 583. 12 Eve M. Bernstein & Frank W. Putnam, Development, Reliability, and Validity of a Dissociation Scale, 174 J. Nervous & Mental Disease 727, 728 (1986) [hereinafter "Bernstein & Putnam"]. 13 See Colin A. Ross, Twelve Cognitive Errors About Multiple Personality Disorder, 44 Am. J. Psychotherapy 348, 354 (1990) [hereinafter "Ross"] (DID arises from "the normal though self-destructive response of the human organism to extreme environmental insult."); Gleaves, supra note 8, at 42 ("According to [the posttraumatic] model, the dissociative response . . . is a creative survival strategy that helped the individual cope with the overwhelming trauma."); Greaves, supra note 2, at 583 ("[A]lter selves . . . arise as dissociative defenses against trauma . . . followed by repression of the trauma."), 587-91 (discussing the ego formation process and identifying psychic or physical trauma and extreme ambivalence as factors contributing to the development of DID). 14 Greaves, supra note 2, at 590. 15 Colin A. Ross et al., Multiple Personality Disorder: An Analysis of 236 Cases, 34 Can. J. Psychiatry 413, 416 (1989). 16 Putnam et al., supra note 1, at 287 (among 100 patients, the mean number of incorrect diagnoses was 3.6, with depression, neurotic disorder, personality disorder, and schizophrenia being the most commonly reported previous diagnoses); see also DSM-IV at 486. 17 See Webster's Third New Int'l Dictionary 1119 (1976) (defining "iatrogenic" as "induced by a physician - used chiefly of ailments induced in a patient by autosuggestion based on a physician's words or actions during examination"). Critics of DID contend that the disorder is created by clinicians through hypnosis or other suggestion. See Gleaves, supra note 8, at 42 (summarizing the "sociocognitive" or iatrogenic model of DID, and concluding that the model is not supported by research). 18 See, e.g., August Piper Jr., Multiple Personality Disorder and Criminal Responsibility: Critique of a Paper by Elyn Saks, J. Psychiatry & L., Spring 1994, at 7 [hereinafter "Piper"]. 19 Out of the presence of the jury, Everett police detective Jimmy Phillips confirmed that, during a conversation with Mr. Greene the morning after the incident, he was able to identify three specific alters: Tyrone, Sam, and Auto/Otto. The trial court ruled that any testimony referring to the names of, or switching between, alters was prohibited. On subsequent cross- examination, Detective Phillips testified that he observed Mr. Greene's degree of lucidity, demeanor, and vocabulary change over the course of their discussion; Mr. Greene would alternatively speak in street slang, in a mechanical mode, or in a weak and fearful manner. 20 The Washington Supreme Court has explicitly rejected the alternative test announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). State v. Copeland, 130 Wn.2d 244, 259-61, 922 P.2d 1304 (1996). The State nonetheless devoted a substantial portion of its direct examination of Dr. Gagliardi toward application of the Daubert test. This testimony does not appear relevant except to the extent it addresses the level of acceptance of DID. 21 American Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (3d rev. ed. 1987). 22 Sarah K. Fields, Multiple Personality Disorder and the Legal System, 46 Wash. U. J. Urb. & Contemp. L. 261, 288-89 (1994) ("When a Multiple is the perpetrator of a crime, the law should treat the body as a whole . . . . [F]or Multiple defendants, the plea of not guilty by reason of insanity should not be available if the basis of insanity is MPD."); compare Kirkland v. State, 166 Ga. App. 478, 480, 304 S.E.2d 561, 564 (1983) ("[W]e will not begin to parcel criminal accountability out among the various inhabitants of the mind."); State v. Grimsley, 3 Ohio App. 3d 265, 268, 444 N.E.2d 1071, 1075-76 (1982) ("There was only one person driving the car and only one person accused of drunken driving."). 23 Elyn R. Saks, Multiple Personality Disorder and Criminal Responsibility, 25 U.C. Davis L. Rev. 383, 459 (1992) ("[W]e should adopt a rebuttable presumption that multiples are not responsible for their crimes."). Professor Saks identifies three cases in which the presumption of nonresponsibility might be rebutted: (i) all alters know about and acquiesce in the crime; (ii) limited emergence of innocent alters during trial; and (iii) a "ringleader" alter and participatory alters who act as a group. Id. at 453-54. 24 United States v. Denny-Shaffer, 2 F.3d 999, 1008, 1013 (10th Cir. 1993) ("[D]efendant had shown by clear and convincing evidence that, as a result of a severe mental disease or defect, she was not guilty by reason of insanity since her dominant or host personality was neither aware of nor in control of the commission of the offense and thus was unable to appreciate the nature and quality or wrongfulness of the conduct which the alter or alters carried out."); compare State v. Rodrigues, 67 Haw. 70, 73, 679 P.2d 615, appeal dismissed, cert. denied, 469 U.S. 1078, 105 S. Ct. 580, 83 L. Ed. 2d 691 (1984) ("Since each personality may or may not be criminally responsible for its acts, each one must be examined under the . . . competency test."). 25 See Commonwealth v. Roman, 414 Mass. 235, 239-40, 606 N.E.2d 1333, 1336 (1993) (rejecting defendant's argument that the capacity of the host rather than the alter emergent at the time of the crime should be considered, stating the "general rule" requires jurors "to consider the mental state of the individual at the time of the crime"); compare Rodrigues, 67 Haw. at 72- 73, 679 P.2d at 618 ("The trend . . . is toward examining the sanity of each personality presented in an individual, or at least the personality which allegedly committed the offense."). 26 See Wheaton, 121 Wn.2d at 357-59 (criticizing the reasoning of Kirkland, Rodrigues, and Grimsley); accord Denny-Shaffer, 2 F.3d at 1017-18 (also finding Roman unpersuasive). 27 E.g., Rodrigues, 67 Haw. at 72, 679 P.2d at 617 ("[T]he State has the burden of proving a defendant's sanity beyond a reasonable doubt."); compare RCW 9A.12.010(2) (discussed infra). 28 E.g., Kirkland, 166 Ga. App. at 482, 304 S.E.2d at 565 (Georgia statute permits finding of "guilty but mentally ill"); see also Denny-Shaffer, 2 F.3d at 1014-15 (because "penal statutes are to be strictly construed against the government," court applied liberal construction to federal statute defining insanity defense); compare White, 60 Wn.2d at 590 (discussed infra). 29 A defendant acquitted of a felony by reason of insanity and found to be a substantial danger shall be hospitalized or confined in a less restrictive setting for a period not to exceed the maximum possible penal sentence for the offense charged. RCW 10.77.020(3); RCW 10.77.110(1); see RCW 10.77.040 (special verdict form). A criminally committed person may petition for conditional release or final discharge. RCW 10.77.150; RCW 10.77.200. On hearing of a petition for final discharge, the committed person bears the burden of proof by a preponderance of the evidence that he or she no longer presents a substantial danger to others or likelihood to recidivate. RCW 10.77.200(2). 30 An additional issue might arise on remand. The literature suggests that, through appropriate therapy, DID patients can acquire some ability to control shifts between alters. See Philip M. Coons, Treatment Progress in 20 Patients with Multiple Personality Disorder, 174 J. Nervous & Mental Disease 715, 718-19 (1986) (defining the therapeutic goal of integration and discussing the improvements typically observed during the middle phase of therapy). The record does not reflect the extent to which Mr. Greene was able at the time in question to control switching between alters while not in an intoxicated state. On remand, if the evidence shows that voluntary intoxication impaired his then-existing capacity to transition between alters, the trial court has discretion to limit the insanity defense and/or provide an appropriate instruction to the jury. 31 Although Mr. Greene's actions during the first phase of events also give rise to a kidnapping charge, if Mr. Greene were to establish insanity for that period, the defense would apply not only to the indecent liberties charge, but also to the earlier acts of kidnapping. 32 Here, the trial court's decision to exclude any mention of DID severely limited the victim's testimony, a fact about which she complained during direct examination by the State: "I feel like I am not being able to say an awful lot of things that need to be said." The effect of the trial court's ruling was to conceal from the jury testimony that was particularly relevant to the defendant's mental state at the time of the crime. See Lee v. Thompson, 452 F. Supp. 165, 169 (E.D. Tenn. 1977), aff'd, 577 F.2d 741 (6th Cir. 1978) ("[T]he words and acts of a defendant immediately before, during, and after the offense are the best evidence of his state of mind at the time of the acts charged."). 33 State v. Stumpf, 64 Wn. App. 522, 526, 827 P.2d 294 (1992) ("[W]hen a diminished capacity defense is asserted in a criminal action, expert testimony is required to establish the existence of the alleged mental disorder, as well as the requisite causal connection between the disorder and the diminished capacity."). 34 Compare Paul R. McHugh, Resolved: Multiple Personality Disorder Is an Individually and Socially Created Artifact - Affirmative, 34 J. Am Acad. Child & Adolescent Psychiatry 957 (1995) (proposing that DID be treated as a form of hysteria that will disappear if therapists refuse to talk to alters or otherwise give credence to the disorder); with Gleaves, supra note 8, at 49 (treatment based on the iatrogenic (or hysteria) model does not cause dissociative symptoms to subside, rather "patients simply stop trusting their therapist" and learn that discussing their symptoms with their therapist is not "safe"); and Ross, supra note 13, at 352 (benign neglect of DID does not reduce dissociative symptoms, whereas proper diagnosis and treatment based on the posttraumatic model results in "stable integration" within an average of two to four years). 35 See Gleaves, supra note 8, at 51 (offering five, noniatrogenic factors to explain the increase in reported cases: inclusion of MPD in the DSM-III (1980); increased awareness regarding child abuse; Vietnam war and subsequent interest in PTSD; developments in cognitive psychology; and reduced skepticism toward DID); compare 2RP 83 (Dr. Olsen also suggests that, with the recent development of pharmaceutical treatments for many psychiatric disorders, clinicians are able to diagnose DID when medication prescribed for other disorders is ineffective). 36 The DSM-IV defines "Malingering" as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs." DSM-IV at 683. Malingering differs from Factitious Disorder in that the motivation for symptom production in Malingering is external, whereas in Factitious Disorder, it is an intrapsychic need to maintain the sick role. Id. 37 But see Gleaves, supra note 8, at 45-46 (in response to proposition that DID represents a highly effective means of gaining attention, summarizing studies indicating that patients with DID often receive especially hostile treatment and concluding that feigning a different disorder would probably be more rewarding). 38 Colin A. Ross et al., Structured Interview Data on 102 Cases of Multiple Personality Disorder From Four Centers, 147 Am. J. Psychiatry 596, 600 (1990) ("The proposed DSM-IV criteria for the disorder . . . appear to yield very few, if any, false positive diagnoses in clinical subjects. One advantage of using the Dissociative Disorders Interview Schedule in clinical assessments is that a malingerer would have to be aware of the entire multiple personality disorder profile to produce a convincing picture of the disorder on that structured interview."). 39 Bernstein & Putnam, supra note 12, at 731-32 ("[T]he DES has good split- half reliability and test-retest reliability. It is internally consistent and produces scores that are stable over time. . . . The DES is a reliable and valid instrument that is able to distinguish between subjects with a dissociative disorder and those without."); Eve Bernstein Carlson et al., Validity of the Dissociative Experiences Scale in Screening for Multiple Personality Disorder: A Multicenter Study, 150 Am. J. Psychiatry 1030, 1035- 36 (1993) (The DES performs well as a screening tool for DID). But see Gilbertson et al., Susceptibility of Common Self-Report Measures of Dissociation to Malingering, 5 Dissociation 216 (1992) [hereinafter "Gilbertson et al."] (reporting that a study involving nursing students who were instructed to fake their answers indicated the DES and the QED are highly susceptible to malingering). 40 Joan W. Ellason & Colin A. Ross, Millon Clinical Multiaxial Inventory-II Follow-Up of Patients with Dissociative Identity Disorder, 78 Psychol. Rep. 707, 715 (1996) ("The data to date support the conclusion that Dissociative Identity Disorder can be successfully treated and that the Millon-II can be used as a measure of outcome."). The Millon-II was used in this study to compare "integrated" and "nonintegrated" patients treated for DID. Id. at 708. 41 Gleaves, supra note 8, at 46 (In one study, the QED was able to differentiate patients with DID from those with eating disorders and from controls with 90 percent and 92 percent accuracy, respectively. In another study, the QED discriminated between patients with DID and controls with 100 percent accuracy, based solely on a cutoff score.); Kevin C. Riley, Brief Communication -- Measurement of Dissociation, 176 J. Nervous & Mental Disease 449 (1988) ("The QED demonstrates good reliability and validity and is offered as an alternate assessment technique for the study of dissociation."). But see Gilbertson et al., supra note 39. 42 Gleaves, supra note 8, at 46 ("The state-of-the-art [as of 1996] assessment of dissociative disorders is through the use of structured interviews, such as the Structured Clinical Interview for DSM-IV Dissociative Disorders. . . . The SCID-D is consistent in format with other modules of the SCID and systematically guides the evaluator through the assessment of five domains of dissociative symptoms: amnesia, depersonalization, derealization, identity confusion, and identity alteration. Studies of the SCID-D have found it to lead to highly reliable diagnoses of DID."); Marlene Steinberg et al., Distinguishing Between Multiple Personality Disorder (Dissociative Identity Disorder) and Schizophrenia Using the Structured Clinical Interview for DSM-IV Dissociative Disorders, 182 J. Nervous & Mental Disease 495, 501 (1994) ("This study indicates that the SCID-D has the capacity to discriminate successfully between individuals with diagnoses of schizophrenia and schizoaffective disorder and those with diagnoses of MPD."). 43 The clinical DID features include "dissociative symptoms such as amnesia (including ongoing amnesia and lack of autobiographical memory for childhood), chronic depersonalization and derealization, Schneiderian symptoms (hearing voices and passive influence experiences), and identity alteration." Gleaves, supra note 8, at 43. Identity alteration includes "behaving like a different person," "disremembered behaviors, finding possessions for which one cannot account, hearing voices and carrying on internal or written dialogues between dissociated ego states, spontaneous age regressions to traumatic events, and referring to oneself as 'we.'" Id. at 43 n.2. 44 An opinion of malingering by a mental health expert who does not believe in DID bears little weight in this analysis; such expert would likely conclude that everyone is malingering. 45 See supra note 43. 46 Several clinicians have reported that the precursor to transition between alters is a severe headache. Greaves, supra note 2, at 585. For example, Jonah initially sought psychiatric help for severe headaches after which he would later regain awareness but be unable to remember events during the intervening period. Ludwig et al., supra note 3, at 299. Likewise, Eve White (The Three Faces of Eve) originally sought treatment for severe and blinding headaches, and Sybil suffered from "headaches so bad that following such an attack, [she] had to go to sleep for several hours." Greaves, supra note 2, at 585; see also Coons et al., Multiple Personality Disorder - A Clinical Investigation of 50 Cases, 176 J. Nervous & Mental Disease 519, 524 (1988) ("The present study also found a high incidence of headaches in MPD . . . that occurred commonly either before or during the transition from one personality to another.").