United States v. Harrod , 1980 D.C. App. LEXIS 248 ( 1980 )

NEBEKER, Associate Judge:

This case came before the court on appel-lee’s motion to dismiss the appeal, on behalf of a complaining witness, of a trial judge’s order compelling the witness to undergo a psychiatric examination. Appellee contends this court is without jurisdiction to entertain the appeal because the order is not final, and therefore, not reviewable. D.C. Code 1973, § 11-721(a). We disagree, and hold that the order to undergo a psychiatric examination is appealable. Accordingly, we deny the motion.¹

I

The grand jury indicted appellee, George R. Harrod, the District of Columbia Director of Personnel, for one count of simple assault. The complainant, a clerk-typist employed by the District of Columbia Department of Personnel, claims she was severely beaten by Mr. Harrod, her supervisor, in his office during business hours on August 30,1978. Complainant, who was six months pregnant at the time of the alleged attack, was subsequently hospitalized for observation of possible fetal damage.

„ Appellee, by motion, requested that the trial court order complainant to undergo a psychiatric examination. Counsel alleged in the motion the following: (1) complainant had a prior history of mental and emotional illness; (2). complainant stated to the doctor attending her after the alleged assault that she had a complex that men wanted to beat her up; (3) on four prior occasions during the past two years, complainant had alleged various men had struck her, only to subsequently retract these allegations; and (4) no visible injuries were seen on complainant’s body after she left the office where the alleged attack occurred.

On August 17, 1979, the court issued a written order directing that complainant be examined by a psychiatrist. The government’s motion for reconsideration was denied in a memorandum opinion, and consequently the government noted this appeal of the August 17 order.

II

With certain exceptions not applicable here, this court’s jurisdiction is limited to final orders and judgments. D.C.Code 1973, § 11-721(a). Pinal orders for purposes of the statute are not limited to final judgments which terminate an action. Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Frost v. Peoples Drug Store, Inc., D.C.App., 327 A.2d 810 (1974).

Prior decisions respecting finality determinations have provided us with a flexible rule, counseling a “practical rather than a technical construction,” in identifying those orders and judgments which are final. Cohen v. Benefical Industrial Loan Corporation, supra, 337 U.S. at 546, 69 S.Ct. at 1225; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Wise v. Murphy, D.C.App., 275 A.2d 205 (1971).

“The considerations that determine finality are not abstractions but have reference to very real interest,” namely those of the parties involved, and those of the judicial system itself. Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 69, 68 S.Ct. 972, 977, 92 L.Ed. 1212 (1948); see also District of Columbia v. Tschudin, D.C.App., 390 A.2d 986, 988 (1978). Therefore, in determining whether an order requiring a complainant to undergo a psychiatric examination is final, it is necessary to analyze the competing interests.

It is well settled in this jurisdiction that it is within the discretion of the trial judge to order a psychiatric examination of a witness for the purpose of determining competency to testify) or to aid in the jury’s assessment of a witness’ credibility. Ledbetter v. United States, D.C.App., 350 A.2d 379 (1976); United States v. Butler, 156 U.S.App.D.C. 356, 481 F.2d 531 (1973). In making the decision, the trial judge must weigh the potential evidentiary advantage against the invasion of privacy caused by such examinations. United States v. Benn, 155 U.S.App.D.C. 180, 184, 476 F.2d 1127, 1131 (1972). These considerations are especially salient in cases involv ing sexually motivated or sexually related offenses.

In United States v. Benn, supra, a case involving the failure of a trial court to order the psychiatric examination of a mentally retarded rape prosecutrix, the court had occasion to comment on the countervailing considerations against ordering a psychiatric examination.

For example, a psychiatric examination may seriously impinge on a witness’ right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all. [Id. at 184, 476 F.2d at 1131.].

Although the court in Benn was concerned with a sex offense, the factors set forth above warrant attention regardless of the nature of the underlying charge. In examining the relevant considerations, we hold that the order compelling the witness to undergo a psychiatric examination possesses sufficient attributes of finality to be appealable pursuant to D.C.Code 1973, § 11—721(a). Though the appeal is interlocutory to the issue of appellee’s criminal liability,² the challenged order is final in all respects insofar as it affects the privacy right of the witness. “[T]his order . will not be merged in final judgment. When that time comes, it will be too late-effectively to review the present order . .” Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69 S.Ct. at 1225.

The court is unpersuaded by the argument that complainant may obtain review only by disobeying the examination order and appealing from a subsequent adjudication of contempt.³ This witness is faced with the intensely personal and highly intrusive experience of a psychiatric examination and should not additionally be required to expose herself to the risk of punishment before obtaining a determination of the claimed right. See Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965). The order she faces is hardly akin to a mere subpoena or discovery order. While the witness may be presumed competent (cf. Davis v. United States, 160 U.S. 469, 486-88, 16 S.Ct. 353, 357-58, 40 L.Ed. 499 (1895) (presumption of sanity)) there must be reason to question her mental competency to justify the examination order. Assuming that a question of competence is raised — as we must at this early stage of the appeal — it is less than realistic to expect this witness to make the judgment whether to capitulate or face a contempt citation.

In the words of the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., supra, “We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it.” Id., 337 U.S. at 546-47, 69 S.Ct. at 1226.

Motion denied.

1 . We need not reach the merits of the appeal in this opinion.

2 . See DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962).

3 . See Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) and In re Cys, D.C. App., 362 A.2d 726 (1976), both involving lawyers who were forced to the contempt wall to test the challenged orders.