Presnell v. State ( 1978 )

Hall, Justice,

concurring specially.

I concur in the judgment, but I have grave doubts as to the rulings in Divisions 6,7 and 8. Whether the court may order a psychiatric examination of the accused over his objection concerning his mental capacity at the time of the offense¹ is a difficult Fifth Amendment issue which in my opinion cannot be resolved by analogizing such an examination to taking fingernail scrapings, blood samples, and voice exemplars.

None of the procedures approved by the United States Supreme Court over Fifth Amendment objections involved an examination of the accused’s thought processes. The closest that court has gotten to expressing a view on the issue in this case was the dicta in Schmerber v. California, 384 U. S. 757, 764 (1966) dealing with polygraph examinations: "To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.” (Emphasis supplied.)

To the extent we can reason by analogy to existing case law from the nation’s highest court, the reasoning supports appellant. I cannot agree with the majority that a psychiatric examination is more analogous to voice identification than to polygraph examinations. Voice identification reveals nothing of the accused’s thought processes, and none of his memories. Moreover, there is nothing private about the sound of a man’s voice. But a psychiatric examination requires the accused to answer questions about his thoughts at the time of the event — he must reveal at least his memories of what occurred in his mind. This type of interrogation is far more analogous to a polygraph examination than it is to voice identification.

But this type of reasoning is not adequate to the task at hand. Rather we must look at the policies underlying the Fifth Amendment and determine if they are infringed by compelling the accused to submit to a psychiatric examination. The key policy is "to respect the inviolability of the human personality.” 384 U. S. at 762. To force an individual to reveal his thoughts at the time of the offense clearly intrudes on the "inviolability of the human personality.”

Turning to the clearest test for the application of the privilege, i.e. whether the evidence is testimonial or communicative, I again conclude that on balance the arguments favor appellant. What was compelled from appellant were (presumably) statements of his thoughts at the time of the crime. These statements were somewhat like a confession, which is a statement regarding his actions at that time. While it is true that the statements were not used directly in court, they were used indirectly as the basis of testimony which tended to negate the defense of insanity. The indirect use of unconstitutionally compelled testimonial evidence is barred as clearly as the direct use of the statements. But, like reasoning by analogy, and reasoning from underlying policies, the application of this test is also not dispositive. 384 U. S. at 756.

Case law from lower courts, primarily the United States Courts of Appeals, is split on whether the accused can be compelled to submit to a psychiatric examination. Some cases approve only an order which requires the accused to either submit or be barred from presenting his own experts on this issue. See, e.g., Karstetter v. Cardwell, 526 F2d 1144 (9th Cir., 1975).² Other cases approve of unconditional orders to submit to examinations where the defense of insanity is raised by the defendant. See, e.g., United States v. Cohen, 530 F2d 43, 47-48 (5th Cir., 1976). But at least one circuit has disapproved of compulsory examinations, and would bar testimony based on them even if limited to the issue of sanity at the time of the offense. United States v. Alvarez, 519 F2d 1036, 1042 (3rd Cir., 1975).

In light of the presumption of sanity, and the reluctance of juries to acquit by reason of insanity, I can see no compelling need of the state to have the accused examined as to his sanity at the time of the offense where he does not intend to use expert testimony of his own on this issue. If the accused makes a timely objection, I conclude that he has a Fifth Amendment right to refuse to submit to a psychiatric examination.

In this case the court concluded that appellant wanted a psychiatric examination, and was planning to seek one conducted by his own experts. Under these circumstances it was permissible to order appellant to submit to an examination by the court’s expert as well. In order to exclude the testimony of that expert at trial, appellant would have had to indicate his intention not to use any expert testimony on this issue. This he did not do; therefore I concur in the judgment.

1 It is important to distinguish between mental capacity at the time of the offense from capacity at the time of trial. Only the former may be determinative of guilt or innocence.

2 This rule prevents the accused from using his privilege to gain an unfair advantage over the prosecution. If the experts for the accused were the only ones to examine him, the prosecution could not present credible expert testimony. Limiting expert testimony to defense witnesses would deny the prosecution a fair chance to prove the culpability of the accused.