Wilkes v. United States

FARRELL, Associate Judge,

dissenting:

The government’s position in this case, broadly read, is that when the prosecution has proven all of the elements of the charge beyond a reasonable doubt and the defendant then attempts to disprove his sanity at the time of the offense through psychiatric witnesses, the exclusionary rule should not bar the prosecutor from testing the foundation of the witnesses’ conclusions by asking them to consider voluntary statements taken from the defendant shortly after the offense, though in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Moreover, rebuttal psychiatric witnesses for the government, in forming their opinion of the defendant’s sanity, and even though permitted to examine the defendant pretrial, see Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), should not be denied access to potentially some of the most probative evidence bearing on his mental condition in the form of statements, otherwise excludable, which he made to the police more or less contemporaneously with the crime. A defendant guilty but insane (conceptually no different than one not guilty by reason of insanity) may not be punished criminally, but the intensely medical question of whether he is accountable volitionally for his acts — despite his factual guilt — should be decided upon all of the evidence available, including statements obtained contrary to Miranda’s prophylactic rules.

This is by no means a frivolous position.¹ But, as the government concedes, a broad argument that Miranda’s exclusionary rule should not apply to the insanity defense {i.e., beyond the “guilt” phase of trial) would have to overcome Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1980). Moreover, immunizing this class of cases from suppression for Miranda violations undoubtedly lowers the incentive to police to respect an arrestee’s constitutional right to silence when, for example, the bizarre nature of the criminal conduct suggests the strong likelihood of an insanity defense. E.g., United States v. Hinckley, 217 U.S.App.D.C. 262, 672 F.2d 115 (1982). The government therefore advances a narrower argument — but still one drawing from the peculiarity of the insanity defense — that under the Walder, Harris, Hass, and Havens line of cases, discussed by the majority, a defendant should not be able to place his own version of his mental state at the time of the offense before the jury through the testimony of defense psychiatric witnesses without the government being able to confront those witnesses with other statements he has made that may present a very different picture, and even affect their opinion. It is this argument, as I understand it, that the majority accepts.

However one might judge this argument if we were writing on a clean slate, I believe it is foreclosed by James v. Illinois, 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990). James, of course, was not an “insanity” case. Nonetheless, I do not think James can fairly be read as rejecting only a categorical rule that the impeachment exception of Walder and its progeny applies alike to defense witnesses and testifying defendants — but leaving open case-by-case application of the exception to defense witnesses (other than the defendant) in particular contexts, such as the insanity defense.

In James, the Illinois Supreme Court had concluded that,

in order to deter the defendant from engaging in perjury “by proxy,” the impeachment exception to the exclusionary rule ought to be expanded to allow the State to introduce illegally obtained evidence to impeach the testimony of defense witnesses other than the defendant himself.

James, 493 U.S. at 311, 110 S.Ct. at 651 (emphasis added). The United States Supreme Court narrowly (5-4) rejected this conclusion. It is true that, at the beginning of its opinion, the Court summarized the holding of the Illinois court as “ex-tendpng the impeachment] exception to permit the prosecution to impeach the testimony of all defense witnesses with illegally obtained evidence.” Id. at 309, 110 S.Ct. at 650 (emphasis by Supreme Court). But what the Court meant by “all” is made clear by the rest of the opinion, beginning with the summary of the state court’s conclusion quoted above: “all defense witnesses” means “witnesses other than the defendant himself.” The Court later summed up the Illinois decision again as holding “that our balancing approach in Walder and its progeny justifies expanding the scope of the impeachment exception to permit prosecutors to use illegally obtained evidence to impeach the credibility of defense witnesses.” Id. at 313, 110 S.Ct. at 652 (emphasis added). The Court replied: “We disagree.” It went on to explain why “the truth-seeking rationale supporting the impeachment of defendants in Walder and its progeny does not apply to other witnesses with equal force.” Id. at 317, 110 S.Ct. at 654 (emphasis added). Moreover, in discussing the purpose of the exclusionary rule to deter police misconduct, the Court compared the situation addressed by Harris — where “[l]aw enforcement officers will think it unlikely that the defendant will first decide to testify at trial and will also open the door inadvertently to admission of any illegally obtained evidence”— with the proposed expansion of “the impeachment exception to all defense witnesses,” id. at 318, 110 S.Ct. at 654 (latter emphasis by Court); the latter would “vastly increase the number of occasions on which such evidence could be used,” since, for example, “[djefense witnesses easily outnumber testifying defendants.... ” Id. The Court concluded that “[o]ur previous recognition of an impeachment exception limited to the testimony of defendants reflects a careful weighing of the competing values.” Id. at 320, 110 S.Ct. at 655 (emphasis added). The Court thus “adhere[d] to the line drawn in our previous cases” rather than “expanding the exception to encompass the testimony of all defense witnesses.” Id. The four dissenting Justices, unsurprisingly, saw the majority as “adopting] a sweeping rule that the testimony of witnesses other than the defendant may never be rebutted with excludable evidence.” Id. at 324, 110 S.Ct. at 657 (Kennedy, J., dissenting).

If, as the majority concludes here, the Supreme Court in James was merely rejecting the notion “that ‘all defense witnesses’ can be treated as a homogeneous group for the purpose of determining the scope of the impeachment exception,” ante at 887, one might have expected it — before reversing the judgment of the Illinois Supreme Court — to explain why impeachment of the particular defense witness in James, or impeachment of that particular sub-class of witnesses, was improper; yet the Court’s legal discussion is all but silent about the particular impeachment of the defense witness in that case. Similarly, if the Court were only rejecting “an overly broad principle” announced by the Illinois court “rather than establishing one of its own,” ante at 887, one might have expected it to make clear that on remand the Illinois court was free to engage in a more focused or particularized balancing and conceivably still hold that the impeachment of the defense witness in that case was proper. Instead the Court, succinctly, held “that the Illinois Supreme Court erred in affirming James’ convictions despite the prosecutor’s use of illegally obtained statements to impeach a defense witness’ testimony.” 493 U.S. at 320, 110 S.Ct. at 655. There is no suggestion that on the ordered remand “for further proceedings not inconsistent with this opinion,” id., the state court was free to uphold the challenged impeachment if it could fairly place the witness in a narrower category than “all defense witnesses.”

In short, I do not believe the Supreme Court has left it open to us “to strike a balance between the truth-seeking function. of a trial and the deterrent function of the exclusionary rule,” ante at 889, each time the prosecution desires to impeach a defense witness (other than the defendant) with illegally obtained evidence.² Were we free to conduct that balancing; I might agree with the majority that the deterrent effect of a perjury charge — stressed in James — has little application to “a defendant who knows that his untruths will simply be relied upon and repeated to the jury on his behalf by his psychiatrist.” Ante at 890.³ In other respects too impeachment of a psychiatric witness may present a special case. But I believe James forecloses this sort of case-by-case balancing of interests where proposed impeachment of a witness other than the defendant is involved.

The government implies that, given the psychiatrist’s reliance on appellant’s statements and transmittal of them to the jury, this case is really about impeachment of the defendant himself rather than a defense witness. That argument differs only in degree, not kind, from the “proxy” theory rejected in James, see 493 U.S. at 311, 110 S.Ct. at 651. Appellant’s statements to his psychiatrist have little significance exCept as they formed a vital part of the basis for the expert’s conclusion,⁴ a fact the trial judge recognized in admitting appellant’s statements to the police only for their effect upon the weight of the psychiatrist’s conclusion. This was classic impeachment of a witness other than the defendant.

The categorical distinction James draws between defendant testimony and testimony of defense witnesses is itself debatable. See J.L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44 STANFORD L.Rev. 1301, 1312-21 (1992). But, for the reasons stated, James leaves no doubt that the government’s recourse in defending the impeachment that took place here lies with the Supreme Court and not the lower courts.

It remains for me to say I do not accept the government’s argument (occupying barely 3 pages of its 50-page brief) that any error in the admission of the defendant’s MVcmcfa-violative statements was harmless under the standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which the government concedes to apply here.

1 . Compare, e.g., Comment, The Use of Illegally Obtained Evidence to Rebut the Insanity Defense: A New Exception to the Exclusion Rule, 74 J.Crim.L. & Criminol. 391 (1983) with Comment, Fifth Amendment Limitations on the Use of Police Testimony to Rebut the Insanity Defense, 58 U.Chi.L.Rev. 359 (1991).

2 . There is no question in this case that appellant’s statements to the police were highly relevant; Dr. Saiger made that clear by admitting that if appellant did in fact remember what happened on May 19 "and lied when he said he didn’t, the diagnosis would definitely be reconsidered.” But I can not distinguish this relevance from the point made by Justice Kennedy in James, but which the majority did not find persuasive, that ”[t]o deprive the jurors of knowledge that statements of the defendant himself revealed the [defense] witness’ testimony to be false [or, as in Wilkes, simply but importantly mistaken] would result in a decision by triers of fact who were not just kept in the dark as to excluded evidence, but positively misled.” 493 U.S. at 324, 110 S.Ct. at 657 (Kennedy, J., dissenting).

Moreover, I note the Court’s recent affir-mance that deterrence of police misconduct is not the only goal of the exclusionary rule as applied to Miranda violations: "By bracing against ‘the possibility of unreliable statements in every instance of in-custody interrogation,’ Miranda serves to guard against 'the use of unreliable statements at trial.’” Withrow v. Williams, — U.S. -, -, 113 S.Ct. 1745, 1753, 123 L.Ed.2d 407 (1993) (citation omitted).

3 . Appellant, of course, rejects the notion of "psychiatrist as mouthpiece” in insanity cases, pointing out that the very role of the psychiatrist at all faithful to his profession is not to take and "repeat” anything the defendant tells him at face value; indeed, the “truth” of what the defendant tells him may be the very opposite of what the defendant says. In appellant's view, the professional oath and reputation of a medical doctor serve as the equivalent and more of the oath a lay witness (not acting as a "conduit”) swears to tell the truth.

4 . That is why, for example, we readily allow the admission of hearsay statements, generally unreliable, as part of the material on which an expert relied in opining on the mental condition of one whom the government seeks to civilly commit. In re Melton, 597 A.2d 892 (D.C.1991) (en banc).