holding that where doctor was retained to evaluate defendant’s state of mind and the evaluation was shared with the government, the defendant could not object to a subpoena by the government to have the doctor testify
How later courts described this case
- holding that where doctor was retained to evaluate defendant’s state of mind and the evaluation was shared with the government, the defendant could not object to a subpoena by the government to have the doctor testify
- holding defense counsel in a case involving a potential defense of insanity must be free to hire a psychiatric expert to advise him with respect to the defendant's mental condition without risk of creating a potential government witness
- stating that defendant's psychiatrists 12 13 disclosures to attorney are privileged "at least until he is placed on the witness stand"
- holding that statements can be compelled testimonial self-incrimination since sanity goes to guilt or innocence of the accused
Written by the judges who cited it.
The opinion
JAMES HUNTER, III, Circuit Judge
(concurring):
I concur fully in the opinion of the court, but would like to add a few words. With respect to Dr. Flicker’s testimony, what is determinative in my view is the fact that the order appointing Dr. Flicker was a single purpose order. While § 4244 has an explicit prohibition only with respect to statements of the accused, 1 I believe that a prohibition on opinion testimony as to insanity within the meaning of Currens can be implied where the order is a single purpose one. Such an implicit prohibition arises from the fact that the sole purpose of the examination was to determine com *1052 petency to stand trial, and that defense counsel’s consent to such an order may be a result of his understanding of its limited purpose. 2 Had the district court appointed Dr. Flicker to determine sanity at the time of the offense as well as competency to stand trial, we would be faced with a substantially different case. 3
I also agree fully with the court’s opinion that, with respect to Dr. Sadoff’s testimony, the May 6 discovery order neither constituted a waiver of the attorney-client privilege nor destroyed the necessary expectation of confidentiality on the part of Martinez. In order for there to be an absence of an expectation of confidentiality which would prevent the attorney-client privilege from coming into being, there must be evidence that the person who made the communication and who is attempting to invoke the privilege was personally aware that his communications would be made known to other parties. There is no evidence that Martinez was personally aware that the Government would be able to learn of his communications to Dr. Sadoff, and a discovery order of which only counsel is aware is insufficient to establish the required personal knowledge on the part of the individual claiming the privilege. 4 As the court today holds, the admissibility of Dr. Sadoff’s testimony at retrial is dependent upon whether the Government can produce some other evidence that Martinez made disclosures to Dr. Sadoff without an expectation of confidentiality.
. That prohibition would be operative even if the order were a dual purpose one. See United States v. Malcolm, 475 F.2d 420, 426-27 (9th Cir. 1973).
. The majority of circuits have permitted opinion testimony following a dual purpose order. Compare United States v. Malcolm, supra, and United States v. McCracken, 488 F.2d 406 (5th Cir. 1974), with United States v. Driscoll, supra.
. In United States v. Tellier, 255 F.2d 441 (2d Cir.), cert. denied, 358 U.S. 821 , 79 S.Ct. 33 , 3 L.Ed.2d 62 (1958), on which the Government relies, it was quite clear from the record that the party claiming the privilege expected the substance of the communication to be passed on to others.
. See United States v. Driscoll, 399 F.2d 135, 137 (2d Cir. 1968), where the court stated: “We do not believe that a defendant can be told that he is to be examined for one purpose and, once his cooperation has been obtained, be advised of another.” See also Winn v. United States, 106 U.S.App.D.C. 133 , 270 F.2d 326, 327-28 (1959). Furthermore, I agree with the dicta in the majority opinion that the use of statements and the fruits thereof elicited in a compelled psychiatric examination to establish sanity under Currens would present serious fifth amendment problems, although I note authorities indicating that the fifth amendment privilege may be deemed waived under some circumstances. See, e. g., United States v. Malcolm, supra, 475 F.2d at 425 .