Blaisdell v. Commonwealth

Quirico, J.

(with whom Braucher, J., joins, dissenting in part). The report of the single justice presents two important questions arising from an order of a judge of the Superior Court that the defendant in a criminal proceeding submit to a psychiatric examination pursuant to G. L. c. 123, § 15, and from statements made by the judge concerning the sanctions which he might impose on the defendant if he should fail to cooperate in the examination.

I respectfully dissent from the court’s answer to the second question. That question is: “If the defendant cooperates with the court-ordered psychiatric examination, to what extent can a report or the testimony of the psychiatrist be used at trial?” The court engages in a lengthy discussion of the possibility that a confession, admission or other inculpatory statement may be made by the defendant during the course of the examination. It then concludes that such a statement or its fruits might be introduced in evidence against the defendant at his trial, and that his Fifth Amendment privilege against self-incrimination would at that point be violated. The court therefore prescribes detailed procedural steps, including impoundment, to prevent the prosecution from having access to the psychiatric report unless the defendant elects to testify himself or to present psychiatric expert testimony based on his statements to the psychiatrist. The court’s answer to the second question is summarized as follows: “The testimony or report of the psychiatrist may be used in a fashion consistent with our rules of evidence and under the guidelines set forth in this opinion.”

*771 I believe that the answer to the second question should be based on the provisions of G. L. c. 233, § 23B, as amended by St. 1970, c. 888, § 27, to the effect that: “In the trial of an indictment or complaint for any crime, no statement made by a defendant therein subjected to psychiatric examination pursuant to [G. L. c. 123, §§15 or 16] for the purposes of such examination or treatment shall be admissible in evidence against him on any issue' other than that of his mental condition, nor shall it be admissible in evidence against him on that issue if such statement constitutes a confession of guilt of the crime charged” (emphasis supplied). I read that language to protect the defendant from the use against him of his own inculpatory statements, or the fruits thereof, for any purpose, and to limit the use of any other statements made by him to the issue of his mental condition. In my opinion the legal effect of the statute is to give to the defendant an immunity fully commensurate with any Fifth Amendment right of which he might otherwise be deprived by compelling him to undergo the psychiatric examination and the interrogation involved therein. I see no constitutional infirmity in the statute.

I would therefore answer the second question in a manner which could be summarized as follows: “No statement made by the defendant constituting a confession or admission of guilt of the crime charged is admissible in evidence for any purpose, whether as part of the report of the psychiatrist or otherwise; and the report or testimony of the psychiatrist of any other statements by the defendant shall be admissible only on the issue of his mental health. The fruits of any inadmissible statement are equally inadmissible.” If a question arises on the admissibility of any statement or evidence which the defendant contends is inadmissible because it is an inculpa-tory statement made by him to a psychiatrist in the course of an examination ordered by the court, or because it is the fruits of such a statement, the trial judge can hear and decide the matter in the absence of the jury, just as is done frequently on evidentiary rulings. The action *772 required by the trial judge would be similar to that when proffered evidence is objected to for a variety of other reasons, e.g., that it was obtained by a warrantless or otherwise unlawful search or in violation of the rule of Miranda v. Arizona, 384 U.S. 436 (1966), or that an identification was made in violation of the rule of United States v. Wade, 388 U.S. 218 (1967).

I would rely to a greater degree than does the court on the experience and demonstrated competence of trial judges to take whatever steps may be necessary, under present procedures, to insure to defendants and the public the full measure of benefits and protection which the Legislature intended for them by the enactment of G. L. c. 233, § 23B. I would not add further to the already seemingly interminable course of criminal prosecutions by mandating yet another layer of time consuming procedures which, if needed, might warrant consideration under the court’s rule making power rather than in a judicial opinion.