The opinion
MR. JUSTICE CLARK, dissenting:
I believe the judgments below should have been reversed and the cause remanded to the circuit court.
The majority, of course, correctly states that the authority to order a psychiatric examination for the State’s “independent ascertainment of an accused’s mental condition at the time of a criminal occurrence” is found in section 115—6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 115-6). (74 Ill. 2d at 352.) But that is not germane here. The issue is whether the defendant was entitled to reasonable notice of and presence of counsel at the pretrial psychiatric examination once he indicated he would rely on the defense of insanity. Our Rule 413 (58 Ill. 2d R. 413) provides:
“(a) The person of the accused. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to:
* * *
(ix) submit to a reasonable physical or medical inspection of his body.
(b) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purposes in an order admitting the accused to bail or providing for his release.” (Emphasis added.)
The plain reading of this rule evidences the intent to require notice and presence of counsel whenever an accused must submit to a “medical inspection of his body.” The majority asserts that Rule 413 refers to physical evidence only. I disagree. I do not believe the rule indicates an intention or implication to distinguish between medical and psychiatric inspection or examination. Webster’s Third New International Dictionary 1832 (1971) defines psychiatry as “a branch of medicine that deals with the science and practice of treating mental, emotional, or behavioral disorders ***.” Medical genetically encompasses psychiatric.
But more importantly, Rule 413 only allows what the •sixth amendment (U.S. Const., amend. VI) requires: the presence of counsel at a pretrial psychiatric examination, or a satisfactory substitute for presence, because the examination is a critical stage of the prosecution. In United States v. Wade (1967), 388 U.S. 218 , 18 L. Ed. 2d 1149 , 87 S. Ct. 1926 , the Supreme Court held that a post-indictment lineup was a critical stage of the proceedings necessitating the presence of counsel. Its rationale, which I find pertinent here, was that an accused “is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” ( 388 U.S. 218, 226 , 18 L. Ed. 2d 1149, 1157 , 87 S. Ct. 1926, 1932 .) The presence of counsel at the psychiatric examination “is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witness against him and to have effective assistance of counsel at the trial itself.” Wade, 388 U.S. 218, 227 , 18 L. Ed. 2d 1149, 1157 , 87 S. Ct. 1926, 1932 ; Comment, Right to Counsel at the Pretrial Mental Examination of an Accused, 118 U. Pa. L. Rev. 448 (1970).
The very nature of a psychiatric examination, ordered by a trial court on the State’s motion, warrants definition as a critical stage of the proceedings. The examination is adversary in that a State-appointed psychiatrist (Ill. Rev. Stat. 1971, ch. 38, par. 115—6) gives the tests and asks the questions. A defendant may not be confronted by the State per se, that is by the prosecutor, but the defendant is confronted by an appointed agent of the State. Moreover, a defendant may be lulled into believing that the psychiatrist is impartial. (See Diamond & Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 Mich. L. Rev. 1335 , 1344 (1965).) The purpose of the examination may not be to gather evidence; nevertheless, the examination is of an investigative character resulting in statements, sometimes incriminating, getting before the trier of fact through the testimony of the examining physician. (In re Spencer (1965), 63 Cal. 2d 400, 410 , 406 P.2d 33, 40 , 46 Cal. Rptr. 753, 760 .) This leads to the second point—effective cross-examination.
For meaningful cross-examination, a defense attorney must “have some understanding of the psychiatrist’s diagnostic techniques” and “know the methodology and approach followed if he is to be able to challenge effectively the validity of the conclusions reached by the state psychiatrist.” (Meister, Miranda On the Couch, 11 Colum. J.L. & Soc. Prob. 403, 445 (1975).) The psychiatrist’s theories and techniques must be comprehended before they may be challenged at trial. It is doubtful that anyone, attorney or psychiatrist, can acquire this comprehension from frequently conclusional, summary or otherwise inadequate reports of examinations by the examining psychiatrists. (For an example, see Calloway v. United States (D.C. Cir. 1959), 270 F.2d 334, 335 .) This is to say nothing of impediments sometimes erected to limit access to such medical and institutional reports. Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, 702-03 ; Comment, Right to Counsel at the Pretrial Mental Examination of an Accused, 118 U. Pa. L. Rev. 448 , 449 (1970).
A third consideration is the possible undue reliance by a trier of fact on expert opinion evidence by the examining psychiatrist. Psychiatry is not an exact science and psychiatric evidence is only derivative: the psychiatrist studies the mental state of a patient indirectly via the patient’s speech and behavior. Such evidence is a necessity, but its usefulness is effective only if we recognize that reliance on the testimony of a psychiatrist “is measured by the probability that what he has to say offers more information and better comprehension of the human behavior which the law wishes to understand. The psychiatrist offers a hypothesis explaining” a patient’s or an accused’s thoughts, feelings and actions, and attaches value to them. But the “legal usefulness of such hypotheses and values will depend less upon their scientific precision than upon their wisdom.” (Diamond & Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 Mich. L. Rev. 1335 , 1342 (1965).) In other words, such testimony, however accurate and wise it may be, is value laden. It is so because the psychiatric science is still imprecise, and not fully understood or embraced by the many but only by the few who may possess “technical knowledge of some depth.” For this reason the trier of fact may attach an overriding credence to such an expert. This is a problem that the defense, through its own psychiatric experts and through cross-examination, must contend with. To adequately do so, the defense attorney must be thoroughly familiar with the hypotheses and methods of the State-appointed psychiatrist.
The majority also correctly notes that its decision follows the view of most jurisdictions — but not all. Others recognize the right to presence of counsel at a pretrial psychiatric examination. (E.g., Lee v. County Court (1971), 27 N.Y.2d 432 , 267 N.E.2d 452 , cert. denied (1971), 404 U.S. 823 , 30 L. Ed. 2d 50 , 92 S. Ct. 46 ; In re Spencer (1965), 63 Cal. 2d 400 , 406 P.2d 33 , 46 Cal. Rptr. 753 ; Schantz v. Eyman (9th Cir. 1969), 418 F.2d 11 , cert. denied (1970), 397 U.S. 1021 , 25 L. Ed. 2d 530 , 90 S. Ct. 1259 . See also Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695 .) After previous appeals and remands, the trial court, in Lee v. County Court (1971), 27 N.Y.2d 432 , 267 N.E.2d 452 , ordered a pretrial psychiatric examination which both the defense counsel and district attorney were permitted to attend. On advice of counsel at the examination, the defendant refused to answer questions concerning his behavior on the day of the crime; the psychiatrists were, accordingly, unable to give an opinion regarding the accused’s mental state. On motion of the State, the court ordered the defendant’s insanity defense struck, exclusion of his psychiatric evidence, and a new examination without the presence of nonmedical personnel. The New York Court of Appeals ruled that the defense should not have been struck, although preventing the defendant from presenting psychiatric evidence was acceptable. Turning to the issue of right to counsel at the examination, that court succinctly held because “pre-trial psychiatric examinations are a critical stage in the prosecution of one accused of a crime under the Wade rationale, the defendant is entitled to have counsel present to make more effective his basic right of cross-examination.” ( 27 N.Y.2d 432, 444 , 267 N.E.2d 452, 459 .) The court also determined that the prosecuting attorney could attend and that the role of counsel was passive and limited to observation.
In a habeas corpus proceeding, the Federal Ninth Circuit Court of Appeals held that “the post-indictment questioning of petitioner by a State psychiatrist on the county attorney’s instructions, without notice to and in the absence of counsel, violated petitioner’s right to the assistance of counsel at all critical stages of the criminal proceedings against him.” (Schantz v. Eyman (9th Cir. 1969), 418 F.2d 11, 13 .) Schantz was decided on the basis of United States v. Wade, above, but in the context of preventing violation of the fifth amendment privilege against self-incrimination at the examination, an issue not raised here. (The Schantz court apparently would allow an active role for counsel at the examination.) The court concluded that because the petitioner was entitled to but denied assistance of counsel, his conviction could not stand.
Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695 , cited by the majority, also recognized the right, with qualification. Thornton’s reasoning, in dicta, lends support to a claim of a sixth amendment right to counsel at the pretrial psychiatric examination although the court was addressing itself specifically to the “staff conference” (of examining psychiatrists) which follows the examination itself. ( 407 F.2d 695, 699-703 .) In his dissent, Judge Burger viewed the staff conference, and impliedly the examination itself, as free from the adversary process. He felt the presence of defense counsel could only impair the investigation into and the decision-making process regarding a defendant’s mental state. “The presence of a lawyer for the patient at a staff conference would obviously inhibit the free expression and exchange of ideas which normally occurs between the doctor and patient.” ( 407 F.2d 695, 711 .) I do not find this view convincing.
First, it is not so obvious that the presence of counsel would inhibit or impair an effective examination, especially where the attorney is confined to a passive role of observation as I believe he must be. Lee v. County Court (1971), 27 N.Y.2d 432, 444 , 267 N.E.2d 452, 459 .
Second, it is true the pretrial psychiatric examination is of an intimate nature, but portraying the examination as involving a doctor-patient relationship, where the doctor is State appointed and may have an enduring relationship with the State, is a bit strained. The State-appointment element casts the examination into the realm of investigative and adversary.
Even State v. Whitlow (1965), 45 N.J. 3 , 210 A.2d 763 , cited by the majority, recognized that the presence of counsel at the psychiatric examination was not inherently harmful. The court simply felt presence of counsel was not commanded by the Constitution. Like others, however, I believe the presence of counsel may have a “beneficial effect” on the examination: “The reassuring presence of counsel could do much to alleviate the accused’s feelings of isolation and distrust, and in fact contribute to the effectiveness of an examination otherwise hindered by the accused’s reluctance to respond freely to the psychiatrist.” Comment, Right to Counsel at the Pretrial Mental Examination of an Accused, 118 U. Pa. L. Rev. 448 , 456 (1970).
(As has been suggested elsewhere (e.g., Thornton v. Corcoran (D.C. Cir. 1969), 407 F.2d 695, 702 ), alternative devices may be found which protect the defendant’s sixth amendment right to counsel at a critical stage of the proceeding without requiring counsel’s actual presence. In a particular case, psychiatrists may object for possibly legitimate reasons to the presence of an observing counsel. A videotape, for example, would intrude upon the examination only very minimally.)
I believe the defendant, under our Rule 413 and the sixth amendment of the United States Constitution, has the right to presence of counsel at a pretrial psychiatric examination, a critical stage of the prosecution. Moreover, the record shows inadequate notice of the examination. Hence, I would have reversed and remanded.
MR. CHIEF JUSTICE GOLDENHERSH joins in this dissent.