Robertson v. State

Tom Glaze, Justice, dissenting in part. I respectfully dissent from the majority’s holding that the trial court did not err in refusing to strike the testimony of Dr. Lynch after she asserted the fifth amendment. Dr. Lynch simply had no fifth amendment right to assert, yet the majority opinion allows a witness the right to refuse to testify even though that witness has no legal basis to do so.

Prior to trial, appellant’s counsel obtained information that Dr. Lynch had suffered from psychiatric problems; thus, counsel requested the court to order Dr. Lynch to divulge her medical records which might reflect her professional competence and ability to testify. Both the state and defense counsel agreed to an order to require Dr. Lynch to be deposed and for her to bring her medical records to the deposition. At the subsequent deposition, Dr. Lynch, invoking the fifth amendment, refused to provide her medical information. Appellant’s counsel moved to have Dr. Lynch held in contempt, or in the alternative, to strike her prior testimony concerning appellant’s competency. Although the prosecutor stated that he had no objection to the striking of Dr. Lynch’s testimony, the trial court still refused to grant the motion to strike or to hold Dr. Lynch in contempt.

Obviously, Dr. Lynch’s testimony was an important part of the state’s case, especially concerning appellant’s fitness to proceed to trial. The state was quite aware of the problem it had regarding Dr. Lynch as a witness because it decided not to call her at trial.

Clearly, the fifth amendment operates only where a witness is asked to incriminate himself — in other words, to give testimony which may possibly expose him to a criminal charge. Ullmann v. United States, 350 U.S. 422 (1956). Its [the fifth amendment’s] sole concern is to afford protection against the danger to a witness of being forced to give testimony leading to the infliction of penalties affixed to criminal acts. Id.

Here, defense counsel was only seeking information concerning Dr. Lynch’s prior medical history so as to impeach her testimony. In other words, the defense’s quest for information had nothing to do with exposing Dr. Lynch to a criminal charge. In my view, the majority court’s erroneous application of the fifth amendment has caused the court to reach an incorrect result, leaving the impression that the fifth amendment can be invoked to refuse to testify even in instances where the fifth amendment was never intended to apply. It is my opinion that a witness cannot justify his or her refusal to testify based upon the fifth amendment when he or she clearly has no grounds to assert that amendment.

The issue here, which the majority chooses to ignore, is whether Dr. Lynch’s medical records and history (which purportedly reveal a psychiatric disorder) are privileged. In Horn v. State, 12 Ark. App. 301 , 677 S.W.2d 856 (1984), the court of appeals, in accordance with Baker v. State, 276 Ark. 193 , 637 S.W.2d 522 (1982), correctly held that the physician/patient privilege found in A.R.E. 503 only protects confidential communications between doctor and patient, as opposed to evidence of medical treatment. In the instant case, Dr. Lynch was not asked about confidential communications between herself and her doctor, but was only asked about the fact of treatment. By refusing to compel her to answer the questions or, in the alternative, to strike her testimony, the trial court has effectively denied the appellant the right to cross examine this important expert witness. This was clear error.

Purtle, J., joins this dissent.