holding that a “trial judge does not have the discretionary power to compel an unwilling witness to submit to a psychiatric examination”
How later courts described this case
- holding that a “trial judge does not have the discretionary power to compel an unwilling witness to submit to a psychiatric examination”
- trial judge has no discretionary power to compel victim to submit to a psychiatric examination to determine her competency and reliability as a witness
- construing former N.C.G.S. § 58.6
- court does not have the discretionary power to compel a witness to submit to a psychiatric examination
Written by the judges who cited it.
The opinion
EXUM, Justice,
dissenting.
The indictment against defendant for second degree rape rests on two alternative theories: (1) Defendant had vaginal intercourse with Donna Safrit by force and against her will, G.S. 14-27.5(a)(l). (2) Defendant had vaginal intercourse with Donna Safrit who at the time was either “mentally defective, mentally incapacitated, or physically helpless.” G.S. 14-27.5(a)(2). The state relied entirely on the testimony of Donna Safrit (corroborated by evidence of her pre-trial statements to another witness) to establish what happened on the occasion in question. There is little in her testimony to support the theory that defendant forcibly engaged in vaginal intercourse with her. The state seems primarily to have relied on the theory that Donna Safrit was “mentally defective” or “mentally incapacitated” at the time of the alleged offense. 1 It offered the testimony of Dr. Peter Crombes to establish this element of the offense.
Defendant’s pre-trial motion for a mental examination of Donna Safrit was summarily denied by Judge Albright who interpreted State v. Looney, 294 N.C. 1 , 240 S.E. 2d 612 (1978), to mean that trial judges have no authority to order such examinations. The majority’s decision confirms that Judge Albright properly interpreted Looney . The law in this area was carefully canvassed in Justice Lake’s opinion for the majority in Looney . I continue to hold to the view I expressed in my concurring opinion in Looney, 294 N.C. at 29 , 240 S.E. 2d at 628 :
“As have most of the well-considered decisions on the subject, to which the majority refers, I would conclude that our trial judges have the power, to be carefully used in the *125 exercise of their sound discretion, to order in appropriate circumstances the psychiatric examination of any witness as a condition to receiving the testimony of that witness. In this case the denial of defendant’s motion for such an examination was well within the discretion of the trial judge and should not be held for error.
As the majority wisely recognizes the witness’ rights must be given due consideration. Defendant should be required to make a strong showing that the witness’ mental make up is such that a psychiatric examination would probably reveal either that the witness is incompetent or that the witness’ credibility may be subject to serious question. Situations calling for the entry of such an order would, it seems, be rare indeed. But if called for, our judges should have the power to enter the order.”
This view is bolstered not only by the authorities cited in the majority opinion here and in Looney , but by the well-considered dissenting opinion of Judge Becton in the Court of Appeals.
My view is also bolstered by the compelling facts of this case. For here the state relies largely on its contention that the prosecuting witness is “mentally defective” or “mentally incapacitated” in order to convict defendant of the crime charged. Particularly under these circumstances, the trial judge should be permitted in his discretion to order a mental examination of the prosecuting witness to determine whether the witness is so mentally defective or incapacitated as to be incompetent as a witness.
Indeed where the prosecuting witness’ lack of mental capacity is one of the elements of the crime which the state must prove, I believe the defendant has a right to a mental examination of the witness by his own expert or an expert appointed by the court in order properly to explore a possible defense based on the absence of this element.
The majority does not reach this question on the ground that defendant’s motion for a mental examination of the prosecuting witness was made in order to determine only whether she was competent as a witness and not whether she was in fact “mentally defective” or “mentally incapacitated.” The majority correctly characterizes the basis for defendant’s pre-trial motion *126 and seems to be on sound ground under our cases in refusing to consider this question on appeal.
The majority’s reliance on the statement of Judge Duniway in United States v. Barnard, 490 F. 2d 907 (9th Cir. 1973), expressing concern for the possible effect of expert psychological testimony on the jury, seems to be misplaced. The rule for which I argue would not permit such testimony to go before the jury. It would only be offered before the trial judge to assist him in determining the witness’ competence to testify. This would exhaust the uses to which such testimony could be put.
For the reasons stated, therefore, I vote to give defendant a new trial at which the trial court would be permitted to exercise its discretion in determining whether to allow defendant’s motion for a mental examination of the prosecuting witness.
Justices Copeland and CARLTON join in this dissent.
. Judge Albright’s jury instructions are not in the record, but on oral argument defendant’s counsel stated that the case was submitted to the jury on both theories.