Amicus Curiae Brief — Smith v. Murray

yoreme Court, U.S.

FILED

DEC 4

No. 85-5487

JOSEPH & +

| —

IN THI

Supreme Court of the United States

OCTOBER TERM. 1985

(hn Writ of Certiorari to the lL nited States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

AMERICAN PSYCHIATRIC ASSOCIATION

AND THE AMERICAN ACADEMY OF PSYCHIATRY

AND THE LAW AS AMICI CURIAI

IN SUPPORT OF PETITIONER

Ai)

TABLE OF AUTHORITIES—Continued

(1957 12, 19

State 2 Toste 178 Conn. 626, 424 A.2d 29

(1979)

limnstod Ntat ; i/h shft xx | a , (4th Cir

1968) 14

Iinited State A/vare ) F.2d 1036 (3d Cir

1975) pa n

ted Stat R, tt AGO I d & (Tt) (it

1976) LS

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/ ted State ; ( aste? ig | 7 (7t?

(ir.). cert. denied 34 US. 4 (1977) 16

j ted Ntat, f ne? 24) } a4 {5th { yr)

ert denied APG TTS & (197% 14

Supp. 1038 (E.D.NLY 1976) afi'd without

opimon, 556 F.2d 556 (2d Cir. 1977) 10. 19

/ fed Sta Handy 1 | i Mf (Stn Coir

1971). a r ad. 409 U.S. 846 (197°) 15

J Pom “Mints I ; tf } ct ‘ ‘ rr ‘ ’

140) ) lf

United Stat M 149 U.S (1981) 4

lnited Stat j i170 F.9d 1 (D.C. Ci

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tes and Kule

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23 U.S.C. § 2254 F

iv

TABLE OF AUTHORITIES—Continued

Rule 12.2, Federal Rules of Criminal Procedure

Alaska Stat. § 12.45.083 (1980)

Cal. Penal Code Ann. § 987.9 (West Supp. 1984)

Colo. Rev. Stat. § 18-1-403 (Supp. 1984)

Fla. Rule Crim. Proc. 5.216 : ——

Ohio Rev. Code Ann. U.S. 2941.51 (Supp. 1983)

Va. Code Ann. § 19.2-264, et seq. (Cum Supp

1977)

Other Authorities:

American Bar Association, Criminal Justice Men-

tal Health Standards (Adopted August 1984)

American Psychiatric Association, Principles of

Medical Ethics with Annotations Especially Ap-

plicable to Psychiatry (1985)

S. Halleck, Law In the Practice of Psychiatry: A

Handbook for Clinicians (1980)

MacDonald, Psychiatry and the Criminal

(1958)

Meister. Miranda on the Couch: An Approach to

Problems of Self-incrimination, Right to Coun-

sel. and Miranda Warnings in Pre-trial Psy-

chiatric Exrawinations of Criminal Defendants,

11 Colum. J.L. & Soc. Probs. 403 (1975)

Saltzburg, Privileges and Professionals Law

yers and Psychiatrists, 66 Va. L. Rev. 597

(1980)

Slobogin, Estelle v. Smith The Conatitutional

Contours of the Forensic Evaluation, 31 Emory

LJ. 71 (1982)

Page

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

MICHAEL MARNELL SMITH,

Petitioner.

\

ALLYN R. SIELAFF, Director,

Virginia Department of Corrections,

Respondent

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

AMERICAN PSYCHIATRIC ASSOCIATION

AND THE AMERICAN ACADEMY OF PSYCHIATRY

AND THE LAW AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

The American Psychiatric Association, founded in

1844. is the nation’s largest organization of qualified

doctors of medicine specializing in psychiatry. Approxi

mately 32,000 of the nation’s 40,000 psychiatrists are

members. The Association has participated as amicus

curiae in the threes majo Supreme (ourt cases dealing

with constitutional a pects of psychiatric testimony i!

criminal cases, Ak Okiahoma, 105 S. Ct. 1087 (1985

RBaref | / a S. 163 1] “~ ‘a Pel B) LORS and I a

‘

Smith. 451 U.S. 454 (1981). The Association has also

filed amicus briefs in numerous other cases involving

mental health issues, including Metropolitan Life Insur-

mrece ("a / Massachusetts, 105 ~ Ct P2R0 ' 1985). Vills

». Rogers. 102 S. Ct. 2442 (1981), Parham v. J R.. 442

11S 584 (1979). Addington v. Texas, 441 US. 418

(1979 . and OC anne yy 7 Donal d SOT, 400 ! a AA 1975

The American Academy of Psychiatry and the Law

is a medical subspecialty organization of psychiatrists in

volved in the practice or teaching of forensic psychiatry

Founded in 1969, the Academy has just over 1,000 mem

bers in the United States, Canada and other countries

Many of these physicians function regularly as forensi

experts in criminal cases, performing examinations of

defendants, consulting with defense counsel and prosecut

ing attorneys, and providing trial testimony on such

issues as competency to stand trial, legal sanity, dimin

ished capacity and other legal questions requiring ps)

chiatric expertise. The Academy sponsors numerous edu

eational activities and programs, and is engaged in tie

development of professional and ethical standards of

practice for forensic psychiatrists

Both the Association and the Academy have been a

tively involved in examining the role of psychiatrists as

expert witnesses and consultants in criminal proceeding

with particular attention to both legal and ethical ques

tions concerning the degree of confidentiality ind othe

protections appropriate to psychiatrists’ various roles 1!

that setting Amici are therefore keenly interested i!

the issus raised in thi ease. and believe that they cal

contribute ionifi mnt \ tr tihng Court's COT dey itior f

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INTRODUCTION AND SUMMARY

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6

defense.” Jd. at 1095. Depending on the circumstances,

the psychiatrist may conduct psychological and physiologi-

eal tests, as well as an extensive oral examination of the

defendant and, on the basis of the information derived

from these procedures, assist defense counsel in assessing

the feasibility of potential psychiatric claims.

If the right to a psychiatrist functioning in this ca-

pacity is to have any meaning at all, it must entail re-

strictions on the prosecution’s access to a_ psychiatrist

consulted by the defense. Defense counsel, in short, must

be able to research his case in a context of confidentiality.

If the price of merely exploring a possible psychiatric

defense—a defense that, in fact, may never be advanced

at trial—is automatic disclosure to the government of the

defendant’s statements to the examiner, the right estab-

lished in Ake for the protection of defendants wil! be

perversely transformed into a new and potent discovery

tool for the prosecution.

It is one thing to permit an expert retained by the

prosecution to examine the defendant once defense coun-

sel elects to assert a psychiatric defense and to support

that defense with medical testimony. At that point coun-

sel is able to make the difficult choice that the potential

benefit from assertion of the contemplated psychiatric

claim or defense is worth the risk of disclosing otherwise

confidential information to the government, which it may

then use to rebut that claim or defense. But it is another

thing altogether to say that the prosecution may have

full access to a psychiatrist who has been provided under

Ake, and may use that psychiatrist to testify on any issue

the government pleases, where the defense never even

gives notice of an intention to interpose a clinically-

supported psychiatric claim or defense. Under the latter

approach, the price extracted from a defendant for exer-

cising his Ake right is so exorbitant as to eviscerate the

right.

Respondent’s attempt to avoid this reasoning by anal-

ogizing a psychiatrist to a “friend” of the defendant is

to no avail. To be sure, a criminal defendant who con-

fides in a friend assumes the risk that the friend maj

reveal the confidences to the police or prosecution. Con-

istent with the evaluative psychiatric function envisioned

in Ake, however, the examining psychiatrist here was not

in the legal position of petitioner’s friend. He could no

more reveal petitioner’s incriminating statements to the

prosecution than could an attorney working on the de-

fense team.

II. Although not directly presented on the specific

facts of this case, a closely-related question arises where

a defendant does interpose a clinically-supported psy-

chiatric claim or defense, but fails to call as witnesses

all of the psychiatrists whom he consulted in advance of

trial. In these circumstances may the prosecution con-

sult with, and call as witnesses, the psychiatrists who are

not called by the defense? This is a recurring problem

confronting state and federal trial courts and, indeed,

will likely arise in this very litigation in the event of a

remand for a new trial on the death penalty issue.

We believe that the question must be answered in the

negative in view of the second psychiatric function en-

visioned in Ake. In addition to providing expert evalua-

tive services, the psychiatrist to which an indigent de-

fendant is entitled also performs a consu/tative function

as a member of the defense team. This separate function

includes the provisior of information—information that a

medical expert alone is likely to possess—which defense

counsel may need in fashioning his strategy with respect

to psychiatric issues, preparing his own experts for cross-

examination, and preparing to cross-examine the prosecu-

tion’s medical] experts.

The Due Process right to such consultative assistance

is rendered meaningless if, simply because the psychia-

8

trist is not called as a witness by the defense, he is then

free to disclose defense counsel’s trial tactics to the prose-

cution. Nor can this objection be overcome by a rule

permitting the prosecution to call the psychiatrist as a

witness, bu: prohibiting advance consultation with the

psychiatrist. Obviously, cross-examination strategies

based on consultations with a psychiatrist will be com-

pletely defeated if the psychiatrist turns out to be the

government witness whom defense counsel will have to

cross-examine. The government’s legitimate interests in

these circumstances can be fully protected by allowing

it to select its own experts to examine the defendant and

consult with the prosecutor.

III. If the Court decides that Dr. Pile’s testimony did

not infringe petitioner’s Ake right—and only if the Court

so holds with respect to the principal Due Process issue

in this case—then the same testimony should have been

excluded under the Fifth Amendment principles of Es-

telle v. Smith, 451 U.S. 454 (1981). To the extent Dr.

Pile did not perform confidential evaluative and consulta-

tive services for the defense, his role must be viewed as

that of an “agent of the State” within the meaning of

Estelle. His testimony for the prosecution therefore

should have been precluded because it consisted of the

recounting to the jury of unwarned statements made by

petitioner during a psychiatric evaluation.

9

ARGUMENT

I. DR. PILE’S TESTIMONY VIOLATED PETITION-

ER’S DUE PROCESS RIGHT TO THE ASSISTANCE

OF A PSYCHIATRIST

The issue presented in this case is the price that may

be placed on a defendant’s exercise of the Due Process

right recognized by this Court last Term in Ake v. Okla-

homa, supra, The petitioner here never asserted a plea

of insanity; never asserted any other psychiatric claim

at the guilt or penalty phase of his trial; and never

sought to present expert psychiatric testimony on his

behalf. Nonetheless, his court-appointed psychiatrist, to

whom he had revealed incriminating information in the

course of a psychiatric evaluation, was permitted to tes-

tify as a prosecution witness and disclose that informa-

tion to the jury. Under these circumstances, the price

extracted from petitioner was so great as to nullify his

right to the evaluative services of a psychiatric expert.

This Court’s decision in Ake established that an in-

digent defendant, no less than an affluent one, is entitled

to the assistance of a psychiatrist in cases where an issue

potentially involving psychiatric testimony may be “a sig-

nificant factor at trial...” 1058S. Ct. at 1097. Although

such assistance has long been provided under federal law,

18 U.S.C. § 3006A, and by most states,” the Court held that

a defendant’s right to psychiatric assistance is constitu-

tionally-compelled under the Due Process guarantee of

“meaningful access to justice,” id. at 1094, and “an ade-

quate opportunity to present [one’s] claims fairly within

the adversary system.” /bid., quoting Ross v. Moffitt, 417

U.S. 600, 612 (1974). “|Whhen the State has made the

defendant’s mental condition relevant to his criminal

2 See, e.g., Cal. Penal Code Ann. § 987.9 (West Supp. 1984); Colo.

Rev. Stat. § 18-1-403 (Supp. 1984); Fla. Rule Crim. Proc. 3.216;

Ohio Rev. Code Ann. § 2941.51 (Supp. 1983). See Ake v. Oklahoma,

supra, 105 S. Ct. at 1094 n.4 (and authorities cited therein).

10

culpability and to the punishment he might suffer,” the

Court concluded, id. at 1095, the assistance of a psychia-

trist represents a “basic tool of an adequate defense”

that must be provided—at government expense, if neces-

sary. Id. at 1094, quoting Britt v. North Carolina, 404

U.S. 226, 227 (1971).

While “neither approv[ing] nor disapprov|ing] the

widespread reliance on psychiatrists. . . ,” id. at 1096,

and the increasing complexity and importance of psy-

chiatric issues in criminal proceedings, the Court ac-

knowledged the “reality’’ that access to expert medical

assistance “may well be crucial to the defendant’s ability

to marshal his defense.” /d. at 1095. The Court stressed

that psychiatrists serve an essential evaluative function

for the defendant and his counsel. They “gather facts,

both through professional examination, interviews, and

elsewhere. . . ; they analyze the information gathered and

from it draw plausible conclusions about the defendant's

mental condition, and about the effects of any disorder

on behavior;” and they furnish defense counsel with

“opinions about how the defendant’s mental condition

might have affected his behavior at the time in question.”

Tbid.

If the right to a psychiatrist fulfilling this evaluative

function is to have any substance at all, it must entail

restrictions on the prosecution’s access to a psychiatrist

who has been consulted by the defense. To conduct a

medically valid examination and to properly assess the

validity of potential psychiatric defenses, a psychiatrist

must have the trust of the defendant and his attorney.

See United States v. Alvarez, 519 F.2d 1036, 1046 (3d

Cir. 1975): United States ex. rel. Edney v. Smith, 426

F. Supp. 1038, 1047-48 (E.D.N.Y. 1976), aff'd without

opinion, 556 F.2d 556 (2d Cir. 1977). An examination

of the defendant on the issue of his legal sanity, for ex-

ample, inevitably will include probing questions concern-

ing the circumstances surrounding the crimes charged as

well as circumstances relating to previous antisocial be-

1]

havior. See S. Halleck, Law In the Practice of Psychia

t) Pi A Handbook ' ir ("] ; f ‘771s Z2U LYS . J. Ma Don-

ald. Psy fi atry and the (rin inal 17 1958 . As in tne

ing Statements and other incuipatory information. sSim-

ilarly, where the prosecution seeks to prove a defend-

ant’s future dangerousness in a capital case, any attempt

by the defense to rebut such allegations would most

certainly involve close questioning of the defendant con-

cerning past criminal behavior.

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state-provided evaluation, if the defendant knows at the

assert—he makes available to the prosecution the sub-

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stance of his statements to the psychiatrist, and en:

the prosecution to call the psychiatrist as its own witness

at trial on any issue the prosecution pleases. In this case

the psychiatrist was used by the state to testify on the

question of petitioner’s future dangerousness. But the

issue presented is not limited to that situation alone

Under respondent’s apparent view of this case, a psy-

chiatrist appointed at the request of the defense is in

the same legal position as a defendant’s “friend,” to

whom the defendant has confided incriminating informa-

tion. As such, the psychiatrist presumably also would be

’

statements tending to prove the defendant’s substantive

Pull

The American Psychiatric Association ne of the amici here,

argued in Estelle Smith, 451 U.S. 454 1981), and Bare /

Estelle, 463 U.S. 880 (1983), that psychiatric examinations innot

yield reliable predictions regarding a defendant's futur langerou

ness

12

Respondent takes no account of the importance of con-

fidentiality to the evaluative function performed by a

defense psychiatrist under Ake. At the preliminary stage

of a criminal case, before notice has been given of an

intention to interpose a plea of insanity or other psy-

chiatric claim, defense counsel must be able to research

these matters in a context of confidentiality. Counsel

must be able to request a psychiatric evaluation of his

client, confident that that limited decision, without more,

will not result in automatic disclosure to the prosecution

of his client’s statements to the psychiatrist. If the rule

were otherwise, the right established in Ake to psychia-

trie assistance—a right created for the protection of de-

fendants—would be perversely transformed into a potent

new discovery device for the prosecution.

Even before this Court’s decision in Ake, the principle

that there exists some limitation on prosecution access

to a psychiatrist retained by or appointed for the defend-

ant was almost universally recognized. Applying princi-

ples of attorney-client privilege,‘ virtually every federal

and state court to consider the question concluded that,

while a defendant does not have absolute control over the

information given to a psychiatrist consulted at his re-

quest, government access to that psychiatrist must be

denied in the circumstances presented here. See, e¢.g.,

United States v. Alvarez, supra, 519 F.2d at 1045-47;

Houston v. State, 602 P.2d 784 . Alaska 1979); People

v. Lines, 13 Cal.3d 500, 119 Cal. Rptr. 225, 531 P.2d 793

(1975): Pratt v. State, 284 Md. 516, 398 A.2d 421 (1979);

People v. Hilliker, 29 Mich. App. 543, 547, 185 N.W.2d

831, 833 (1971); State v. Kociolek, 23 N.J. 400, 412-15,

129 A.2d 417, 423-25 (1957); People v. Edney, 39 N.Y.

4 Because psychiatric examinations in this context are not usually

undertaken for purposes of treatment, the physician-patient or

psychotherapist-patient privilege has generally been held to be inap-

plicable. See United States v. Alvarez, supra, 519 F.2d at 1046;

Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983).

13

2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976);

Pouncy v. State, 353 S.2d 640 (Fla. 1977); State v.

Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982); State v.

Dodis, 314 N.W.2d 233 (Minn. 1982); State v. Toste, 178

Conn. 626, 424 A.2d 293 (1979). But see State v. Carter,

641 S.W.2d 54, 57 (Mo. 1982) (attorney-client privilege

inapplicable to defendant’s statements to a psychiatrist

retained by defense).

These courts have disagreed regarding the point at

which the prosecution may insist on access to such psy-

chiatrists, and the uses to which information secured by

these ‘psychiatrists may be put by the prosecution. At

minimum, however, virtually every court has agreed that

the defendant must give notice of an intention to assert

a psychiatric defense before the shield of confidentiality

afforded by the attorney-c..ent privilege may be lifted

from communications among the defendant, a psychia-

trist that he consults, and defense counsel. See also C.

Slobogin, Estelle v. Smith: The Constitutional Contours

of the Forensic Evaluation, 31 Emory L.J. 71, 128-30

(1982); American Bar Association, Criminal Justice

Mental Health Standards, § 7-3.2.°

To say that Ake requires that the defendant have some

measure of control over prosecution access to the informa-

tion disclosed in a psychiatric examination and the ex-

pert conclusions based on that examination is not to say

5 It has also been repeatedly recognized that statements made by

a defendant to a psychiatrist in the context of a court-ordered

examination may not be used by the prosecution as evidence to prove

the defendant’s substantive guilt even when such statements may

be used to rebut his psychiatric claims. See, e.g., Gibson

Zahradnick, 581 F.2d 75, 78-79 (4th Cir. 1978); United States

Reifsteck, 535 F.2d 1030, 1034 & n.1 (8th Cir. 1976) ; United States

v. Bennett, 460 F.2d 872, 878-80 (D.C. Cir. 1972): United States

v. Alvarez, supra, 519 F.2d at 1042. See also Rule 12.2(c), Federal

Rules of Criminal Procedure. Most states have codified this restric-

tion in statutes and procedural rules.

14

that he can block access in all circumstances: the “fair

trial” right established in the Ake decision need not de-

prive the prosecution of evidence it reasonably requires to

meet its burden in a criminal case; nor is the prosecution

placed at an unfair disadvantage if, to effectuate the

right to psychiatric assistance, that assistance is subject

to a reasonable degree of confidentiality. A fair “state-

individual balance,” Murphy v. Waterfront Commission,

878 U.S. 52, 55 (1964), may be struck without resort

to the extreme view upparent!y advanced here by re-

spondent.

To begin with, any psychiatric expert presented at

trial as a defense witness obviously will be subject to

eross-examination by the government. Thus, to the extent

he is aware of information tending to undermine the

defendant’s claim, that information generally may be

elicited by the prosecutor’s questions. More importantly,

it is well-settled that once the defense gives notice that

it will assert a psychiatric defense and present expert

testimony to support it, the prosecution may obtain a

court order compelling the defendant to submit to a

government examination on that same issue. See, €.g.,

Battie v. Estelle, 655 F.2d 692, 701-02 & n.22 (5th Cir.

1981): United States v. Cohen, 530 F.2d 43, 47-48 (5th

Cir.), cert. denied, 429 U.S. 855 (1976); Karstetter v.

Cardwell, 526 F.2d 1144, 1145 (9th Cir. 1975); United

States v. Bohle, 445 F.2d 54, 66-67 (7th Cir. 1971);

United States v. Weiser, 428 F.2d 932, 936 (2d Cir.

1969), cert. denied, 402 U.S. 949 (1971); United States

v. Albright, 388 F.2d 719, 724-725 (5th Cir. 1968) ; Pope

v. United States, 372 F.2d 710, 720-21 (8th Cir. 1967)

(en banc). vacated and remanded on other grounds, 392

U.S. 561 (1968). Whether based on a theory of ‘“‘estop-

pel,” “waiver” of Fifth Amendment rights, or general

principles of “fairness” to the prosecution, the govern-

ment’s reciprocal right of access to the defendant in such

circumstances is clear. See Estelle v. Smith, supra, 451

U.S. at 465-66 (1981).°

Moreover, a variety of sanctions are available to assure

that the prosecution’s access to psychiatric testimony will

be no less meaningful than that of a defendant exercis-

ing his Ake right. Thus, for example, the defendant's

noncooperation with a psychiatrist selected by the prose-

cution could result in the barring of defense use of expert

psychiatric evidence, see, e.%., United States v. Handy,

454 F.2d 886 (9th Cir. 1971), cert. denied, 409 U.S. 846

(1972), Rule 12.2(d), Federal Rules of Criminal Pro-

cedure; prosecutorial comment to the jury on defendant’s

refusal to submit to an evaluation by a physician hired

by the government, see, e.g., Alaska Stat. § 12.45.083

(1980), Lee v. County Court, 27 N.Y.2d 432, 442-45,

2967 N.E.2d 452, 457-58, 318 N.Y.8.2d 705, 713, cert.

denied, 404 U.S. 823 (1971); or, in the most extreme

case, preclusion of the defendant’s psychiatric defense

altogether, see, @.9., United States v. Wade, 489 F.2d

258 (9th Cir. 1973). See generally Meister, Miranda On

the Couch: An Approach to Problems of Self-incrimina-

tion, Right to Counsel, and Miranda Warnings in Pre-

trial Psychiatric Examinations of Criminal De fe ndants,

11 Colum. J.L.& Soe. Probs. 403 (1975).'

¢ Estelle itself involved an examination by a psychiatrist chosen

by the prosecution to determine the defendant's competency to stan i

trial. While holding that a defendant could refuse to participate in

such an examination if the psychiatrist were free to testify as a

prosecution witness at the penalty phase of the trial, the Court

stated in dicta that a different rule would apply “[w|hen a defend-

ant asserts the insanity defense and introduces supporting psy-

chiatric testimony ...” Jd. at 465. Similarly, the Court indicated

that if a defendant wished to use psychiatric evidence on the ques-

tion of future dangerousness, he could be compelled to submit to an

evaluation by a prosecution psychiatrist on that issue as well. /d.

at 466 n.10.

7 By describing the various sanctions that have been applied in

these circumstances, we do not mean to suggest that all of them

16

The key point is that the government's opportunity to

obtain relevant psychixtric evidence, and the availability

of appropriate sanctions to assure that that opportunity

will be provided, are limited in two crucial ways: first,

access to the defendant for an examination by an expert

chosen by the government is predicated on the defendant’s

decision to assert a clinically-supported psychiatric claim

or defense; and second, the use of information obtained

in the course of that prosecution examination is restricted

to the specific psychiatric issue that the defense has intro-

duced into the case. See Estelle v. Smith, supra, 451

U.S. at 468-69 (information learned by prosecutor in

competency evaluation is not admissible at capital sen-

tencing hearing).* Of course, neither of these limitations

was observed here.

represent reasonable responses to a defendant's failure to cooperate

with a psychiatric examination conducted for the government. In

our view, the most reasonable sanction would be to preclude the

defense from introducing expert psychiatric testimony of its own.

Barring the assertion of a psychiatric defense altogether would

seem to be disproportionate and unfair. The defendant should not

be deprived of the opportunity, where feasible, to attempt to estab-

lish his defense through lay witnesses testifying concerning their

observations of defendant’s bizarre or aberrant behavior. See, e.g.,

United States v. Pickett, 470 F.2d 1255 (D.C. Cir. 1972) ; Powncy v.

State, supra. Similarly, at least in certain circumstances, permitting

prosecutorial comment cn the defendant's refusal to be examined

may be inconsistent with this Court’s admonition that capital sen-

tencing procedures must be unusually reliable. See Griffin v. Cali-

fornia, 380 U.S. 609 (1965). See also Estelle v. Smith, supra, 451

U.S. at 468 n.11.

8 See generally cases cited at note 5, supra. This second limita-

tion is subject to the possible qualification that, where a defendant

elects to take the stand, information he revealed to the government's

psychiatrists may also be used to impeach the defendant’s tesiimony.

Compare United States v. Casteneda, 555 F.2d 605 (7th Cir.), cert

denied, 434 U.S. 847 (1977), with United States v. Leonard, 609

F.2d 1163, (5th Cir. 1980). We also recognize that, when a case is

tried to a single trier-of-fact, it may be difficult, as a practical

matter, to limit the effect of certain testimony. For example, a

17

In sum, the trial court committed constitutional error

in this case by allowing a psychiatrist appointed at the

request of the defense to testify at the penalty phase

as a witness for the prosecution and, in that capacity, to

relate incriminating information bearing directly on the

jury’s decision to recommend the death penalty. By any

reasonable measure, the price thus extracted for peti-

tioner’s exercise of his right to psychiatric assistance was

so exorbitant as to deprive him of that right altogether.

Il. THE PSYCHIATRIC FUNCTION ENVISIONED IN

AKE ALSO PRECLUDES PROSECUTION ACCESS

TO THOSE PSYCHIATRISTS WHO ARE CON-

SULTED BY THE DEFENSE, BUT NOT CALLED

AS DEFENSE WITNESSES

The argument just presented is sufficient to demon-

strate that petitioner’s sentencing hearing was tainted by

constitutional error. However narrowly the Ake right

to psychiatric assistance may be construed, it must at

least prohibit prosecution access to a psychiatrist ap-

pointed to consult with the defense when the defendant

has neither asserted a psychiatric claim nor chosen to

introduce expert psychiatric testimony.

More difficult, and potentially more far-reaching, ques-

tions regarding the scope of the Ake right arise where

the defendant does interpose a plea of insanity or other

psychiatric claim, and gives notice that he will rely on

expert medical testimony to support the claim. Especially

in capital cases, a defendant in such circumstances,

prosecution witness, in disputing a defendant’s insanity claim,

may testify about certain prior antisocial behavior disclosed to him

by the defendant during the course of a psychiatric examination.

This inforn .cion might later influence the jury’s decision on the

issue of “future dangerousness” in a capital sentencing hearing

even though it would not have been independently admissible at

that hearing. Of course, none of these ancillary issues are pre-

sented here and we believe that their resolution should await the

development of a full factual record.

18

whether indigent or not, will often seek and obtain ex-

aminations by more than one psychiatrist in advance of

trial. If, for example, a defendant and his counsel con-

sult with two psychiatrists and decide to call only one

of these doctors as a witness, is the prosecution then

entitled to access to the psychiatrist who will not be

called by the defense?

Although this precise question is not raised on the

narrow facts of this case, it is a recurring problem con-

fronting trial judges in both state and federal courts

and, indeed, is likely to arise in this very litigation should

petitioner be given a retrial of the sentencing phase of

his case.” In any event, it is a question that should be

taken into account as the Court attempts, in its decision

here, to establish the proper limits of confidentiality with

respect to psychiatric experts consulted by the defense.

For these reasons, amici urge the Court to address this

closely related question in this case. As discussed below,

we conclude that the question should be answered in the

negative—that is, absent highly unusual circumstances,”

Due Process principles prohibit prosecution access to

psychiatrists who have been consulted by the defense but

® Under the Virginia death penalty statute, the jury may consider

mitigating evidence consisting of expert testimony that the crimes

were “committed while the defendant [was] under the influence of

extreme mental or emotional disturbance,” or that, at the time the

crimes were committed, “the capacity of the defendant to appreciate

the criminality of his conduct or to conform his conduct to the

requirements of law was significantly impaired.” Va. Code Ann.

§ 19,.2-264.4(B) (ii) & (iv). Thus, petitioner’s counsel on remand

will likely consult psychiatric experts on these issues, as well as

the question of petitioner’s future dangerousness. Petitioner re-

quested and obtained three psychiatric examinations in advance of

the initial trial in this case. There is every reason to expect that,

in the event of a new trial on the prosecution’s death penalty re-

quest, petitioner will again obtain multiple psychiatric consulta-

tions.

1 See note 12, infra.

19

are not called to testify as defense witnesses at trial.

Any other rule, we submit, deprives a defendant of his

right under Ake to a psychiatrist functioning in his

constitutionally-mandated consultative capacity.

The lower courts have confronted this question mainly

in the context of claims of attorney-client (and related

work-product) privilege. The majority view is that the

privilege precludes prosecution access to those psychia-

trists who have been consulted by the defense, but are

not called as defense witnesses. See, e.g., United States

». Alvarez, supra; Houston v. State, supra; People v.

Lines, supra; Pratt v. State, supra; People v. Hilliker,

supra; State v. Kociolek, supra; Pouncy v. State, supra.

Cf. United States ex rel. Edney v. Smith, supra (rule of

confidentiality is preferable as a matter of attorney-

client privilege, though not constitutionally-compelled ) .”’

Under this approach, the confidentiality of all psychiatric

examinations is not waived merely by the assertion of

a psychiatric defense and the decision to call one psychia-

trist, or some psychiatrists, to testify. Consequently, the

government may not use the uncalled psychiatrists as

prosecution witnesses; nor may the prosecution obtain the

uncalled psychiatrists’ written reports, diagnoses, or

other opinions regarding the accused. This view has been

adopted by the American Bar Association. Se¢ American

Bar Association, Criminal Justice Mental Health Stund-

ards § 7-3.3(b) (A) & (B).'

li nited States ex. rel. Edney v. Smith, supra, and Noggle +

Marshall, supra, are the only reported cases we are aware of to have

considered this precise issue from a constitutional standpoint, both

of them holding that the majority view of the scope of the attorney-

client privilege is not mandated by the Fifth or Sixth Amendments

However. these decisions predate Ake and did not analyze the issue

under the Due Process principles enunciated and applied in that

case.

12 The only circumstance in which the ABA standards would

permit prosecution access is where defense couns |, in bad faith,

20

The contrary, and minority, view is that the defense

decision to advance a psychiatric claim or defense, and

to do so with the testimony of at least one psychiatrist,

waives the privilege with respect to all other psychiatrists

consulted by the defense, thus making them fair game

for the prosecution. See, e.g., State v. Carter, supra;

People v. Edney, supra; State v. Bonds, 98 Wash.2d 1,

653 P.2d 1024 (1982). In recent years this approach

has also received the support of several commentators.

See S. Saltzburg, Privileges and Professionals: Lawyers

and Psychiatrists, 66 Va. L. Rev. 597 (1980); C. Slobo-

gin, Estelle v. Smith: The Constitutional Contours of

the Forensic Evaluation, supra.

While acknowledging that this narrow view of the

attorney-client privilege may have a chilling effect on

defense examinations, these authorities argue that the

majority approach unduly handicaps the prosecution.

Since considerable time may pass between the defendant’s

initiation of psychiatric consultations and his notification

of an intention to assert a psychiatric claim, it is argued,

the psychiatrist retained by the prosecution will not have

aecess to the defendant when his recollection of relevant

events is freshest. A related contention is that the ex-

perience gained by a defendant through consultations

with his psychiatrists will impair the validity of the gov-

ernment’s examination. Having had the benefit of sev-

has attempted to deprive the prosecution of any meaningful oppor-

tunity to meet its burden on a psychiatric issue through a strategy

of consulting virtually all available psychiatric experts in the com-

munity. See Section 7-3.3(b) (ii). Amici agree that this is an

appropriate limitation on the extent of confidentiality to be ac-

corded psychiatric experts who consult with the defense. We also

note in this regard that an expert should be unavailable to the

prosecution only if he has functioned as a bona fide consultant to

the « -fense. Defense counsel should not be permitted to engage an

expert for a perfunctory and superficial consultation solely for the

purpose of barring the government’s use of that psychiatrist as a

prosecution witness.

21

eral “friendly” examinations, it is claimed, a caiculating

defendant will be circumspect in his responses to ques-

tions put to him by the government’s expert.

Finally, these authorities argue that there is no jus-

tification for denying the prosecution access to a psy-

chiatrist who is consulted but not called by the defense

in view of the fact that the defendant cannot avoid an

examination with another psychiatrist of the prosecu-

tion’s choosing. The latter psychiatrist can ask the de-

fendant the same questions posed by the psychiatrists

chosen by the defense, and the defendant has no choice

but to answer, and to answer fully. See pages 14-15, supra.

That being the case, according to this argument, there is

no point in prohibiting prosecution access to a psychia-

tric consultant whom the defense will not call at trial.

Although this minority view has a superficial appeal,

it does not withstand scrutiny when analyzed under the

constitutional principles of this Court’s decision in Ake.

To begin with, the concern regarding timely access to

the defendant by a government-retained psychiatrist may

be adequately dealt with by measures short of permitting

the prosecution to use the defendant’s uncalled experts.

For example, the defense could be required to give no-

tice to both the court and the prosecution of its intention

to obtain a psychiatric examination. The prosecution

would then be entitied to subject the defendant to an ex-

amination with a government-retained psychiatrist con-

temporaneously with the initial defense examination. See

American Bar Association, Criminal Justice Mental

Health Standards, § 7-3.4."° This procedure also responds

18 This procedure would have to be coupled with the requirement

that the report of the government-retained psychiatrist be filed

initially with the court and not the prosecution. Until such time

as the defendant actually gives notice of an intention to assert a

psychiatric defense and to call expert witnesses on his behalf, the

defendant’s Fifth Amendment right remains intact and the govern-

ment has no claim to the information learned by the doctor or con-

22

fully to the objection that the government is denied an

unrehearsed examination if it must wait until after the

defendant has been evaluated several times by psychia-

trists who have been retained by the defense.

More fundamentally, prosecution access to psychia-

trists who are not used by the defense at trial impermis-

sibly infringes the defendant’s Ake right to a psychia-

trist functioning in a consultative capacity. Ake makes

clear that, in addition to the evaluative services discussed

in the first section of our brief, the psychiatric assistance

to which an indigent defendant is entitled includes expert

advice to aid in the “preparation and presentation” of

psychiatric defenses, 105 S. Ct. at 1097, and to provide

medical information necessary for “preparing the cross-

examination of the State’s psychiatric witnesses.” Id. at

1096. Prosecutorial access to psychiatrists who have

been consulted by the defense for this purpose creates the

grave risk of disclosure to the government of defense

counsel’s legal strategies and theories—information to

which the government has no legitimate claim.

tained in his written report. Premature disclosure of the report

also creates the risk of revealing to the prosecution evidence rele-

vant to the guilt phase of the trial (for example, where the defend-

ant is also asserting a plea of self-defense) or investigative leads.

And because the Fifth Amendment prohibits government use of

this type of information even after the defendant has entered a

plea of insanity or other psychiatric defense, see, e.g., Gibson v.

Zahradnick, supra, 581 F.2d at 78-79; United States v. Reifsteck,

supra, 435 F.2d at 1034 n.1 (8th Cir. 1976); United States v.

Alvarez, supra, 510 F.2d at 1052; Collins v. Auger, 428 F. Supp.

1079 (S.D. Iowa 1977), the report should be carefully reviewed by

the trial judge before it is made available to the prosecution. This

is the view endorsed by the American Bar Association. See ABA,

Criminal Justice Mental Health Standards § 7-3.8(a). Alternatively,

the court could bifurcate the trial of the case, making the report

available to the prosecution after the jury has found that the de-

fendant committed the actus reus, but before the jury has been

presented with evidence on insanity or other psychiatric defenses.

f9

—_O

Assume, for example, that defense counsel in a capital

case, invoking his client’s Ake right, consults a psychia-

tric expert for assistance in developing an effective cross-

examination of the prosecution’s medical witnesses on

the question of the defendant’s future dangerousness. See

Barefoot v. Estelle, 463 U.S. 880, 899 n.5 (1983); Ake,

supra, 105 $. Ct. at 1097. It is inconceivable that, sim-

ply because the psychiatrist performing this consultative

function is not called as a defense witness at trial, he

may be consulted by the prosecution and may reveal the

line of questioning that defense counsel intends to use in

cross-examination.

Nor can this problem be cured with a rule permitting

the prosecution to call the psychiatrist as its own witness,

but forbidding the prosecution from consulting with him

in advance of trial. The psychiatrist, having educated

defense counsel on medical and scientific principles rele-

vant to his client’s psychiatric claim, and having dis-

cussed those same principles in a context designed to as-

sist counsel in preparing an effective cross-examination,

cannot be permitted to defeat that strategy by appear-

ing as the prosecution witness whom defense counse! will

have to cross-examine.

There are also other instances where a_ psychiatrist,

performing the consultative function envisioned in Ake,

will be made privy to information that is well within the

ambit of protected attorney work product and therefore

should remain confidential. In the course of a consulta-

tion, for example, defense counsel may raise what he

perceives to be shortcomings or vulnerabilities in the psy-

chiatric claim that he plans to present, and may ask the

consultant for his opinion on these matters. Or the con-

sultant may suggest that a particular test or inquiry be

made—only to be advised by the attorney that there are

good reasons not to go down the path proposed.

In short, Ake entitles a defendant in a criminal case

to the assistance of a psychiatrist fulfilling a particular

24

role—a consultative role—that necessarily requires the

expert to function as a member of the defense team. In

that capacity the psychiatrist should no more be per-

mitted to consult with the prosecution, and to reveal de-

fense counsel’s strategies and theories, than one of the

attorneys representing the defendant. Cf. United States

v. Morrison, 449 U.S. 361 (1981) ; Hoffa v. United States,

387 U.S. 231, 233 (1966); Black v. United States, 385

U.S. 26 (1966) (Sixth Amendment violated where gov-

ernment intrusion into attorney-client communications

prejudices defendant through prosecutorial use of infor-

mation so derived) ."

Prosecution access to psychiatrists consulted by the de-

fense also interferes with defense counsel’s litigation

strategy in another way. Although it is possible for the

same psychiatrist to serve as a consultant to the defense

and to testify as a defense expert at trial, there may be

good reasons for defense counsel to rely on different psy-

chiatrists to perform these different functions.” Indeed,

14 For the same reasons, the prosecution should be permitted little,

if any, pretria! access to a psychiatric expert the defense does in-

tend to call as a trial witness. At most, we believe that the prosecu-

tion should be permitted to see the psychiatrist’s written report,

setting forth his findings and opinion.

15 The adversarial aspect of the consultant’s role has no place on

the witness stand. As one leading forensic psychiatrist has put it:

“When he takes the witness stand the psychiatrist becomes a

person committed to the process of truth seeking no matter how

the truth may conflict with his own ideologies. At this point the

psychiatrist should not be reluctant to reveal information that

may be adverse to his client’s interest. He should never make

any effort to embellish his testimony in a manner which leads

to even minor distortions of information.”

S. Halleck, Law In The Practice of Psychiatry, supra at 199. Dr.

Halleck notes that, properly trained, a psychiatrist can perform

both functions in a single case. He also cautions, however, that a

psychiatrist sometimes “forgets he is no longer an adversary when

he takes the witness stand [and thereby] risks becoming an inferior

witness who can easily be embarrassed or humiliated in the course

of testimony.” Ibid.

bo

or

prudent defense counsel, having the opportunity to con-

sult with more than one psychiatrist, may well seek out

an expert who is likely to dispute the merits of counsel’s

contemplated psychiatric claim. A _ psychiatrist who is

doubtful about a particular psychiatric claim may be able

to provide more meaningful assistance than a psychiatrist

who is supportive of the claim. The defendant’s attor-

ney, in other words, should not be forced to seek out the

assistance of only those psychiatrists who are thouvht

likely to render an opinion favorable to the accused. Vet,

this almost certainly will be the choice of a cautious de-

fense attorney if he knows that any psychiatrist render-

ing a less-than-favorable opinion is likely to end up

testifying against his client at trial.”

For these reasons, the Due Process right to psychiatric

assistance in criminal cases precludes government access

tO psychiatrists who have been consulted by the defense

and who, for whatever reason, are not called to testify

as defense witnesses at trial.

:

Prejudice to the defendant in this context is particularly great

where the prosecutor, in his summation or direct examination of

a psychiatrist not called by the defense, informs the jury that the

witness was initially selected by the defendant. See, e.g., Pratt

State, supra, 398 A.2d at 425 & n.4

‘7 Should the Court reject this argument, amici subm‘i that. at

a minimum, indigent defendants should be treated the same as

nonindigent defendants with respect to attorney-client privilege

rules protecting the confidentiality of consultations between a crimi-

nal defendant and the psychiatrists he consults. Thus, those juris-

dictions extending the attorney-client privilege to psychiatrists who

are consulted by the defense, but not called as witnesses by the

defense, must afford the same safeguard to indigent defendants

who obtain multiple examinations at state expense. Given the im-

portance of this protection, its availability should not be allowed to

turn on a defendant's ability to pay for psychiatric assistance.

26

Ill. IF THE PROSECUTION’S USE OF DR. PILE’S

TESTIMONY IN THIS CASE IS FOUND NOT TO

VIOLATE PETITIONER’S DUE PROCESS RIGHTS,

THAT TESTIMONY SHOULD THEN BE FOUND

TO VIOLATE PETITIONER’S FIFTH AMENDMENT

RIGHT AGAINST SELF-INCRIMINATION

We have thus far argued that the admission of Dr.

Pile’s testimony at the sentencing phase of petitioner’s

trial breached petitioner’s Due Process right under Ake

to a psychiatric expert fulfilling his constitutional role as

defense evaluator and consultant. Should the Court re-

ject this argument, however, it then follows that Dr.

Pile’s testimony should have been excluded because, on

the facts presented, it infringed petitioner’s Fifth Amend-

ment rights under the principle of Estelle v. Smith,

supra.

Estelle involved a court-ordered psychiatric examina-

tion on the question of the defendant’s competency to

stand trial in a capital case. Despite the ostensibly lim-

ited purpose of the examination, the psychiatrist later

testified as a prosecution witness at the penalty phase of

the trial and, relying on information elicited during the

competency evaluation, testified in support of the govern-

ment’s claim that the defendant posed a “future dan-

ger’—there, as here, an aggravating circumstance sup-

porting imposition of the death penalty.

The Court ruled, inter alia, that, while the defendant

could not have remained silent in a competency evalua-

tion properly restricted to that issue, once the psychia-

trist “went beyond simply reporting to the court on the

issue of competence and testified for the prosecution at

the penalty phase on the crucial issue of .. . future

dangerousness, his role changed and became essentially

like that of an agent of the State, recounting unwarned

statements made in a postarrest custodial setting.” 451

U.S. at 467 (emphasis added). Because the defendant’s

Fifth Amendment right against self-incrimination was

27

thus fully implicated, the psychiatrist’s failure to give

Miranda-type warnings in advance of the examination

precluded the psychiatric testimeny at the sentencing

phase of the trial.

In our view, the Due Process right recognized in Ake

entitles a criminal defendant to the assistance of a psy-

chiatrist who, unlike Dr. Pile in the instant case, per-

forms evaluative and consultative functions in a context

of confidentiality. Because a psychiatric examination in

those circumstances is consensual, our Due Process argu-

ments are concededly inconsistent with the view that the

psychiatric examination was subject to Fifth Amendment

safeguards. Should the Court reject those Due Process

arguments, however, we submit that, for all practical

purposes, Dr. Pile must be viewed as having functioned

as “an agent of the State” within the meaning of Estelle.

As such, his testimony at the sentencing phase should

have been prohibited because it was based entirely on

petitioner’s unwarned statements. See Battie v. Estelle,

supra, 655 F.2d at 699-703 (5th Cir. 1981).

If the prosecution may have access to a psychiatrist

consulted by the defense even when the defendant has

never asserted a psychiatric claim, and may use the psy-

chiatrist to testify on any issue at all, it follows that

no right of confidentiality whatever attaches to the psy-

chiatric consultation provided pursuant to Ake. Under

this approach a defendant’s decision to speak to a psy-

chiatrist selected by the defense is no different from a

decision to speak to a psychiatrist selected by the prose-

cution—indeed, for Fifth Amendment purposes it is the

same decision since the psychiatrist selected by the de-

fense ends up testifying for the prosecution. That deci-

sion, no less than the decision to speak with the psychia-

trist in Estelle, may not be presumed voluntary in the

absence “of procedural safeguards effective to secure the

28

privilege against self-incrimination.” Miranda v. Ar-

zona, 384 U.S. 436, 444 (1966)."*

To be sure, petitioner here was not under direct com-

pulsion to submit to an examination by Dr. Pile; the psy-

chiatric evaluation was initiated by his attorney and not

by the court, as in Estelle. However, petitioner was sub-

ject to the considerable compulsion confronted by any

defendant whose only real chance of defending against

a criminal charge is the assertion of a psychiatric de-

fense. This is at least as great as the compulsion that

obtains in a postarrest police interrogation, where warn-

ings are, of course, mandatory.

Petitioner’s Fifth Amendment right against self-in-

crimination was thus violated in this case if the Court

determines that his Due Process right to psychiatric

assistance was not. To the extent Dr. Pile was free to

recount petitioner’s inculpatory statements to the jury,

petitioner should have been alerted, in advance, to that

potential consequence of the examination.

18 Although petitioner’s counsel apparently advised him not to

discuss prior violent or criminal activity with Dr. Pile, we do not

think this general admonition was sufficient to remedy Dr. Pile’s

failure to give appropriate warnings at the outset of the examina-

tion. In Estelie the Court’s Fifth Amendment and Sixth Amend-

ment holdings were independent of each other. Thus, even if the

defendant in that case had had the assistance of counsel in advance

of the competency evaluation, the psychiatrist’s failure to give

warnings to the defendant would still have precluded the psychia-

trist’s later testimony for the prosecution on the issue of future

dangerousness. The same is true here. We believe that an appro-

priate warning about the lack of confidentiality should be given

by the psychiatrist at the time of the examination. We note in this

regard that the ethics of the psychiatric profession require such

disclosures by examining psychiatrists. See American Psychiatric

Association, Principles of Medical Ethics With Annotations Espe-

cially Applicable To Psychiatry, Section 3, Annotation 6 (1985).

29

CONCLUSION

For the foreging reasons, the Court should rule that

the admission of Dr. Pile’s testimony in the circumstances

of this case was constitutional error.

Respectfully submitted,

JOEL I. KLEIN

(Counsel of Record)

JOSEPH N. ONEK

PETER E. SCHEER

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Counsel for Amici Curiae