David Martin was accused of strangling his estranged wife to death in the presence of his children. He allegedly proceeded to shower, give his children keys and money and wait for the police to arrive at his home in Knox County, Tennessee.
Mr. Martin was indicted for first-degree murder. He filed notice of his intent to rely on the insanity defense and the court ordered a mental examination. The defendant asked the court to protect four of his fundamental rights: (1) his right to have counsel present at the examination (2) his right against self-incrimination, (3) his right to confrontation, and (4) his right to a fair trial. He also wanted to ensure that the examination was fairly administered.
The pro se defendant carried his own case before two appeals courts.
At the hearing on these requests, a psychiatrist for the Helen Ross McNabb Center testified that the presence of others during the examination would hamper the accuracy of the results. Dr. Tennison said, "[t]he person will color and change their responses, based on who is in the room." The trial court gave Dr. Tennison the authority to decide who could be present during the examination and whether video or audio taping could be used.
The psychiatrist refused to allow the presence of anyone else during the evaluation, although he did permit videotaping. Upon completion of his examination, Dr. Tennison sought permission for a clinical psychologist to conduct additional testing. The court complied, overriding the objections of Mr. Martin. The psychologist also did not allow defense counsel or experts to be present, and he refused to allow the interview to be recorded.
At trial, Mr. Martin presented the expert testimony of Dr. Kandilakas, a psychologist who treated him after the attack on his wife. Dr. Kandilakas opined that Mr. Martin met the requirements of the insanity defense, i.e., at the time of the offense, as a result of a mental disease on defect, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law. The psychologist concluded that Mr. Martin was suffering from a depressive disorder and a dissociative reaction at the time of the murder.
The defendant was convicted of the lesser offense of voluntary manslaughter and received a five-year sentence. He appealed, arguing that the court-ordered mental evaluation violated his right to counsel and his right against self-incrimination. He also insisted that the courts should exercise additional supervision and control to ensure the fairness of mental examinations and the reliability of its results. Specifically, he maintained that the court should require the examination to be monitored and recorded by defense counsel or experts and the results not be available to the prosecution until trial.
The state responded that a safeguard already existed to protect the interests of all parties. Under Tennessee law the defendant's statements made during the examination could only be used for impeachment purposes or on an issue initially raised by the defendant regarding his mental condition [See Tenn. R. Crim. P 12.2(a), (b)]. Furthermore, argued the state, a mental examination is not a "critical stage" of a criminal proceeding and the right to counsel does not apply. The presence of counsel, added the state, would limit the effectiveness of the examination and its results.
Holding: The conviction was upheld. The Court determined that there is no right to counsel during the mental evaluation and relied in part upon the narrow holding of the U.S. Supreme Court in finding the defendant entitled to consult with counsel prior to the examination because the psychiatric interview is a critical stage [See Estelle v. Smith, 451 U.S. 451, 470-71 (1981)]. The Tennessee Court did not interpret the Supreme Court's holding as extending to the right to counsel during the examination.
The Court said that several state and federal courts that had considered the "pragmatic" issues surrounding the presence of counsel at mental examinations had determined that counsels presence would impede or inhibit the process. In the case at hand, the Court held that an attorney's physical presence would be in a "strictly passive, observational capacity [and] is not necessary to protect the defendant's related rights to a fair trial and to confront witnesses."
The Court took a different view of the recording of examinations, holding that "A verbatim recording . . . would enhance the integrity of the trial without the potential hindrance of allowing counsel to be present during the examination itself." Trial courts in Tennessee were given the discretion to require video or audio taping of a psychiatric examination for the purpose of assisting the defense and the prosecution in preparing for trial.
Editor's Note: After the defendant's offense, the state of Tennessee revised its definition of insanity to require defendants to prove by "clear and convincing evidence that as a result of a severe mental disease or defect, [he or she] was unable to appreciate the nature or wrongfulness of [his or her] acts." [See Tenn. Code Ann. sec. 39-11-501 (a) (Supp. 1995).]
| Robert Miller, M.D. Professor of Psychiatry University of Denver |
Dr. Miller comments: This case addresses several ongoing issues that courts have decided in a variety of ways over the years, with no consensus in sight. First, can a criminal defendant be compelled to undergo psychiatric examination? The court rejected defense arguments that such examinations violate Fifth and Sixth Amendments rights, holding that when a defendant raises a mental state defense, fairness requires that the prosecution have access to the defendant for its own psychiatric examination, as long as the information is used only to rebut defense psychiatric testimony at trial. The court stated in support of its decision that the same conclusion had been reached by "virtually every other case decided on the issue." This statement may accurately reflect case law, but not statutory law; at least 15 states provide at least a qualified "right to remain silent" during pre-trial psychiatric examinations.
Several states, however, provide significant consequences for asserting the right-either prohibiting the presentation of expert testimony by the defense (2 states), prohibiting the insanity defense altogether (4 states) or extending the length of pretrial hospitalization (2 states) [see Miller Maier Kaye, The Right To Remain Silent During Psychiatric Examination in Civil and Criminal Cases-A National Survey and an Analysis, 9 Int. J. Law & Psych. 77 1986].
The evaluator has no legitimate objection to videotaping—unless he has something to hide.
A more controversial issue for forensic clinicians is that of the presence of third parties and/or recording devices during examinations. The chief argument made by criminal defense attorneys and civil plaintiff attorneys in favor of the practice is that without such direct observation, they are unable to cross-examine the testifying expert adequately. The legal situation is more complicated than the Tennessee court suggested; while the majority of courts have reached similar conclusions barring defense counsel from psychiatric examinations, a number have not. Some have even permitted active adversarial representation during the examination.
Most psychiatrists continue to resist what they consider multiplying intrusions into their prerogatives as physicians. Patient's rights are still not truly accepted on the front lines, particularly the right to refuse treatment and patient's fight to access to her medical records. The presence of attorneys, and even taping interviews, are frequently considered just another denial of physicians' rights. While adversarial attorneys, whispering in their clients' ears during examinations, would obviously prevent a meaningful evaluation, a silent one, sitting behind the client (where facial expressions or other signals could not influence the defendant's behavior directly) should have little effect on the interview. After all, an attorney that dedicated to interfering with an examination would probably have instructed his client to be uncooperative well before the interview.
Video or audio taping interviews presents far fewer problems than having attorneys present during the interview. A growing number of psychiatrists are already videotaping their forensic interviews, either for teaching purposes, or to create a record in case their interviews are later challenged. As long as the evaluator retains a complete copy of the resulting tape, there should be no legitimate objection to its creation—unless of course the evaluator has something to hide.
