Citation 53 Cal. 4th 1112, 274 P.3d 1110, 140 Cal. Rptr. 3d 113
Maldonado v. Super. Ct.
Filed 4/23/12
IN THE SUPREME COURT OF CALIFORNIA
REYNALDO A. MALDONADO,
Petitioner,
S183961
v.
Ct.App. 1/5 A126236
THE SUPERIOR COURT OF SAN
MATEO COUNTY,
San Mateo County
Respondent;
Super. Ct. No. SC065313
THE PEOPLE,
Real Party in Interest.
____________________________________)
A criminal defendant who tenders his or her mental state as a guilt or
penalty issue waives the Fifth Amendment privilege against self-incrimination,
and the Sixth Amendment right to counsel, ― ‗to the extent necessary to permit a
proper examination of that condition.‘ ‖ (People v. Carpenter (1997) 15 Cal.4th
312, 412 (Carpenter); see Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423
(Buchanan).) In order to afford the prosecution a fair opportunity to rebut mental-
state evidence proffered by the defense, a recent amendment to California‘s
criminal-case reciprocal discovery statute (Pen. Code, § 1054.3)1 specifically
provides that when the defendant ―places in issue his or her mental state at any
phase of the criminal action,‖ the prosecution may seek and obtain a court order
1
All further unlabeled statutory references are to the Penal Code.
1
―that the defendant . . . submit to examination by a prosecution-retained mental
health expert.‖ (Id., subd. (b)(1) (§ 1054.3(b)(1).) Here we must decide what
general limits, if any, may properly be imposed on prosecutorial access to court-
ordered examinations and their results, both before and after the defendant actually
introduces mental-state evidence in the criminal trial, in order to vindicate or
protect the defendant‘s Fifth and Sixth Amendment rights.
Petitioner Reynaldo A. Maldonado faces charges of first degree murder
with a special circumstance. (§§ 187, subd. (a), 190.2, subd. (a).) In compliance
with his statutory pretrial discovery obligations, he notified the prosecution of his
intent to introduce evidence, through designated expert witnesses, that he suffers
from neurocognitive deficits as a result of childhood brain trauma or congenital
brain dysfunction. In response, the prosecution obtained an order for his
examination by a psychiatrist, a psychologist, and a neurologist chosen by the
prosecution.
Invoking his federal constitutional rights to counsel (U.S. Const.,
6th Amend.) and against self-incrimination (id., 5th Amend.), petitioner sought
various protective orders as conditions of his submission to court-ordered pretrial
mental examinations. Urging that a Fifth Amendment waiver would occur only if
and when he presented mental-state evidence at trial, petitioner sought to bar the
prosecutors from observing the examinations directly, from discussing them with
the examiners, and from otherwise learning anything about them, unless and until
he actually introduced such evidence. Even then, he proposed, prosecutors should
not have contact with the examiners, or learn anything about the examination
results, until the court first inspected the examination materials in camera to
determine what information the prosecution was entitled to receive as potential
rebuttal evidence.
2
The trial court agreed that prosecutors should not be present in the
examination room itself, but the court otherwise denied these requests. It reasoned
that the prosecution is entitled to the examination results under the reciprocal
discovery statute, and that petitioner‘s Fifth Amendment privilege is protected
despite such disclosure because the prosecution cannot make direct or derivative
use of the examinations or their results at his criminal trial, except as necessary to
rebut any mental-state evidence he introduces in his own behalf.
Petitioner sought a writ of mandate, and the Court of Appeal granted partial
relief. The majority acknowledged that the Fifth Amendment bars not mere
disclosure, but actual use, direct or derivative, of a declarant‘s compelled
utterances to convict or criminally punish that person. The majority also agreed
with the People that the prosecution need not wait to receive and evaluate the
examination results until petitioner actually presents mental-state evidence at trial.
However, the majority expressed concern that if information about the
examinations is prematurely disclosed, the prosecution may use it for purposes
prohibited by the Constitution. The majority therefore concluded that the
constitutional bar itself is not an adequate protection of petitioner‘s Fifth
Amendment privilege against self-incrimination, and that further ―prophylactic‖
measures are required.
Accordingly, the majority directed the trial court to modify its prior orders
to provide that (1) prosecutors be precluded from monitoring the examinations as
they occur in ―real time,‖ (2) pretrial access by the prosecution to the examiners
and the examination materials be prohibited until, within times specified by the
trial court, petitioner files, under seal if he desires, motions asserting privilege
objections to full or partial disclosure of any statements he made during the
examinations, whereupon (3) the court will inspect the examination materials in
camera, resolve issues of privilege, redact the materials accordingly, and disclose
3
only the remainder to the prosecution, subject to any conditions necessary to
preserve further valid assertions of privilege, and to preclude improper derivative
use.
The Court of Appeal dissenter contended at length that use and derivative
use immunity, enforced as necessary during the trial itself, are sufficient
safeguards of petitioner‘s constitutional rights. In the dissenter‘s view, the
elaborate prophylactic procedures adopted by the majority are unnecessary,
impractical, and unfair to the prosecution, and would produce needless delay in the
trial proceedings.
We agree, for the most part, with the conclusions reached by the Court of
Appeal dissent. By forcing the trial court to resolve defense claims of privilege
prior to trial, without prosecutorial access to the evidence in dispute, the Court of
Appeal majority has imposed procedures that are neither required nor justified by
the Fifth and Sixth Amendments, and are manifestly unfair to the prosecution. We
will therefore reverse the Court of Appeal‘s judgment with directions to deny the
petition for mandamus.
FACTS AND PROCEDURAL BACKGROUND
In January 2008, the San Mateo County District Attorney charged
petitioner with first degree murder and alleged a lying-in-wait special
circumstance. (§§ 187, subd. (a), 190.2, subd. (a)(15).)2 Petitioner retained three
mental health professionals to evaluate him for purposes of a possible mental-state
defense. Thereafter, in compliance with its obligations under the criminal-case
reciprocal discovery statute (§ 1054.3, subd. (a)(1)), the defense furnished the
prosecution with an outline of the mental-state evidence it intended to tender at
2
The prosecution is not seeking the death penalty.
4
trial. This included evidence that, as the result of a childhood fall, petitioner was
rendered unconscious and now suffers chronic headaches. Also provided were the
examination reports of Jeffrey Kline, Ph.D., a psychologist, Peter Cassini, M.D., a
psychiatrist, and Robert Perez, Ph.D., a neuropsychologist, indicating that
petitioner has a mildly retarded IQ and suffers moderate to severe neurocognitive
defects suggestive of acquired brain injury or congenital brain dysfunction.3
In response, the prosecution moved, pursuant to Evidence Code section
730, for an order compelling petitioner to submit to mental examinations by court-
appointed experts, including a psychologist, a psychiatrist, and a neurologist. On
August 18, 2009, the trial court granted the motion.4 On August 28, 2009,
petitioner sought a writ of mandamus/prohibition to bar the examinations. On
September 4, 2009, the Court of Appeal summarily denied the petition. Petitioner
3
These facts, undisputed by the People, are derived solely from
representations in the mandamus petition and its supporting exhibits. The sparse
record does not include the defense experts‘ reports themselves.
4
Evidence Code section 730 provides in pertinent part: ―When it appears to
the court, at any time before or during the trial of an action, that expert evidence is
or may be required by the court or by any party to the action, the court on its own
motion or on motion of any party may appoint one or more experts to investigate,
to render a report as may be ordered by the court, and to testify as an expert at the
trial of the action relative to the fact or matter as to which the expert evidence is or
may be required.‖
The prosecution‘s motion, and the court‘s order, predated the adoption of
Penal Code section 1054.3(b)(1), which now specifically provides that when a
criminal defendant places his or her mental state in issue, the prosecution may
obtain a court order ―that the defendant . . . submit to examination by a
prosecution-retained mental health expert.‖ (See further discussion in fn. 5, post.)
5
sought review, and we stayed further proceedings pending our consideration of the
petition for review. We denied review on September 23, 2009.5
Meanwhile, on August 18 and August 24, 2009, petitioner moved in the
trial court for various protective measures related to the court-ordered
examinations. These included requests that all prosecution or law enforcement
representatives be prohibited from attending the examinations, and that the
prosecution be denied all access to reports, notes, and recordings of the
examinations, and barred from all contact with the examiners themselves, until the
close of the defense case, and thereafter until the court (1) inspected the
examination materials in camera to determine whether the prosecution should have
5
The August 28, 2009, petition was based on our decision in Verdin v.
Superior Court (2008) 43 Cal.4th 1096 (Verdin). There we held that, except for
―other express statutory provisions‖ (§ 1054, subd. (e)), section 1054.3 sets forth
the exclusive scope of required reciprocal discovery in criminal cases, and that, as
then constituted, section 1054.3 made no provision for the defendant‘s compelled
submission to evaluations by prosecution mental health experts. We declined,
however, to consider the People‘s argument in Verdin that the court-ordered
examination there sought was expressly authorized by Evidence Code section 730.
We pointed out that the prosecution had not invoked this statute in seeking the
examination. Moreover, we observed, the trial court in Verdin had not itself
appointed an expert, as Evidence Code section 730 specifies, but had ordered the
defendant to submit to examination by an expert retained by the prosecution.
In response to Verdin, the Legislature added subdivision (b)(1) to section
1054.3, effective January 1, 2010. (Stats. 2009, ch. 297, § 1.) As noted above
(fn. 4, ante), this provision explicitly authorizes the prosecution to obtain a court
order for the defendant‘s examination by a prosecution-retained mental health
expert when the defendant places his or her mental state in issue. Though the
instant trial court‘s original August 2009 examination order was made under
authority of Evidence Code section 730, petitioner does not dispute before us that
the prosecution‘s selection of experts was proper under the later-enacted
provisions of section 1054.3(b)(1).
6
access to them, and (2) decided issues of admissibility at a hearing at which both
parties would have the right to be heard.6
Petitioner premised these requests primarily on his Fifth Amendment
privilege against self-incrimination. He urged that he would waive this privilege
only if, when, and to the extent he actually presented mental-state evidence in his
own behalf at the trial. Until then, he insisted, the prosecution was not entitled to
learn of the fruits of the compelled examinations, or of any statements he made to
the examiners.
The People agreed that only petitioner and the experts should be directly
present in the examination room. They also acknowledged that, if petitioner
ultimately chose not to introduce mental-state evidence at trial, evidence from the
6
These proposals were items Nos. 5, 6, 7, 8, and 10 of petitioner‘s August
18, 2009, request. As pertinent here, they provided that the court should ―[¶] 5)
. . . prohibit any district attorney, attorney general, U.S. Attorney, or special
prosecutor, or any of their law enforcement agents, including but not limited to
Daly City Police, [and the] San Mateo County Sheriff‘s Office from being present
during the conduct of any of the examinations . . . ; [¶] 6) . . . prohibit access by
any officials referred to under item 5 to any of the reports, notes, and/or recordings
of the examinations and investigations by any of the [court-appointed] experts . . .
until after the close of the defense case at the jury trial . . . , upon which the Court
will inspect, in camera, any such reports, notes, and/or recordings . . . to determine
whether the prosecution should have copies of such reports, notes, and/or
recordings; [¶] 7) . . . decide the question of admissibility of any of the evidence
adduced as a result of the work of the [court-appointed] experts . . . only after the
steps in item 6 have been completed and only upon a hearing at which both parties
have the right to be heard; [¶] 8) . . . prohibit any officials referred to under item
5 from any contact with any [court-appointed] experts . . . until after the Court‘s in
camera decision referred to in item 6 and only if the Court grants the prosecution
permission to do so; [¶] 9) . . . ; [¶] 10) . . . require the [court-appointed] experts
. . . to maintain confidentiality regarding their examinations and investigations of
[petitioner], with the . . . exception that said experts will provide the Court with
copies of their notes, reports, and recordings, immediately following the
conclusion of their work.‖
7
court-ordered examinations would not be admissible. Nonetheless, the People
urged they were entitled to monitor the examinations in ―real time,‖ and to know
the examination results in advance of trial, in order to anticipate and develop their
response in the event petitioner pursued his mental-state defense. In open court,
the prosecutor also made the representation — unchallenged by defense counsel
— that in this particular case, the prosecution already had petitioner‘s several
police statements, the results of petitioner‘s examinations by the defense experts,
and the statements petitioner had made to these experts.7 Accordingly, the
prosecutor argued, the People would gain no unfair tactical advantage by advance
access to the results of the court-ordered examinations.
The trial court agreed there was no need for prosecution representatives to
be in the examination room itself, since it appeared possible to monitor the
examination in ―real time‖ from a remote location. The court deferred a ruling on
when issues of trial admissibility should be decided. But it otherwise declined to
bar the prosecution from observing the examinations as they occurred, or from
obtaining prompt access to the examiners and their examination notes and reports.
The court agreed with the prosecution that ―[i]f you‘re going to get the reports
anyway, which you‘re entitled to under reciprocal discovery, then it doesn‘t make
much sense to preclude you from attending the actual interview.‖ The court also
noted the prosecutor‘s representation that, under the specific facts of this case, the
prosecution would not profit unfairly by obtaining advance access to the
examinations and their results, including any statements made by petitioner to the
examiners about the charged crimes.
7
None of these items is included in the record on mandamus.
8
Petitioner sought mandate. The Court of Appeal, First Appellate District,
Division Five, issued an alternative writ directing the trial court to vacate its order
denying items Nos. 5, 6, 7, 8, and 10 and to enter a new order granting those
items, or to show cause why a peremptory writ to that effect should not issue.
When the trial court declined to modify its order, the Court of Appeal stayed the
trial proceedings and scheduled the matter for argument. Thereafter, the Court of
Appeal ordered issuance of a peremptory writ of mandate directing the trial court
to implement certain protective measures.
The Court of Appeal majority agreed with the People that the Fifth
Amendment does not forbid disclosure, as such, of incriminating words a person
was officially compelled to utter, but simply prohibits use of the compelled
utterances against the declarant in a criminal case, either as direct evidence or as
an aid to discovery of other incriminating evidence (derivative use). The majority
also recognized that the reciprocal discovery statutes call for accelerated (i.e.,
pretrial) disclosure of anticipated witnesses and evidence, and observed that such
accelerated discovery does not, in and of itself, offend the Constitution.
Accordingly, the majority rejected petitioner‘s argument that disclosure to the
prosecution of his examination results, including his statements to the examiners,
must await the actual waiver of his Fifth Amendment privilege by his presentation
of mental-state evidence at trial. The majority was persuaded that such belated
disclosure would be unfair to the prosecution in its efforts to prepare a rebuttal
case, and would lead to unnecessary midtrial delay.
Nonetheless, the Court of Appeal majority concluded, certain prophylactic
measures are necessary to ensure that the prosecution does not make improper use
of any statements by petitioner to the prosecution examiners that would potentially
fall outside the scope of a limited Fifth Amendment waiver occasioned by his
presentation of a mental-state defense. The majority ruled that, while nothing
9
should preclude the prosecution from immediately learning their experts‘ ultimate
opinions and diagnoses, any prosecutorial access to petitioner‘s statements to the
prosecution examiners, or to materials containing such statements, should be
subject to a ―minor pretrial delay‖ (italics added) during which the court, after
inspecting the statements in camera, should rule on privilege objections asserted
by the defense in timely fashion, should redact the examination materials
accordingly, and only then should release them to the prosecution.
Accordingly, the Court of Appeal‘s judgment specified that, insofar as the
trial court‘s original order denied petitioner‘s requested items Nos. 5, 6, 7, 8, and
10, that order should be replaced with new provisions (1) barring the prosecuting
attorneys and their agents from observing the examinations in real time;
(2) precluding all persons present at the examinations, including the examiners,
from disclosing any statements made by petitioner therein until expressly
authorized by the court to do so; (3) allowing petitioner, ―[w]ithin a specified
amount of time after the conclusion of each examination (to be determined by the
trial court),‖ to assert, by a sealed motion if he so desires, privilege objections to
disclosure of statements he made during the examination; and (4) providing that
the court, after inspecting the materials in camera, ―shall determine if [petitioner‘s]
statements to the examiners, in whole or in part, remain subject to Fifth
Amendment privilege [and shall] redact any statements it finds to be privileged,‖
following which the court may release the balance of the examination materials to
the prosecution, subject to any conditions or limitations necessary to preserve a
valid assertion of privilege or prevent improper derivative use.
The dissenting justice first urged that extraordinary writ relief is premature
and inappropriate. Petitioner has not yet uttered any incriminating statement, the
dissent observed, and he could seek a protective order against direct or derivative
use of any such statement once the prosecutor actually learned of it. In any event,
10
the dissent asserted, if petitioner is convicted in a trial where the court has erred
prejudicially by allowing the prosecution‘s direct or derivative evidentiary use of
statements protected by the privilege, he will have an adequate remedy by appeal.
On the merits, the dissent contended vigorously that the majority‘s
prophylactic procedures are unnecessary to protect petitioner‘s Fifth Amendment
rights. The dissent reasoned that these rights are adequately safeguarded by the
immunity against use, either direct or derivative, of petitioner‘s statements against
him, except as necessary to rebut any mental-state defense he actually presents at
trial. Moreover, the dissent asserted, despite the majority‘s contrary assurances,
the procedures it has dictated will produce significant trial delay and create
―daunting‖ problems for a trial court forced to rule on petitioner‘s privilege
objections without knowing what mental-state evidence he will ultimately present.
Both petitioner and the People sought review. Petitioner urged that the
Court of Appeal had erred by allowing the prosecution even limited access to the
court-ordered examinations before he actually waives his Fifth Amendment
privilege by presenting mental-state evidence at trial. The People argued that the
Court of Appeal‘s prophylactic restrictions on such pretrial access are
unwarranted, and that pretrial mandamus relief is inappropriate in any event.
We granted the People‘s petition and denied petitioner‘s. We now
conclude that the Court of Appeal‘s judgment must be reversed with directions to
deny the petition for mandamus.
11
DISCUSSION8
1. Propriety of extraordinary relief.
The People first urge that pretrial writ proceedings to review the trial
court‘s examination order are not justified. The People argue, as did the Court of
Appeal dissent, that interim review of discovery orders is generally disfavored,
that such review is unnecessary to protect petitioner‘s Fifth Amendment privilege
against improper use of his examination statements at his criminal trial, and that if
the trial court were to allow such improper use, petitioner would have an adequate
remedy by appeal. Citing the majority opinion in the Court of Appeal, petitioner
responds that courts frequently employ extraordinary writ proceedings to review
discovery requests to ensure that the discovery itself does not infringe Fifth
Amendment rights.
We need not debate these points. Mandamus is appropriate to address
discovery issues that present novel issues of first impression and general
importance. (E.g., Williamson v. Superior Court (1978) 21 Cal.3d 829, 833;
Daly v. Superior Court (1977) 19 Cal.3d 132, 140; Oceanside Union School
Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4.) Recently, in
Verdin, supra, 43 Cal.4th 1096, we assumed without discussion that pretrial
mandamus review was a proper means to address whether a court order for the
mental examination of a criminal defendant by prosecution-retained experts,
similar to the order at issue here, was authorized by the limited and exclusive
reciprocal criminal discovery provisions of section 1054.3, as then in force. We
8
Amicus curiae briefs have been submitted on petitioner‘s behalf (1) by
California Attorneys for Criminal Justice and (2) jointly by the California Public
Defenders Association and the Public Defender of Ventura County (Ventura
County Public Defender).
12
answered ―no‖ to that question, thereby making it unnecessary to address the
federal and state constitutional issues the petitioner in that case had also raised.
In response to Verdin, the Legislature amended section 1054.3 to provide
express authority for such court-ordered examinations where the defendant ―places
in issue his or her mental state at any phase of [a] criminal action.‖ (Id.,
subd. (b)(1), (2).) The instant examination order preceded the effective date of
these amendments. However, the parties do not dispute that current section
1054.3 provides sufficient statutory support for an order requiring petitioner,
having signaled his intent to present mental-state evidence in his defense, to
submit to a mental examination by prosecution-retained experts.
This case thus presents an early opportunity to determine whether, and if
so, what, protective measures in the conduct of the examination, and in the
disclosure of its results, are necessary to protect a defendant‘s rights under the
Fifth and Sixth Amendments to the United States Constitution. The importance of
resolving such issues sooner rather than later is manifest. We have no doubt that
the Court of Appeal made proper use of this writ proceeding to address them. We
proceed to the merits of the parties‘ substantive arguments.
2. Fifth Amendment.
At the outset, the Court of Appeal and the parties appear to agree on the
following points: By presenting, at trial, a mental-state defense to criminal
charges or penalties, a defendant waives his or her Fifth Amendment privilege to
the limited extent necessary to allow the prosecution a fair opportunity to rebut the
defense evidence. Under such circumstances, the Constitution allows the
prosecution to receive unredacted reports of the defendant‘s examinations by
defense mental experts, including any statements by the defendant to the
examiners and any conclusions they have drawn therefrom. The prosecution is
also constitutionally permitted to obtain its own examination of the accused, and
13
to use the results, including the accused‘s statements to the prosecution examiners,
as is required to negate the asserted defense. If the defendant refuses to cooperate
with the prosecution examiners, the court may impose sanctions, such as advising
the jury that it may consider such noncooperation when weighing the opinions of
the defense experts. On the other hand, except for appropriate rebuttal, the
defendant‘s statements to the prosecution experts may not be used, either directly
or as a lead to other evidence, to bolster the prosecution‘s case against the
defendant. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1264; Carpenter, supra,
15 Cal.4th 312, 412-413; People v. McPeters (1992) 2 Cal.4th 1148, 1190;
People v. Coleman (1989) 48 Cal.3d 112, 151-152; People v. Williams (1988)
44 Cal.3d 883, 961 [insanity plea]; see Buchanan, supra, 483 U.S. 402, 422-423
[where defendant places mental state in issue, or otherwise requests mental
examination, prosecution may rebut defense mental case with examination
results]; Kastigar v. United States (1972) 406 U.S. 441, 453 (Kastigar) [state may
compel potentially incriminating testimony despite witness‘s invocation of Fifth
Amend. privilege, but only upon providing direct and derivative use immunity that
affords witness same protections against criminal prosecution as if he or she had
remained silent].)9
9
This bar extends at least to the prosecution‘s case-in-chief. In People v.
Pokovich (2006) 39 Cal.4th 1240, the majority concluded that when the defendant
testifies in his or her own behalf at his criminal trial, the Fifth Amendment bars
impeachment of such testimony with statements the defendant earlier made to
mental health examiners appointed by the court to determine his or her
competence to stand trial. (But see Pokovich, supra, at p. 1255 et seq. (conc. &
dis. opn. of Baxter, J.).) The majority reasoned that this rule is necessary to
protect the defendant‘s constitutional privilege against self-incrimination while
encouraging cooperation in a court-initiated competency proceeding in which the
defendant is not compelled to respond. (Pokovich, supra, at pp. 1244-1254; see
Estelle v. Smith (1981) 451 U.S. 454, 468-469 (Estelle).) Neither United States
(Footnote continued on next page.)
14
From then on, the parties‘ respective positions diverge sharply, and neither
entirely agrees with the Court of Appeal‘s holding. Petitioner urges as follows:
No limited waiver of Fifth Amendment rights will occur unless and until he
actually presents mental-state evidence in his defense at trial. In the meantime, he
may assert, and has asserted, his constitutional privilege to refuse to respond to the
prosecution examiners in ways that may incriminate him. Accordingly, the Fifth
Amendment directly excuses him from providing such responses under
compulsion unless he receives advance assurances, akin to immunity guarantees,
that the prosecution will use evidence derived from the examinations solely as
proper rebuttal to any mental evidence he ultimately presents. This can only be
accomplished, he insists, by shielding the prosecution from all access to the court-
ordered examinations or their results until he actually presents mental evidence at
trial (or, at a minimum, until ―after the close of the prosecution case-in-chief[,] but
only if the defense [then] confirms its intent to present mental health evidence‖).
On the other hand, the People insist that the Fifth Amendment does not, per
se, prohibit official compulsion to communicate information that may be
personally incriminating. Instead, they posit, the constitutional bar is simply
against the actual use of compelled self-incriminating communications to support
a criminal guilt or penalty case against a declarant who has not waived the
privilege.
(Footnote continued from previous page.)
Supreme Court nor California decisions have confronted the question, not
presented here, whether, if the accused chooses to testify at trial, his or her prior
statements during a court-ordered examination initiated by the defense‘s voluntary
decision to present mental-state evidence on the issue of guilt or penalty may be
used to impeach that testimony.
15
The People thus urge that here, as in other cases where self-incriminating
disclosures may be officially compelled despite invocation of the Fifth
Amendment privilege, petitioner‘s rights are fully protected by the rule —
understood to apply in this case — that he has full use immunity, both direct and
derivative, for any statements he makes in the examinations, except to the extent
he voluntarily waives the privilege by presenting a mental-state defense at trial.
Accordingly, the People argue, there is neither a direct constitutional mandate, nor
prophylactic justification, for further measures, such as bans or limitations on the
prosecution‘s pretrial observation of, or access to, mental examinations by its own
experts, as ordered under section 1054.3(b)(1).
The Court of Appeal majority took a third tack. It agreed that the
prosecution is entitled to some accelerated (i.e., pretrial) access to the examination
materials. However, it concluded that immunity against improper trial use, direct
or derivative, of the materials is insufficient to safeguard petitioner‘s Fifth
Amendment rights. Believing that further prophylactic measures are required, the
Court of Appeal majority ruled that, although prosecution representatives must be
barred from observing the examinations directly, recordings and reports of the
examinations may be released to the prosecution before trial, but only after the
trial court inspects them in camera, rules on petitioner‘s Fifth Amendment
privilege objections, and redacts the materials accordingly.
We are not persuaded by the approaches of petitioner or the Court of
Appeal majority. As both this court and the United States Supreme Court have
made clear, the Fifth Amendment does not directly prohibit the government from
eliciting self-incriminating disclosures despite the declarant‘s invocation of the
Fifth Amendment privilege. Absent a valid waiver of Fifth Amendment rights,
this constitutional provision simply bars the direct or derivative use of such
16
officially compelled disclosures to convict or criminally punish the person from
whom they were obtained.
Nothing convinces us that, as a general proposition, further measures are
necessary or justified to safeguard Fifth Amendment rights in the context of
pretrial court-ordered mental examinations by prosecution experts, as triggered by
a criminal accused‘s notice of intent to present a mental-state defense through his
own experts. Indeed, as we explain below, the protective procedures devised by
the Court of Appeal majority appear impractical and decidedly unfair to the
prosecution.
At the outset, we find no merit to petitioner‘s primary argument — that
because a waiver of his Fifth Amendment privilege will occur only if and when he
actually presents mental-state evidence at trial, he has, in the meantime, a direct
constitutional right to refuse to speak to court-ordered examiners unless he is
assured that all access to his statements will be withheld from prosecutors until
such a waiver occurs. This argument misconceives the Fifth Amendment as a
guarantee against officially compelled disclosure of potentially self-incriminating
information. Such is not the case.
The Fifth Amendment provides, in pertinent part, that no person ―shall be
compelled in any criminal case to be a witness against himself.‖ (U.S. Const.,
5th Amend., italics added.) The meaning of this language was extensively
discussed in Chavez v. Martinez (2003) 538 U.S. 760 (Chavez). In Chavez, a
federal civil rights action (42 U.S.C. § 1983), the plaintiff alleged that defendant
police officer had violated his Fifth Amendment right when, during a custodial
interview while the plaintiff was receiving treatment for gunshot wounds sustained
in a shootout with police, the officer extracted self-incriminating information
without providing the warning and obtaining the waiver required by Miranda v.
Arizona (1966) 384 U.S. 436. The plaintiff‘s responses to the officer were never
17
used against him in any criminal prosecution. The issue in Chavez was whether,
in the civil suit, the officer could assert the defense of qualified immunity for
discretionary official actions taken in good faith that ―[do] not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.‖ (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.)
Finding that the qualified immunity was available, six members of the
Chavez court agreed that a ―core‖ Fifth Amendment violation is completed, not
merely by official extraction of self-incriminatory answers from one who has not
waived the privilege, but only if and when those answers are used in a criminal
proceeding against the person who gave them. (Chavez, supra, 538 U.S. 760,
766-773 (plur. opn. of Thomas, J.); see id., at p. 777 (conc. opn. of Souter, J.,
joined by Breyer, J.).) As Justice Thomas explained, ―[s]tatements compelled by
police interrogations of course may not be used against a defendant at trial,
[citation], but it is not until their use in a criminal case that a violation of the Self-
Incrimination Clause occurs, see United States v. Verdugo-Urquidez, 494 U.S.
259, 264 (1990) ‗The privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal defendants. Although conduct
by law enforcement officials prior to trial may ultimately impair that right, a
constitutional violation occurs only at trial‘ . . .; Withrow v. Williams, 507 U.S.
680, 692 (1993) (describing the Fifth Amendment as a ‗ ― ‗trial right‘ ‖ ‘); id., at
p. 705 (O‘Connor, J., concurring in part and dissenting in part) (describing ‗true
Fifth Amendment claims‘ as ‗the extraction and use of compelled testimony‘
. . .).‖ (Chavez, supra, at p. 767 (plur. opn. of Thomas, J.), italics added & altered
in Chavez.) Only when statements officially coerced from a person are ―admitted
as testimony against him in a criminal case,‖ Justice Thomas observed, is that
person ―made to be a ‗witness‘ against himself in violation of the Fifth
Amendment‘s Self-Incrimination Clause.‖ (Ibid.)
18
Justice Thomas further explained that ―[i]n the Fifth Amendment context,
we have created prophylactic rules designed to safeguard the core constitutional
right protected by the Self-Incrimination Clause. [Citations.] Among these rules
is an evidentiary privilege that protects witnesses‖ who invoke their Fifth
Amendment rights ―from being forced to give incriminating testimony, even in
non-criminal cases, unless that testimony has been immunized from use and
derivative use in a future criminal proceeding before it is compelled. See
Kastigar, supra, [406 U.S.] at 453; Maness v. Meyers, 419 U.S. 449, 461-462
(1975) (noting that the Fifth Amendment privilege may be asserted if one is
‗compelled to produce evidence which later may be used against him as an
accused in a criminal action‘ . . . .).‖ (Chavez, supra, 538 U.S. 760, 770-771 (plur.
opn. of Thomas, J.), first italics added.) The rule allowing a witness to assert the
privilege prior to testifying, and to refuse to testify unless granted immunity,
Justice Thomas indicated, protects the ―core‖ Fifth Amendment privilege simply
by assuring that the witness has not forfeited the right against self-incriminating
use of his or her testimony in later criminal proceedings. (Chavez, supra, at
p. 771.)
We recently confirmed this view of the Fifth Amendment, holding that a
public employee could be threatened with, and subjected to, job discipline for
refusing, on Fifth Amendment grounds, to answer his superiors‘ questions about
his job performance despite repeated assurances from the employer that what he
said could not be used against him, directly or indirectly, in a criminal prosecution.
(Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704.) Adopting the
conclusion of Chavez that the Fifth Amendment does not prohibit official
compulsion to speak, but merely precludes the use of compelled statements in a
criminal case against the declarant, we held that in the context of a noncriminal
investigation by a public employer, the employee could be compelled to answer
19
questions about his performance of duty, even without a formal immunity
agreement, so long as he was not required to surrender the immunity conferred by
the Fifth Amendment itself against use and derivative use of his statements to
prosecute him for a criminal offense. (Spielbauer, supra, at pp. 714-730; see
Sanitation Men v. Sanitation Comm’r (1968) 392 U.S. 280, 285; Gardner v.
Broderick (1968) 392 U.S. 273, 277-279; Uniformed S.M. Ass’n, Inc. v.
Commissioner of S. of N.Y. (2d Cir. 1970) 426 F.2d 619, 626-627; see also
Adams v. Maryland (1954) 347 U.S. 179, 181.)
Here, as noted above, the parties agree that the Fifth Amendment protects
petitioner against any direct or derivative use of his statements to the prosecution
examiners, except to rebut any mental-state evidence he presents through his own
experts.10 That is all it does. Yet petitioner seeks more. As a condition of his
submission to the examinations, he proposes to exclude the prosecution from
10
To the extent petitioner and other criminal defendants are entitled, as a
prophylactic protection of their Fifth Amendment privilege, to decline to submit to
court-ordered mental examinations until they receive advance assurance of
immunity against overbroad direct and derivative use of their responses to the
examiners, we may, and we do, judicially declare such an immunity as
― ‗reasonably to be implied‘ ‖ from the statutory provision allowing the
prosecution to obtain such examinations for the limited purpose of rebutting
anticipated mental-state defenses. (People v. Arcega (1982) 32 Cal.3d 504, 520
[confirming judicial immunity against use, in prosecution‘s case-in-chief, of
accused‘s compelled statements to court-ordered competency examiners];
Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469 [same]; see Byers v.
Justice Court (1969) 71 Cal.2d 1039, 1049-1058 [as protection against potential
for violation of privilege against self-incrimination, financial responsibility law
requiring motorist involved in accident causing property damage to furnish his or
her identity to owner of damaged property must be construed to provide immunity
from direct or derivative use of such information in criminal prosecution against
motorist], vacated on other grounds in California v. Byers (1971) 402 U.S. 424
[holding that above described ―hit and run‖ statute does not implicate Fifth
Amend. concerns]; but see fn. 9, ante.)
20
observing them, and then to bar prosecutors from all access to the examiners, or to
the reports, notes, and recordings of the examinations, until he has actually
presented such defense evidence at trial. Even then, he insists, the prosecution
may only receive a version of the examination materials that the court has redacted
after an in camera inspection.
Though the Court of Appeal majority did not go quite so far, it also devised
protections beyond those the Constitution itself provides. While the Court of
Appeal majority disagreed with petitioner that prosecutors should be denied all
access to the examination materials unless and until petitioner presents mental-
state evidence at the trial itself, the majority nonetheless concluded that
prosecutors could not observe the examinations, and could obtain access to the
examination materials only under a procedure whereby the court would consider
petitioner‘s privilege objections pretrial, and would inspect and redact the
examination materials in camera, before allowing the prosecution any access to
them.
But because these protections exceed those afforded by the Constitution,
they also exceed the scope of any prophylactic assurances, ―coextensive with . . .
the [constitutional] privilege,‖ to which petitioner might be entitled before being
compelled to speak over his invocation of his Fifth Amendment rights. (Kastigar,
supra, 406 U.S. 441, 453.) ―While a grant of immunity must afford protection
commensurate with that afforded by the [constitutional] privilege, it need not be
broader.‖ (Ibid., italics added.)11 The same principle applies to the advance
assurances and protections petitioner seeks here.
11
Applying this principle, Kastigar held that one compelled to testify in a
noncriminal proceeding despite invoking the Fifth Amendment privilege is
entitled only to immunity against use of the compelled statements in a subsequent
(Footnote continued on next page.)
21
Furthermore, the United States Supreme Court has strongly indicated that
Fifth Amendment rights are not compromised by a requirement that the accused
provide the prosecution with accelerated pretrial discovery about a defense he or
she anticipates presenting in the trial itself. In Williams v. Florida (1970) 399 U.S.
78, the high court upheld a state law that required a criminal accused who intended
to present an alibi defense to disclose to the prosecution, prior to trial, where he
claimed to have been at the time of the charged offense and the names and
addresses of the alibi witnesses he intended to call; in return, the prosecution was
required similarly to disclose to the defense the witnesses it proposed to call in
rebuttal.
The defendant in Williams v. Florida had challenged the notice-of-alibi law
on due process, fair trial, and self-incrimination grounds. The high court quickly
rejected the due process and fair trial contentions. Stressing the reciprocal nature
of the parties‘ discovery obligations, the court noted, among other things, that ―the
State‘s interest in protecting itself against an eleventh-hour defense is both
obvious and legitimate‖ (Williams v. Florida, supra, 399 U.S. 78, 81), and that
―[t]he adversary system of trial is hardly an end in itself; it is not yet a poker game
in which players enjoy an absolute right always to conceal their cards until
played‖ (id., at p. 82).
As to the self-incrimination argument, the court observed that accelerated
discovery of the defendant‘s alibi defense and witnesses does not improperly
(Footnote continued from previous page.)
prosecution, not to complete ―transactional‖ immunity against prosecution itself.
As Kastigar explained, use immunity suffices to place the witness in the same
position as if he or she had provided no self-incriminating testimony. (Kastigar,
supra, 406 U.S. 441, 457, 462.) The Constitution requires no more.
22
compel him to choose between his Fifth Amendment privilege and his right to
present a defense. At trial, the court explained, the defendant would have to
decide whether to present the defense through his own witnesses and, perhaps, his
own testimony, or to remain silent and abandon the defense. Such a trial choice,
the court noted, has never been thought to violate the Fifth Amendment.
―However ‗testimonial‘ or ‗incriminating‘ the alibi defense proves to be,‖ the
court indicated, ―it cannot be considered ‗compelled‘ within the meaning of the
Fifth . . . Amendment[ ].‖ (Williams v. Florida, supra, 399 U.S. 78, 84.)
A pretrial notice-of-alibi requirement, the court stated, presents no
fundamentally different decision. ―Nothing in such a rule requires the defendant
to rely on an alibi or prevents him from abandoning the defense; these matters are
left to his unfettered choice. That choice must be made, but the pressures that bear
on his pretrial decision are of the same nature as those that would induce him to
call alibi witnesses at the trial . . . .‖ (Williams v. Florida, supra, 399 U.S. 78, 84-
85, fn. omitted.)
―At most,‖ the high court stressed, ―the rule only compelled petitioner to
accelerate the timing of his disclosure, forcing him to divulge at an earlier date
information that [he] from the beginning planned to divulge at trial. Nothing in
the Fifth Amendment privilege entitles a defendant as a matter of constitutional
right to await the end of the State‘s case before announcing the nature of his
defense, any more than it entitles him to await the jury‘s verdict on the State‘s
case-in-chief before deciding whether or not to take the stand himself.‖
(Williams v. Florida, supra, 399 U.S. 78, 85.)
If there were no notice-of-alibi rule, the court made clear, the prosecution
would be entitled to a midtrial continuance, on grounds of surprise, the moment
the defendant offered an alibi witness. The Fifth Amendment then would not
prohibit the prosecution from doing exactly what the rule allowed it to do pretrial
23
— take the witness‘s deposition and prepare a rebuttal. (Williams v. Florida,
supra, 399 U.S. 78, 85-86.) ―[I]f so utilizing a continuance is permissible under
the Fifth . . . Amendment[ ], then surely the same result may be accomplished
through pretrial discovery, as it was here . . . .‖ (Id., at p. 86.)12
In Woods v. Superior Court (1994) 25 Cal.App.4th 178, the Court of
Appeal applied the Williams v. Florida analysis to conclude that the defense
obligation to provide pretrial discovery of the results of ―mental examinations . . .
which the defendant intends to offer in evidence at the trial‖ (§ 1054.3,
subd. (a)(1), italics added) does not violate the Fifth Amendment. The Court of
Appeal reasoned that, as with the notice-of-alibi evidence at issue in Williams v.
Florida, mere accelerated disclosure of mental-state evidence the defendant plans
to introduce at trial (but may ultimately decide to forgo) cannot be deemed
compelled self-incrimination prohibited by the constitutional provision. (Woods,
supra, at pp. 185-186.)
12
In Wardius v. Oregon (1973) 412 U.S. 470, the high court decided a
question left open in Williams v. Florida, supra, 399 U.S. 78, ruling that the due
process clause prohibits the state from requiring pretrial notice of an alibi defense
and witnesses when the state is not required to provide reciprocal discovery to the
accused. Petitioner raises no such due process issue here, nor could he. Section
1054.1 requires the prosecution to disclose to the defendant or his attorney ―[t]he
names and addresses of persons the prosecutor intends to call as witnesses at trial
(id., subd. (a)), and ―[r]elevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor intends to call at the
trial, including any reports or statements of experts made in conjunction with the
case, including the results of physical or mental examinations . . . which the
prosecutor intends to offer in evidence at the trial‖ (id., subd. (f)). These
provisions afford the accused reciprocal discovery of the prosecution‘s intended
rebuttal witnesses and their statements, sufficient to satisfy the due process
concerns addressed in Wardius. (People v. Gonzalez (2006) 38 Cal.4th 932, 955-
957; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375-377 (Izazaga).)
24
Similar considerations apply in the case before us. Having given notice,
under his reciprocal discovery duties, of his intent to present a mental-state
defense, petitioner is obliged to submit to an examination by prosecution-retained
experts. However, he retains the ―unfettered choice‖ whether to actually present
such a defense at trial. If he decides to abandon the defense, any self-
incriminating results of the examinations cannot be introduced or otherwise used
against him. On the other hand, by electing to present it, he will waive his
privilege against self-incrimination to the extent necessary to support his claim
and allow fair rebuttal. Forcing him to this choice does not offend the
Constitution. If he decides to go forward with the defense, and is thus exposed at
trial to self-incriminating direct or rebuttal evidence, that exposure cannot be
deemed ―compelled‖ within the meaning of the Fifth Amendment.
If there were no advance disclosure and examination requirement, the Fifth
Amendment would not preclude the prosecution from obtaining a midtrial
continuance when petitioner proffered his defense, and from then requiring him to
submit to examination by prosecution experts as a means of obtaining rebuttal
evidence. Insofar as section 1054.3(b)(1) merely accelerates the timing of the
examinations, and the disclosure of their results, in order to avoid such midtrial
surprise and delay, it similarly does not imperil his constitutional privilege.13
13
In Izazaga, supra, 54 Cal.3d 356, we addressed a claim, among others, that
the reciprocal discovery statute violates the Fifth Amendment guarantee against
compelled self-incrimination by requiring the defendant to provide the
prosecution, not only with the names and addresses of witnesses, other than the
defendant, that he or she intends to call at trial, but also with ―any relevant written
or recorded statements of those persons.‖ (§ 1054.3, subd. (a)(1), italics added.)
We agreed with the petitioner that this broad statutory demand for the
―statements‖ of intended defense witnesses does not satisfy the ―accelerated
timing‖ doctrine endorsed in Williams v. Florida by merely ―forcing [the accused]
to divulge at an earlier date information that [he or she] from the beginning
(Footnote continued on next page.)
25
(Footnote continued from previous page.)
planned to divulge at trial‖ (Williams v. Florida, supra, 399 U.S. 78, 85), because
some witness statements whose disclosure is required by section 1054.3,
subdivision (a)(1) might never be offered at trial. (Izazaga, supra, at p. 367.)
However, we explained, the statements of third party witnesses, as demanded by
the statute, do not, in any event, meet one of the four tests for incriminatory
statements protected by the Fifth Amendment — i.e., that they be
―(i) ‗incriminating‘; (ii) ‗personal to the defendant‘; (iii) obtained by
‗compulsion‘; and (iv) ‗testimonial or communicative in nature‘ . . .‖ (Izazaga,
supra, at p. 366) — because the statements of persons other than the accused ―are
not . . . ‗personal to the defendant‘ ‖ (id., at p. 367).
Of course, the recordings and reports of court-ordered mental examinations
are likely to contain, or to mention, statements by the accused to the examiners.
Depending on the exact mental-state defense ultimately presented (if any), at least
some of these ―personal‖ statements by the defendant might ultimately not become
defense or rebuttal evidence at trial. But that circumstance is not fatal to our
analysis in this case. In the first place, our discussion in Izazaga of the
―accelerated timing‖ analysis in Williams v. Florida, supra, 399 U.S. 78, was
dictum, since, in Izazaga, we found other grounds to reject the Fifth Amendment
challenge presented there.
In the second place, Izazaga‘s analysis of the ―accelerated timing‖ point
may have conceded too much by distinguishing Williams v. Florida too closely.
In applying its ―accelerated timing‖ rationale, the Williams v. Florida court
assumed that the proper purpose of the Florida statute requiring an accused to
provide pretrial discovery of the names and addresses of potential alibi witnesses
was to allow the prosecution, ―prior to trial,‖ to ―take the deposition[s] of the
witness[es] and find rebuttal evidence.‖ (Williams v. Florida, supra, 399 U.S. 78,
86, italics added.) Yet the court expressed no concern that some of those potential
alibi witnesses, or some of the statements obtained by the prosecution from them,
might not figure in the actual trial. On the contrary, as a central tenet of its
analysis, the court stressed that, despite his or her pretrial disclosure obligation,
the accused could later decide to abandon the proposed alibi defense entirely.
In the third place, even if a defendant‘s statements to prosecution mental
examiners are incriminatory, testimonial, compelled, and personal —thus
satisfying the four Fifth Amendment criteria noted by Izazaga — our dictum in
that decision regarding Fifth Amendment limits on pretrial disclosure does not
directly apply to the instant circumstances. In Izazaga we confronted a facial Fifth
(Footnote continued on next page.)
26
In an aside, petitioner urges that the reciprocal discovery law itself
guarantees his Fifth Amendment right to withhold from the prosecution his
potentially self-incriminating statements to prosecution examiners unless and until
he waives the constitutional privilege by presenting mental-state evidence at trial.
Petitioner points to section 1054.6, which specifies that a defendant is not required
to disclose, inter alia, ―any materials or information which . . . are privileged
pursuant to an express statutory provision, or are privileged as provided by the
Constitution of the United States.‖ As is plain from its language, however, section
1054.6 merely protects those ―privilege[s]‖ the Constitution or statutes themselves
afford, and thus imposes no broader restrictions on pretrial discovery than the
Constitution, or the statutes defining privileges, otherwise require. As we have
seen, the Fifth Amendment does not provide a privilege against the compelled
―disclosure‖ of self-incriminating materials or information, but only precludes the
use of such evidence in a criminal prosecution against the person from whom it
(Footnote continued from previous page.)
Amendment challenge to statutory requirements for pretrial disclosure. We had no
occasion in Izazaga to address specific situations such as that presented here,
where the defendant has given notice of an anticipated waiver of his or her Fifth
Amendment privilege.
Finally, as explained elsewhere in this opinion, the prosecution‘s pretrial
access to materials derived from mental examinations conducted under section
1054.3(b) does not contravene the constitutional privilege for another reason that
has become clearer since Williams v. Florida and Izazaga were decided. This
reason is that the Fifth Amendment does not directly prohibit official compulsion
to provide ―testimonial‖ disclosure of personally incriminating information; it
merely bars the use, direct or derivative, of such a compelled disclosure in a
subsequent criminal prosecution against the person from whom it was obtained.
27
was compelled. Accordingly, nothing in section 1054.6 exempts the results of the
prosecution examinations from pretrial discovery.14
Nor is our conclusion altered by consideration of Evidence Code section
940 (not cited by petitioner or the Court of Appeal majority), which provides that
―[t]o the extent that such privilege exists under the Constitution of the United
States or the State of California, a person has a privilege to refuse to disclose any
matter that may tend to incriminate him.‖ (Italics added.) As its language
suggests, this statute ―does not determine the scope of the privilege against self-
incrimination,‖ its exceptions, or the circumstances of its waiver; those matters are
determined by the federal and state Constitutions themselves ―as interpreted by the
courts.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code
(2009 ed.) foll. § 940, p. 283.) To the extent the Fifth Amendment provides no
14
Two Court of Appeal decisions, Rodriguez v. Superior Court (1993)
14 Cal.App.4th 1260 (Rodriguez) and Andrade v. Superior Court (1996)
46 Cal.App.4th 1609, have held that section 1054.6 absolves the defendant from
disclosing, prior to trial, the otherwise discoverable written or recorded statement
of an expert witness he or she intends to call (§ 1054.3, subd. (a)(1)) if the
statement includes or discusses communications from the defendant to the expert
that are protected by the statutory attorney-client privilege. This privilege, unlike
that provided by the Fifth Amendment, is one of true confidentiality. Unless and
until waived, it protects against any and all disclosure of most communications
from a client to his or her lawyer, or to a third person to whom the communication
is necessary for ―accomplishment of the purpose for which the lawyer is
consulted.‖ (Evid. Code, § 952; see also Cal. Law Revision Com. com., 29B
pt. 3A West‘s Ann. Evid. Code (2009 ed.) foll. § 952, p. 307 [privilege covers
client‘s disclosures to expert consultant, such as physician, for purposes of
assisting counsel in advising client].) But neither the attorney-client privilege, nor
any other privilege of true confidentiality, is at issue here. Petitioner has never
claimed that his examination by prosecution experts might involve the disclosure
of private communications to his counsel, as to which confidentiality has not been
waived, or of attorney work product, and the Court of Appeal majority did not
devise its prophylactic measures with those issues in mind.
28
absolute privilege against disclosure of potentially self-incriminating information,
neither does Evidence Code section 940.
In determining that prophylactic measures, including provisions for delayed
and redacted disclosure of the examination materials, are nonetheless necessary to
protect petitioner‘s Fifth Amendment rights, the instant Court of Appeal majority
expressed two general constitutional concerns about court-ordered pretrial
examinations by prosecution experts.
First, the majority posed the problem of keeping the examinations
themselves strictly relevant to the mental-state defense petitioner intends to
present, and thus within the terms of the limited Fifth Amendment waiver such a
defense would entail. For example, the majority suggested, unless this intended
defense relates to the facts and circumstances of the charged crimes, or to the
accused‘s feelings and attitudes about the crimes, questions on these subjects by
the prosecution examiners may infringe upon petitioner‘s Fifth Amendment rights.
(Citing, e.g., U.S. v. Johnson (N.D. Iowa 2005) 383 F.Supp.2d 1145, 1154-1163
(Johnson) [prosecution experts‘ right to ask questions about charged crime
depends on the questions‘ relation to specific mental defense accused intends to
offer]; Traywicks v. State (Okla.Crim.App. 1996) 927 P.2d 1062, 1063-1064
[where accused raised mental defect and alcoholism as defenses, and did not
discuss crimes with defense examiners, defendant did not have to answer crime-
related questions during court-ordered mental examination].)
The Court of Appeal majority disclaimed any attempt, on the incomplete
record before it, to delineate the proper scope of questioning by the court-
appointed prosecution experts in this case. Nonetheless, the majority ruled that,
once the court-ordered examinations are concluded, ―the permissible scope of
disclosure‖ to the prosecution must depend on whether particular information
29
from the examinations is ―necessary to render a reliable and informed opinion on
the mental condition issue raised by [petitioner].‖ (Italics added.)
Second, the Court of Appeal majority worried that unless the examination
materials are purged of all Fifth Amendment-privileged information before their
release to the prosecution, they may be used to seek out other evidence of
petitioner‘s guilt — evidence unrelated to rebutting his mental-state defense — for
presentation at his trial. Rather than burden petitioner, and interrupt the trial, with
later litigation over whether such derivative use of the examination materials has
led to the prosecution‘s presentation of ―forbidden fruit,‖ the Court of Appeal
majority concluded that it is better, in the first instance, to limit the prosecution‘s
opportunity to exploit the examinations beyond their proper purpose.
We do not believe these concerns justify the measures devised by the Court
of Appeal majority — measures that may seriously undermine the prosecution‘s
fair opportunity to rebut a mental-state defense proffered by petitioner at trial. In
the first place, the Court of Appeal majority‘s procedures require the trial court to
resolve petitioner‘s privilege claims before it has heard his actual mental-state
case, as presented at the trial itself. Forced to work with incomplete information
in advance of trial, the court risks deciding the privilege issues erroneously, and
may wrongly rule that portions of the examinations are inadmissible, even though,
as it later turns out, the prosecution could properly have used them to rebut the
ultimate defense evidence.
This danger is greatly compounded because the Court of Appeal majority‘s
ruling would unfairly deny the prosecution all access to its potential rebuttal
evidence until after the trial court has ruled on petitioner‘s claims of privilege.
Hence, the prosecution would be deprived of the opportunity to litigate the
privilege issues with full knowledge of the evidence in dispute, and prosecutors
would never know what potentially useful rebuttal evidence, obtained by their own
30
experts pursuant to court order, had been kept from them. The absence of a fully
informed, two-sided debate on the Fifth Amendment privilege issues raised by the
court-ordered examinations constitutes an additional, and substantial, obstacle to
their fair and accurate resolution.
The Court of Appeal majority suggested that one-sided pretrial redaction
procedures, such as the one it ordered, are neither unprecedented nor beyond the
competence of trial courts. But such procedures are usually employed to protect
privileges of true confidentiality — i.e., rights which, unless waived or otherwise
limited, preserve particular information from all compelled disclosure. (See, e.g.,
In re Lifschutz (1970) 2 Cal.3d 415, 437, fn. 23 [in camera review to determine
scope of patient-litigant exception to psychotherapist-patient privilege]; Evid.
Code, §§ 915, subd. (b) [in camera review of allegedly privileged materials where
necessary to rule on work-product or other nondisclosure privileges limited by
requirements of justice], 1045, subd. (b) [in camera review of confidential peace
officer personnel records to rule on ―relevance‖ exception for complaints,
investigations, or discipline against officer].) If information entitled to true
confidentiality is mistakenly disclosed, the disclosure itself breaches the privilege,
the ―cat is out of the bag,‖ and the damage cannot be undone. Careful advance
screening may be the only means of guarding against this danger.
By contrast, the Fifth Amendment privilege against self-incrimination does
not target the mere compelled disclosure of privileged information, but the
ultimate use of any such disclosure in aid of a criminal prosecution against the
person from whom such information was elicited. Advance redaction is not the
only, or even the best, means of safeguarding this privilege. That is especially true
where, as here, the screening court must attempt to resolve complicated issues
about partial waivers of the privilege that will occur only if, when, and to the
extent a particular defense is presented in the trial itself. Preservation of the
31
privilege against self-incrimination does not require that trial courts be taxed with
such difficult and uncertain duties.15
Nor are we persuaded by the Court of Appeal majority‘s efforts to prevent
the prosecution‘s use of ―tainted‖ evidence derived from the examinations. The
pretrial screening and redaction procedures devised by the Court of Appeal
majority stem from an unjustified assumption that, absent such redaction, the
prosecution will exploit the examination materials for improper purposes. One
consequence of this misguided approach, as noted above, is a substantial danger
that the redaction process, conducted without full and fair participation by the
prosecution, and before the defense has actually presented its mental-state case at
trial, will be overbroad, and will thus leave the prosecution with insufficient
information to prepare a legitimate rebuttal case.
Generally, therefore, the proper balance between the competing interests is
best maintained by resolving Fifth Amendment privilege issues arising from
section 1054.3(b)(1) mental examinations after the prosecution has obtained
unredacted access to the examination materials. Fair procedures are available to
ensure that a defendant‘s Fifth Amendment rights are not infringed at the trial by
prosecutorial misuse of these materials. For example, once the prosecution has
received them, the trial court is free to entertain a defense motion in limine to limit
15
Section 1054.3(b)(1) actually includes a preexamination screening
provision designed to help keep court-ordered examinations by prosecution-
retained experts within relevant bounds. Subdivision (b)(1)(B) provides that
―[t]he prosecuting attorney shall submit a list of tests proposed to be administered
by the prosecution expert to the defendant . . . . At the request of the defendant
. . . , a hearing shall be held to consider any objections raised to the proposed tests
before any test is administered. Before ordering that the defendant submit to the
examination, the trial court must make a threshold determination that the proposed
tests bear some reasonable relation to the mental state placed in issue by the
defendant . . . .‖
32
their use at trial. If the defense desires such pretrial assurances against improper
use, it must, of course, provide the court, and the prosecution, with the details of
its anticipated mental-state defense sufficient to permit fully informed argument
and resolution of the privilege issues. Both parties, with full access to the
examination materials, can then debate how those materials may apply as fair
rebuttal to this defense. The court can issue all appropriate protective orders
against improper use, both direct and derivative, of evidence derived from the
examinations.16
Alternatively, the defense can raise its privilege arguments at the trial itself.
Once the defendant has presented his or her mental-state evidence, and the
prosecution commences its rebuttal case, the defense can raise specific objections
to particular evidence from the section 1054.3(b)(1) examinations the prosecution
seeks to introduce. At this stage, the court is in the best possible position to
determine whether particular rebuttal evidence proffered by the prosecution
exceeds the scope of the defendant‘s Fifth Amendment waiver.
Moreover, the cases have developed a well-established framework for
resolving ―forbidden fruit‖ issues at trial. Under this scheme, if the defendant
claims that all or some portion of the prosecution‘s case was obtained by
constitutionally improper means, the defendant ―must go forward with specific
evidence demonstrating taint,‖ after which the government ―has the ultimate
burden of persuasion to show that its evidence is untainted.‖ (Alderman v. United
States (1969) 394 U.S. 165, 183 [evidence obtained by illegal search]; see, e.g.,
16
As with many limine rulings on the admissibility of evidence, the court‘s
pretrial privilege determinations necessarily would be preliminary, and must be
subject to reconsideration if the circumstances at trial differ significantly from
those anticipated at the time of the motion.
33
U.S. v. Hall (5th Cir. 1998) 152 F.3d 381, 399, cert. denied sub nom. Hall v. U.S.
(1999) 526 U.S. 1117 (Hall) [evidence derived from court-ordered psychiatric
exam]; see also U.S. v. Allen (8th Cir. 2001) 247 F.3d 741, 773-774, judgment
vacated and cause remanded on other grounds sub nom. Allen v. U.S. (2002)
536 U.S. 953 (Allen) [same].)17
17
Where, in one proceeding, a witness has provided self-incriminating
testimony pursuant to a grant of immunity, then is later prosecuted on related
charges, he or she need only point to the earlier immunized testimony in order to
shift to the prosecution ―the heavy burden of proving that all of the evidence it
proposes to use was derived from legitimate independent sources.‖ (Kastigar,
supra, 406 U.S. 441, 461-462; see also Murphy v. Waterfront Comm’n (1964)
378 U.S. 52, 79, fn. 18.) In such a case, the previously immunized witness is
being prosecuted, on matters related to his or her immunized testimony, by
officials who have no legitimate basis to possess or use that testimony. The
suspicions aroused by such a situation may justify a broad presumption of
improper use. In the instant case, by contrast, there is nothing presumptively
improper about the prosecution‘s access to the results of its own experts‘ mental
examinations of petitioner, conducted pursuant to court order. The prosecution
may use those results, including petitioner‘s statements to the examiners, as
necessary to rebut any mental-state defense he voluntarily presents. Under these
circumstances, it is doubtful that mere pretrial disclosure to the prosecution of the
unredacted examination results should force the prosecution to justify the
independent basis for its entire case. (See, e.g., U.S. v. Stockwell (2d Cir. 1984)
743 F.2d 123, 126-127 [prosecutors‘ direct observation of court-ordered insanity
examination would not, without more, require prosecution to prove independent
basis for its evidence].)
In any event, the scope of legitimate dispute about the source of
prosecution evidence seems sharply reduced where, upon probable cause, an
indictment or information has already been filed against the accused, reciprocal
discovery is already under way, and the defendant has given notice of intent to
present a mental-state defense, before the prosecution obtains the court-ordered
examinations that might give rise to ―forbidden fruit.‖ Moreover, the subject
matter of the examinations is confined to the accused‘s mental state at the time of
the charged crimes. While this issue may sometimes involve statements by the
accused to the examiners about the crimes themselves, often it will not. Contrary
to the speculation of the Court of Appeal majority, we are not convinced that
midtrial claims of tainted evidence arising from court-ordered mental
(Footnote continued on next page.)
34
Finally, current rule 12.2 of the Federal Rules of Criminal Procedure (rule
12.2), cited by petitioner and the Court of Appeal majority, does not persuade us
to contrary conclusions. Before 2002, as now, rule 12.2 provided that a defendant
who intends to present an insanity defense, or a mental-state defense bearing on
guilt, must notify a government attorney, whereupon the government may move
for a court-ordered mental examination. Then, as now, the rule further specified
that the government may not make direct or derivative evidentiary use of such an
examination except to rebut mental-state evidence actually presented by the
defendant. (Fed. Rules Crim.Proc., former rule 12.2(a)-(c), 18 U.S.C. (1994 ed.)
p. 749.)
The rule was amended in 2002 to authorize a similar court-ordered mental
examination when the accused in a capital case provides required notice of an
intent to present mental-state evidence on the issue of punishment. The amended
rule further declares that the results of any such examination related solely to
penalty ―must be sealed and must not be disclosed to any attorney for the
government or the defendant‖ until after he or she is found guilty and thereafter
confirms an intent to present mental-state evidence at the penalty trial. (Fed.
Rules Crim.Proc., rule 12.2(c)(2), 18 U.S.C.; see id., rule 12.2(b).)18
(Footnote continued from previous page.)
examinations will present serious and widespread obstacles to the efficient
conclusion of the trial proceedings.
18
For California purposes, we have held that, while the requirements of
timely reciprocal pretrial discovery, as set forth in section 1054.3, apply to the
penalty phase of a capital case, the trial court has discretion to delay prosecution
discovery of defense penalty evidence until after conclusion of the guilt trial.
(People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1239.)
35
This ―seal and gag‖ provision was intended to avoid the consumption of
time and resources that might arise if the government ―obtains early access to the
accused‘s statements‖ and then is ―required to show that it has not made any
derivative use of that evidence.‖ (Com. Notes on Rules—2002 Amendment, Fed.
Rules Crim.Proc., 18 U.S.C. (2006 ed.) foll. rule 12.2, p. 71.)19 Notably, however,
the amended rule only delays the government‘s access to court-ordered pretrial
mental examinations bearing solely on the issue of penalty in a capital case, and
does so only until the guilt trial is complete and the defendant confirms an intent to
proceed with mental-state evidence at the penalty phase.
The competing interests may justify the limited restrictions imposed by
amended rule 12.2. Depending on the verdict at the guilt phase of a capital trial,
the case may never proceed to a penalty phase. Under such circumstances, it may
not be unfair to delay the prosecution‘s discovery of potentially incriminating
penalty evidence —evidence for which the prosecution has no legitimate need or
use at the guilt phase — until the need for a penalty trial becomes clear.
19
Prior to the 2002 amendment of rule 12.2, several federal courts, concerned
about the government‘s potential improper use, on the issue of guilt, of statements
by capital defendants during court-ordered mental examinations pertinent only to
penalty, had similarly specified that the government should have no access to
information about such examinations until after the defendant‘s conviction at the
guilt phase. (E.g., U.S. v. Minerd (W.D.Pa. 2002) 197 F.Supp.2d 272, 278; U.S. v.
Edelin (D.D.C. 2001) 134 F.Supp.2d 45, 55; U.S. v. Beckford (E.D.Va. 1997)
962 F.Supp. 748, 764; U.S. v. Haworth (D.N.M. 1996) 942 F.Supp. 1406, 1408;
U.S. v. Vest (W.D.Mo. 1995) 905 F.Supp. 651, 654.) However, other courts have
seen no necessity for such restrictions, finding sufficient Fifth Amendment
protection in the normal trial procedures for resolving claims of tainted evidence.
(Hall, supra, 152 F.3d 381, 399; see Allen, supra, 247 F.3d 741, 773-774;
Phillips v. Araneta (Ariz. 2004) 93 P.3d 480, 483-484 [federally devised ―seal and
gag‖ procedures generally not required even where penalty-specific prosecution
mental examinations precede defendant‘s conviction].)
36
Even so, nothing in amended rule 12.2 bars the government from receiving
penalty-specific examination results in advance of the penalty trial itself, so that it
has ample time to prepare a rebuttal to the defense‘s anticipated penalty case.
Moreover, the 2002 amendment to rule 12.2 placed no limits on the government‘s
right to pretrial discovery of mental-examination evidence pertinent to the issue of
guilt. There, the balance is altered; a trial on that issue is certain, and the
defendant has already indicated his or her intent to defend the pending charges
with mental-state evidence. In this situation, imposing delay on prosecutorial
access to evidence that might rebut such a defense is neither fair nor appropriate.
(See, e.g., U.S. v. Taveras (E.D.N.Y. 2006) 233 F.R.D. 318, 322; State v. Martin
(Tenn. 1997) 950 S.W.2d 20, 24-25.)20
Nor does rule 12.2 provide for advance screening and redaction of the
examination materials before they are released to the prosecution for use in
rebuttal. As explained above, a pretrial screening procedure that occurs before the
accused has fully revealed his or her mental-state defense, and without
prosecutorial access to the evidence in dispute, creates the danger of overbroad
20
Amici curiae California Public Defenders Association and Ventura County
Public Defender invite our attention to ―firewall‖ procedures adopted by some
federal courts under the ―seal and gag‖ provisions of amended rule 12.2, as
applicable to capital penalty evidence. Under these procedures, advance
prosecutorial access to the results of court-ordered mental examinations pertinent
only to sentencing is limited to ―firewall‖ attorneys or ―taint teams,‖ prosecutors
otherwise unconnected to, and insulated from, the criminal case, who are
appointed solely to manage the examinations. (See, e.g., Johnson, supra,
362 F.Supp.2d 1043, 1084; U.S. v. Sampson (D. Mass. 2004) 335 F.Supp.2d 166,
244-245.) But no sound reason appears to apply such procedures where, as here,
the prosecution requires timely access to the examinations to prepare its rebuttal to
anticipated defense evidence on the issue of guilt.
37
restrictions on the prosecution‘s access to evidence it needs, and to which it is
entitled, to rebut the case actually presented.
For all these reasons, we are persuaded that neither the Fifth Amendment
right against self-incrimination, nor prophylactic concerns about the protection of
that right, justify precluding the prosecution from full pretrial access to the results
of mental examinations by prosecution experts conducted, pursuant to section
1054.3(b)(1), for the purpose of obtaining evidence to rebut a mental-state defense
the defendant has indicated he or she intends to present on the issue of guilt. We
conclude that the Court of Appeal majority erred in ordering such restrictions in
this case.21
3. Sixth Amendment.
In a single paragraph of his brief on the merits, petitioner urges that
advance prosecution access to the examination materials would also violate his
Sixth Amendment right to counsel by making prosecutors privy to the information
petitioner and his counsel must review in order to decide whether to present a
mental-state defense. Though he occasionally referred below to the Sixth
Amendment, he never made an argument even as developed or coherent as that
presented here. The Court of Appeal majority concluded that petitioner‘s ―Sixth
Amendment objections are obviated or adequately addressed by the ability of the
defense to monitor the examinations, and to interpose timely objections to
disclosure of statements which [petitioner] may make.‖
21
We conclude only that there appears no general constitutional or
prophylactic reason to impose the access restrictions proposed by petitioner or
adopted by the Court of Appeal majority. Nothing we say here is intended to
suggest that a trial court may not address specific, as-yet-unforeseen problems that
might arise in the course of particular examinations.
38
Petitioner‘s argument is, in any event, unmeritorious as presented here.
The very purpose of mental examinations ordered by the court under section
1054.3(b)(1) is to provide the prosecution with a fair opportunity to rebut mental-
state evidence the defense has already indicated it intends to present. They are not
analogous to confidential consultations between the defendant and his or her
attorney, from which prosecutors must be excluded. As we long ago made clear,
such examinations do not violate a represented defendant‘s right to counsel so
long as counsel is notified in advance of examination appointments and their
purpose, and has the opportunity to consult with the client before they occur.
(In re Spencer (1965) 63 Cal.2d 400, 412.) Nothing in United States Supreme
Court cases suggests that more is required. (See Powell v. Texas (1989) 492 U.S.
680, 685; Satterwhite v. Texas (1988) 486 U.S. 249, 254-255; Buchanan, supra,
483 U.S. 402, 424-425; Estelle, supra, 451 U.S. 454, 471.)22
22
We note that portions of the trial court‘s order left undisturbed by the Court
of Appeal majority provide that defense counsel (1) must receive reasonable
notice of when examinations are to occur, (2) may, along with a defense expert,
monitor the examinations in real time, and (3) must have prompt postexamination
access to all examination materials.
39
CONCLUSION
The judgment of the Court of Appeal is reversed with directions to deny the
petition for mandamus.
BAXTER, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
40
CONCURRING OPINION BY LIU, J.
The court‘s opinion today holds that neither the Fifth Amendment nor the
Sixth Amendment requires trial courts, as a general rule, to impose protective
measures when the prosecution seeks to have the defendant examined by the
prosecution‘s proposed expert to rebut a defendant‘s asserted mental health
defense. I agree that such protections are not required in this case.
However, the court‘s opinion leaves the window open for trial courts to
impose protections as necessary to avoid misuse of such examinations in a
particular case. (Maj. opn., ante, at p. 38, fn. 21.)
In this case, the trial court found no need for protections beyond the general
prohibition that the prosecution may not make direct or derivative use of the fruits
of the examination. Here, the prosecution already has access to police interviews
in which defendant recounted his version of the crime, and defendant does not
raise particular concerns about the nature of the tests or the practices of the expert
that would suggest an ulterior motive by the prosecutor. Nor is there any specific
indication that defendant is unable to avoid making prejudicial or incriminating
statements unrelated to his mental health defense. In sum, defendant‘s rights
appear to be adequately protected by the general rule prohibiting the prosecution
from making direct or derivative use of the examination except as necessary to
rebut any mental health defense.
1
But this may not always be so. There may be cases in which the defendant
has refused to make any statements to law enforcement, and thus the proposed
mental examination might appear to serve as a surrogate for police interrogation.
In other cases, the practices of the expert or the nature of the tests might suggest
that the examination is more akin to an investigatory device than a procedure to
allow the prosecution fair opportunity to rebut an anticipated mental health
defense. Or a defendant‘s attorney may show that the defendant simply cannot
stop talking and will infuse the examination with such prejudicial and inculpatory
information that it is impossible to unring the bell. By implication, our rule
prohibiting direct and derivative use except as necessary to rebut defendant‘s
mental health defense is premised on the possibility that the examination may
yield information useful to the prosecution beyond that limited purpose. And it is
impossible for us today to anticipate the extent to which a particular examination
might color, however innocently or subtly, the way a prosecutor frames the case,
selects witnesses, or presents the evidence.
Under our direct and derivative use doctrine, the prosecutor bears the
burden to establish that evidence presented outside of rebuttal was derived from an
independent source and not the compelled examination. (Maj. opn., ante, at
pp. 33–34.) When coupled with pretrial motions in limine to prevent obvious
misuse, this basic rule will often suffice. In other cases, however, enforcing the
bar against direct or derivative use at trial might be an inadequate or inefficient
remedy. The trial court retains broad discretion, consistent with our opinion
today, to decide whether and to what extent protective measures may be warranted
in a particular case to ensure that any use of the examination by the prosecution is
limited to rebuttal of a mental health defense.
LIU, J.
I CONCUR: WERDEGAR, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Maldonado v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 184 Cal.App.4th 739
Rehearing Granted
__________________________________________________________________________________
Opinion No. S183961
Date Filed: April 23, 2012
__________________________________________________________________________________
Court: Superior
County: San Mateo
Judge: Mark R. Forcum
__________________________________________________________________________________
Counsel:
Paul F. DeMeester, under appointment by the Supreme Court, for Petitioner.
Law Offices of J.T. Philipsborn and John T. Philispborn for California Attorneys for Criminal Justice as
Amicus Curiae on behalf of Petitioner.
Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender,
for California Public Defenders Association and Public Defender of Ventura County as Amici on behalf of
Petitioner.
No appearance for Respondent.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Brent W. Wilner, Laurence
K. Sullivan and Jeffrey M. Laurence, Deputy Attorneys General, for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Paul F. DeMeester
1227 Arguello Street
Redwood City, CA 94063
(415) 305-7280
Jeffrey M. Laurence
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5897
Opinion Information
| Date: | Citation: | Docket Number: |
| Mon, 04/23/2012 | 53 Cal. 4th 1112, 274 P.3d 1110, 140 Cal. Rptr. 3d 113 | S183961 |
| Opinion Authors | |
| Opinion | Justice Marvin R. Baxter |
| Concur | Justice Goodwin Liu |
| Brief Downloads | |
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| Jun 8, 2012 Annotated by Jennifer Gonzalez | Facts Petitioner moved for various protective measure related to the court-ordered examination, including that the prosecution or law enforcement officials be prohibited from attending the examinations and that the prosecution be denied access to reports, notes, recording of the examination, and the examiners themselves until the close of the defense case, and that access would then be prohibited until the court had inspected the materials in camera, decided whether the prosecution should be granted access at all, redact privileged information, and decided issues of admissibility by hearing. Petitioner based these requests primarily on his Fifth Amendment privilege against self-incrimination, arguing that he would waive this privilege only if, when, and to the extent he actually presented mental-state evidence in his own behalf at trial. Procedural History Issues 2. Whether the protections of the Fifth Amendment require or allow the trial court to deem necessary additional prophylactic measure, including in camera redaction of materials from a compelled mental-state evaluation, to ensure that the prosecution does not make improper use of compelled utterances. 3. Whether granting the prosecution advanced access to materials from a compelled mental-state evaluation violates the defendant’s Sixth Amendment right to counsel by making prosecutors privy to the information the defendant and his counsel must review in order to decide whether to present a mental-state defense. Holding 2. No. Where prophylactic measures are unnecessary, impractical and unfair to the prosecution, and would produce needless delay in the trial proceedings, the Fifth Amendment protections are adequately safeguarded by the immunity against direct or derivative use of self-incriminating statements. 3. No. Court-ordered mental examinations do not violate a represented defendant’s right to counsel so long as counsel is notified in advance of examination appointments and their purpose, and has the opportunity to consult with the client before they occur. Reasoning By presenting a mental-state defense to criminal charges or penalties at trial, a defendant waives his or her Fifth Amendment privilege to the limited extent necessary to allow the prosecution a fair opportunity to rebut the defense evidence. Section 1054.3, as revised, provide express authority for court-ordered mental-state examinations where the defendant places at issue his or her mental state at any phase of a criminal action. Except for appropriate rebuttal, the defendant’s statements to the prosecution experts may not be used, directy or derivatively, to bolster the prosecution’s case against the defendant. While a grant of immunity must afford protection commensurate with that afforded by the [constitutional] privilege, it need not be broader. If there were no advance disclosure and examination requirement, the Fifth Amendment would not preclude the prosecution from obtaining a mid-trial continuance when petitioner proffered his defense, and from then requiring him to submit to examination by prosecution experts as a means of obtaining rebuttal evidence. The U.S. Supreme Court has strongly indicated that Fifth Amendment rights are not compromised by a requirement that the accused provide the prosecution with accelerated pre-trial discovery about a defense he or she anticipates presenting in the trial itself. The reciprocal nature of the parties’ discovery obligations and the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Accelerated discovery merely compelled the defenant to accelerate the timing of his disclosure, and nothing in the Fifth Amendment privilege entitles a defendant to await the end of the State’s case before announcing the nature of his defense. Evidence Code section 940 provides that to the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him. To the extent the Fifth Amendment provides no absolute privilege against disclosure of potentially self-incriminating information, neither does Evidence Code section 940. The Court of Appeals expressed two concerns in justifying its prophylactic measures, which included in camera redaction of examination materials: 1) that the examinations themselves may not be strictly relevant to the mental-state defense petitioner intends to present, and 2) that unless the examination materials are purged of all Fifth Amendment-privileged information before their release to the prosecution, they may be used to seek out other evidence of petitioner’s guilt. These concerns do not justify the measures devised by the Appeals Court. Measures, such as the in camera redaction of exam materials, require the trial court to resolve petitioner’s privilege claims before it has heard his actual mental-state case, as presented at the trial itself. Working with incomplete information in advance of trial creates a substantial danger that the redaction process, conducted without full and fair participation by the prosecution, and before the defense has actually presented its mental-state case at trial, will be over broad, and will thus leave the prosecution with insufficient information to prepare a legitimate rebuttal case. Further, potential misuse of privileged information is already protected a well-established framework for resolving “forbidden fruit” issues at trial. Once the defendant provides specific evidence demonstrating taint, the government has the ultimate and heavy burden of showing that its evidence is untainted. If the defense desires such pretrial assurances against improper use, it must provide the court and prosecution with the details of its anticipated mental-state defense sufficient to permit fully informed argument and resolution of the privilege issues or the defense. Alternatively, the defense can raise its privilege arguments at the trial itself when the court is in the best possible position to determine whether particular rebuttal evidence proffered by the prosecution exceeds the scope of the defendant’s Fifth Amendment waiver. The Court has long established that compelled mental-state examinations of this kind do not violate a defendant’s Sixth Amendment right to counsel so long as counsel is notified in advance of examination appointments and their purpose, and has the opportunity to consult with the client before they occur. Concurring Opinion In this case, the prosecution already had access to police interviews in which defendant recounted his version of the crime, the defendant did not raise particular concerns about the nature of the tests or the practices of the expert that would suggest an ulterior motive by the prosecutor, and there was no indication that the defendant was unable to avoid making prejudicial or incriminating statements unrelated to his mental health defense. Thus, the defendant‘s rights appear to be adequately protected by the general rule prohibiting the prosecution from making direct or derivative use of the examination except as necessary to rebut any mental health defense. In other cases, however, enforcing the bar against direct or derivative use at trial might be an inadequate or inefficient remedy. The trial court retains broad discretion, consistent with the majority opinion, to decide whether and to what extent protective measures may be warranted in a particular case to ensure that any use of the examination by the prosecution is limited to rebuttal of a mental health defense. |
