48 A.3d 856
N.H.2012Background
- Defendant Gary Marchand indicted for first degree murder and second degree murder in connection with his wife's killing.
- Marchand notified he would raise an insanity defense; plans to rely on testimony from five treating physicians who treated him pre-homicide.
- State moved to compel a psychological examination by its expert, Dr. Albert Drukteinis; trial court held a hearing and requested briefing.
- Trial court relied on Briand to permit broad access to records and testing, but found case factually distinct and ordered procedures.
- Briand involved a defendant who sought to rely on defense-expert testimony after pre-arrest examination; it did not squarely address this insanity-context issue.
- Court reversed in part, vacated in part, and remanded, adopting a framework limiting the State’s use of examination information to rebut insanity and protecting privilege against self-incrimination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether self-incrimination prohibits forced examination | State argues Briand does not control; compelled exam permissible. | Marchand contends compelled exam violates privilege against self-incrimination. | Privilege does not bar compelled exam; permissible to rebut insanity claim. |
| What procedures should govern such examinations | State seeks broad access and use of examination for rebuttal. | Marchand urges strict safeguards to avoid using exam to prove guilt. | Adopt framework: use exam only to rebut insanity; limit disclosure and timing; ultimate conclusions disclosed pretrial; avoid using exam to prove elements. |
Key Cases Cited
- State v. Briand, 130 N.H. 650 (1988) (insanity context; not dispositive for instant issue)
- United States v. Bohle, 445 F.2d 54 (7th Cir. 1971) (exam limited to mental capacity; not guilt evidence)
- Albright, 388 F.2d 719 (4th Cir. 1968) (compelled exam permissible when used only for insanity issue)
- Parkin v. State, 238 So. 2d 820 (Fla. 1970) (self-incrimination not implicated when evaluating insanity)
- Davis, 93 F.3d 1286 (6th Cir. 1996) (limits on use of compelled-exam information)
- Zahradnick, 581 F.2d 75 (4th Cir. 1978) (pretrial examination safeguards; insanity context)
- Martin, 950 S.W.2d 20 (Tenn. 1997) (framework safeguarding self-incrimination in insanity defense examinations)
- Burgess, 156 N.H. 746 (2008) (self-incrimination and weight of silence concerns; sentencing context)
- State v. Etienne, 163 N.H. 57 (2011) (self-defense and provocation distinctions; burden on State)