REYNALDO A. MALDONADO, Pеtitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. S183961
Supreme Court of California
Apr. 23, 2012.
53 Cal.4th 1112
Law Offices of J.T. Philipsborn and John T. Philipsborn 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 Curiae 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.
OPINION
BAXTER, J.—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
Petitioner Reynaldo A. Maldonado faces charges of first degree murder with a special circumstance. (
Invoking his federal constitutional rights to counsel (
The trial court agreed that prosecutors should not be present in the examination room itself, but the court othеrwise 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
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 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.
In January 2008, the San Mateo County District Attorney charged petitioner with first degree murder and alleged a lying-in-wait special circumstance. (
In response, the prosecution moved, pursuant to
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 аll 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 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
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 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.
Petitioner sought mandаte. 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.
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 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
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, 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, еither 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.
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
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 [148 Cal.Rptr. 39, 582 P.2d 126]; Daly v. Superior Court (1977) 19 Cal.3d 132, 140 [137 Cal.Rptr. 14, 560 P.2d 1193]; Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4 [23 Cal.Rptr. 375, 373 P.2d 439].) Recently, in Verdin, supra, 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
In response to Verdin, the Legislature amended
This case thus presents an early оpportunity 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.
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 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 defеnse 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 [131 Cal.Rptr.2d 468, 64 P.3d 762]; Carpenter, supra; People v. McPeters (1992) 2 Cal.4th 1148, 1190 [9 Cal.Rptr.2d 834, 832 P.2d 146]; People v. Coleman (1989) 48 Cal.3d 112, 151-152 [255 Cal.Rptr. 813, 768 P.2d 32]; People v. Williams (1988) 44 Cal.3d 883, 961 [245 Cal.Rptr. 336, 751 P.2d 395] [insanity plea]; see Buchanan, supra [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 [32 L.Ed.2d 212, 92 S.Ct. 1653] (Kastigar) [state may compel potentially incriminating testimony despite witness‘s invocation of 5th 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
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.
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
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. Howеver, 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
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 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.” (
Finding that the qualified immunity was available, six members of the Chavez court agreed that a “core” Fifth Amendment violation is completеd, 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 [108 L.Ed.2d 222, 110 S.Ct. 1056] (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 [123 L.Ed.2d 407, 113 S.Ct. 1745] (1993) (describing the Fifth Amendment as a ’ “trial right” ‘); id., at 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, capitalization omitted (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.)
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 noncriminal 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 [42 L.Ed.2d 574, 95 S.Ct. 584] (1975) (noting that the Fifth Amendment privilege may be asserted if one is ‘compеlled 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
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 [88 Cal.Rptr.3d 590, 199 P.3d 1125].) 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 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 [20 L.Ed.2d 1089, 88 S.Ct. 1917]; Gardner v. Broderick (1968) 392 U.S. 273, 277-279 [20 L.Ed.2d 1082, 88 S.Ct. 1913]; Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of New York (2d Cir. 1970) 426 F.2d 619, 626-627; see also Adams v. Maryland (1954) 347 U.S. 179, 181 [98 L.Ed. 608, 74 S.Ct. 442].)
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
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.” (Id., italics added.)11 The same principle applies to the advance assurances and protections petitioner seeks here.
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 [26 L.Ed.2d 446, 90 S.Ct. 1893], 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
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 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 nо notice-of-alibi rule, the court made clear, the prosecution would be entitled to a midtrial continuance, on grounds of surprise, the
In Woods v. Superior Court (1994) 25 Cal.App.4th 178 [30 Cal.Rptr.2d 182], 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” (
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 suppоrt his claim and allow fair rebuttal. Forcing him to this choice does not offend the Constitution. If he decides to go forward with the
If there were no advance disclosure and examination requirement, the
In the third place, even if a defendant‘s statements to prosecution mental examiners are incriminatory, testimonial, compelled, and personal—thus satisfying the four
Finally, as explained elsewhere in this opinion, the prosecution‘s pretrial access to materials derived from mental examinations conducted under
In determining that prophylactic measures, including provisions for delayed and redacted disclosure of the examination materials, are nonetheless necessary to protect petitioner‘s
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
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
Second, the Court of Appeal majority worried that unless the examination materials are purged of all
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 experts pursuant to court order, had been kept from them. The absence of a fully informed, two-sided debate on the
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 [85 Cal.Rptr. 829, 467 P.2d 557] [in camera review to determine scope of patient-litigant exception to psychotherapist-patient privilege];
By contrast, the
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
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
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 [22 L.Ed.2d 176, 89 S.Ct. 961] [evidence obtained by illegal search]; see, e.g., U.S. v. Hall (5th Cir. 1998) 152 F.3d 381, 399 (Hall), cert. den. sub nom. Hall v. United States (1999) 526 U.S. 1117 [143 L.Ed.2d 797, 119 S.Ct. 1767] [evidence derived from court-ordered psychiatric exam]; see also U.S. v. Allen (8th Cir. 2001) 247 F.3d 741, 773–774 (Allen), judg. vacated and cause remanded on other grounds sub nom. Allen v. United States (2002) 536 U.S. 953 [153 L.Ed.2d 830, 122 S.Ct. 2653] [same].)17
Finally, current
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. (
The competing interests may justify the limited restrictions imposed by amended
Even so, nothing in amended
Nor does
For all these reasons, we are persuaded that neither the
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
Petitioner‘s argument is, in any event, unmeritorious as presented here. The very purpose of mental examinations ordered by the court under
CONCLUSION
The judgment of the Court of Appeal is reversed with directions to deny the petition for mandamus.
Cantil-Sakauye, C. J., Kennard, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.
LIU, J., Concurring.—The court‘s opinion today holds that neither the
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.
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 рremised 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 p. 1138.) 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
Werdegar, J., concurred.
Notes
The prosecution‘s motion, and the court‘s order, predated the adoption of
In response to Verdin, the Legislature added subdivision (b)(1) to
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
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 рrosecution, “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 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 underway, 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 chаrged 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 examinations will present serious and widespread obstacles to the efficient conclusion of the trial proceedings.