The issue is the extent of the pretrial psychiatric *289 еxamination that a trial court can require of á'defendant who has pleaded, not guilty by reason of insanity. The criminal charge was failing to stop at the scene of an аccident resulting in an injury.
The District Attorney moved for an order requiring the defendant to be examined, by a psychiatrist selected by the court or the state. The court so ordered. In response to a motion for clarification of the court’s order the court further ordered:
“IT IS THEREFORE ORDERED:
“1. That Defendant answer questions concerning his accident or conduсt at or immediately near the time of the commission of the alleged crime;
“2. Counsel for the Defendant is ordered not to advise the Defendant to refuse to answer questions concerning his accident or conduct at or immediately near the time of the commission of the alleged crime;
“3. Counsel is ordered not to interfere by advising Defendаnt not to answer questions the answer to which might tend to incriminate him; and,
In response to defendant’s petition, this court, exercising original jurisdiction, issued an alternative writ of mandamus, оrdering the defendant trial court to show cause why it should not vacate its order. The trial judge demurred and answered, admitting all the facts alleged in the alternative writ.
In
State v. Phillips,
In
State v. Smith,
The issue is now squarely presented to us: Does the court have the authority to require that the defendant, at a pretrial mental examination, answer questions concerning his conduct relating to the offense charged, and can the court order defendant’s counsel not to advise his client to refuse to answer questions upon the grоund that they might incriminate him?
It is apparent that the defendant’s answers to the psychiatrist’s questions might be incriminating upon any of the issues in the trial, including the issue whether the defendant committed .the act charged. ①
Other jurisdictions have solved this problem in varying ways.
In State v. Whitlow,
45 NJ 3,
Most recently in
State v. Raskin,
34 Wis2d 607,
A mаjority of the courts which have squarely considered the problem, however, have held that the defendant upon a pretrial mental examination cannot be requirеd to answer questions.
*292
The decision in
State v. Whitlow,
supra (45 NJ 3), was criticized in
State v. Olson,
274 Minn 225,
In
French v. District Court, Division 9,
153 Colo 10,
In
State v. Hathaway,
161 Me 255,
In an Illinois proceeding to have defendant declared sexually dangerous, a civil proceeding, the triаl court held the defendant in contempt because he refused to. answer. questions asked by a psychiatrist at
*293
a court-ordered mental hearing. His refusal was grounded upon the Fifth Amendment. The Illinois court reversed the contempt conviction, holding that the-defendant might in the course of the examination make incriminating statements, that he could not be required to do so, and that the court could not grant judicial immunity for any criminal conduct revealed by such incriminating statements.
People v. English,
31 Ill2d 301,
"We conclude that the only way in which the cоnstitutional right of the defendant not to be compelled to testify against himself can be adequately preserved is to hold that the defendant cannot be required to answer the questions which the trial court’s order requires him to answer, and the restrictions placed upon defense counsel by the trial court’s order must be removed.
We share the view of the court, in State v. Olson, supra (274 Minn 225), that the right against self-incrimination is not adequately protected by instructing the jury that in determining the issue of guilt they cannot consider any incriminating statements the witness may have made to the psyсhiatrist.
Even if we prohibited the psychiatrist from testifying to incriminating statements made to him by the defendant in a pretrial mental examination, requiring the defendant to answer could nevertheless jeopardize the privilege against self-incrimination. The statements made by the defendant to the psychiatrist could provide a lead to other evidencе which would incriminate the defendant on the issue of guilt. If the trial court ordered that statements made by the defendant to the psychiatrist could not be revealed to the state or to any other person except upon court order, we are of the opinion that under certain circumstances *294 there is more than a remote chаnce that such-Statements would become known to others in addition to the trial court.
We are aware that in holding that the defendant cannot be compelled to аnswer the psychiatrist’s questions we may be lessening the quality of the evidence available to the state. Psychiatrists have expressed the opinion that it is difficult, at least in somе cases, to arrive at a competent opinion bn the mental state of the defendant if the defendant cannot be questioned about the alleged crime. Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L J 905, 918 (1961). We are of the opinion that this is a price that must be paid to enforce the constitutional protection.
The defendant’s demurrer is overruled and the defendant court is ordered to vacate its orders of March 1, 1967, and March 6, 1967. ④
Notes
Danforth, Death Knell For Pre-trial Mental Examination? Privilege Against Self-incrimination, 19 Rutgers L Rev 489 (1965).
Noted-tai Wis L Rev 671 (1964).
See Comment on decision in 18 Me L Rev 96 (1966).
The March 6 order is a clarification of the March 1 order; ' however, both orders are included in the alternative writ. '