Lead Opinion
Opinion of the Court
The question in this case is the admissibility of testimony by a Navy psychiatrist. No objection to the testimony was made at the trial, but the accused now contends that it is inadmissible and prejudicial.
After apprehension on suspicion of committing certain offenses on board ship, the accused was sent to a Navy hospital for observation. He remained for about a week. Shortly after his release, charges were filed against him for the theft of four wrist watches from
The defense’s case consisted entirely of testimony about the accused’s behavior and aрpearance before and after the events in issue. The principal evidence was a stipulation of testimony by a civilian psychiatrist who had examined the accused. In part, the doctor testified that the accused told him that “he does not recall anything” that happened to him from the time he opened the door to the ship’s bake shop until he awakened in a port crane of the ship approximately four hours later. The accused further informed the doctor that he subsequently “was advised” that he had broken into the ship’s armory and ship’s store and that he had “challeng[ed]” a member of the ship’s company with a gun. Electroencephalographic findings were “suggestive” of certain conditions which “might indicate ... a convulsive tendency with localized brain damage.” Further study was required to determine the cause of the findings, and to rule out evidence of a lesion in the left anterior cerebrum which “might have preсipitated a episode” of the kind related by the accused. The doctor concluded that, although there was no definite evidence that the accused is mentally incompetent, “there is a question whether he knew right from wrong during the period of this so-called assault and felony.”
In rebuttal, the prosecution called Lieutenant R. C. Ovington, a Navy neuro-psychiatrist. He testified that he examined the accused while the accused was in the Navy hospital. He knew that thе accused was suspected of committing certain offenses aboard ship. He evaluated the accused’s mental condition and concluded that there was “no evidence of any psychiatric disability of any illness.” He reсounted conversations with the accused which took place in the course of his examination in which the accused related many details regarding the alleged offenses. In the opinion of the doctor, disclosures of this nature were not consistent with an amnesic condition.
Throughout the trial, both the Government and the defense stressed the fact that there were only two real issues before the court. One was whether the weapon was loaded when the аccused pointed it at Boatswain Mate Wyatt, when the accused was discovered in the port crane; the other was the accused’s mental condition.
Appellate defense counsel attacks the admissibility of Lieutenаnt Ovington’s testimony on two grounds. First, he contends that the relationship between the lieutenant and the accused was that of psychiatrist-patient, and, consequently, communications between them were privileged. The contention is cоntrary to the Manual provision that “no privilege attaches” to communications between military personnel and military doctors (paragraph 151c (2)) and the rule that the privilege does not exist in the absence of a statute. People v Lane, 101 Cal 513,
“When the respondent called a physician as a witness who testified that for at least seven months the respondent had been suffering from ‘active pulmonary tuberculosis,’ he exposed his condition to the public and disclosed the secret which thе statute was enacted to protect ■ and keep secret. By his own act he removed the prohibition of the statute and waived upon the trial the protection which it afforded him.
“The contention that a patient may waive the privilege afforded by the statute himself by calling a physician and disclosing his physical condition and at the same time insist that the statute bars the defendant from calling a physician to describe his physical condition, if sustained, would in many cаses result in injustice and fraud. It would be making a use of the statute never intended by the Legislature and not now approved by this Court.” [Steinberg v New York Life Ins. Co.,263 NY 45 ,188 NE 152 , 154.]
The second basis of the accused’s attack on the admissibility of- Dr. Ovington’s testimony is that it violates the provisions of Article 31 of the Uniform Code in that the doctor did not inform the accused of his rights under the Article. We need not consider whether such advice must be given as a preliminary to an examination of the kind in question. See United States v Bunting,
The decision of the board of review is affirmed.
Notes
We are not to be understood as holding that the relationship between Dr. Ovington and the accused was that of physician-patient. Dr. Ovington tеstified that he was the accused’s “physician” but he also said that he evalu
See Mays v New Amsterdam Casualty Co., 40 App DC 249, cert denied,
Dissenting Opinion
(dissenting):
I am unable to reach the issue raised in this appeal because of the presence of a serious error which has not been considered in the principal opinion. After the prosecution had rested its case, the accused in his defense raised the issuе of mental responsibility and introduced evidence in support thereof. Mainly relied upon was a stipulation of testimony by a civilian psychiatrist in which he concluded that the accused had had “an episode of unconsciousnеss of
“Q. What did he tell you was the reason for committing these offenses ?
“Law OFFICER: Gentlemen, I am going to limit this testimony — or the effect of it to the credibility of the witness’ opinion as to the accused’s mental condition. Is that the purpose you are offering it ?
“TRIAL Counsel: 1 am offering it in rebuttal to the medical testimony offered on behalf of the accused, Mr. Law Officer. It is apparent from that thаt the conclusions as they are reached from Doctor Campbell are based on a history given by this man of amnesia. I think I am entitled to rebut that testimony by showing that the history given was not true, and therefore the opinion of Doctor Camрbell is entitled to a little more weight.
“Law Officer: All right. But the question in my mind is this: Are you offering it as a confession — and I assume you are not; it is in rebuttal to the stipulated testimony of Doctor Campbell, is that right?
“Trial Counsel: Yes, sir.
“Law Officer: All right, proceed.” [Emphasis supplied.]
In spite of this assurance and the law officer’s admоnition, trial counsel proceeded to interrogate the witness relating- to what the accused had told him “about the commission of the offenses.”
While it was entirеly proper for the law officer to limit the scope of rebuttal testimony, it was clearly error on his part to remain mute while trial counsel elicited a confession" related ’by- the accused to the psychiatrist in disregard of his earlier ruling. The question of the accused’s guilt' or innocence’was the ultimate issue for the triers of fact ánd any doubt which they may. have entertained was effectively dispelled by the testimony of 'the Government psychiatrist. * I would reverse the conviction and permit a rehearing.
The witness answered the question as follows:
“To the best of my recollection, he told me that he broke into the Ship’s Store and he stole, I think he said, three or four wrist watches, and that he broke into the armory where the weapons are kept and took, as I recall, a .45 caliber automatic, and I think he said something about having also taken some food, and then he said, as he put it, he holed up in' the port crane.”
The witness was then asked whether the accused had tоld ' him that he had “holed up in the port crane” to which he replied as follows:
“Yes. He said his plan was to avoid detection until the ship reached port. As I recall, at the time he said it was his understanding that the ship was to dock about 1600 or 1700 that day- and his,plans were, as he said, to" jump overboard and go over the hill.”