NCJ Number
15801
Journal
Arizona Law Review Volume: 15 Issue: 4 Dated: (1973) Pages: 919-950
Date Published
1973
Length
32 pages
Annotation
ANALYSIS OF POSSIBLE INCRIMINATING MATERIAL WHICH MAY BE DIVULGED IN THE MENTAL EXAMINATION AND A PROPOSAL TO MINIMIZE THE POSSIBILITY OF IN-COURT SELF-INCRIMINATION WHILE RETAINING THE BENEFITS OF THE EXAMINATION.
Abstract
A DESCRIPTION OF MENTAL EXAMINATIONS AS MANDATED BY STATUTES IN THE UNITED STATES IS PRESENTED. ALSO CONSIDERED ARE THE TWO MODES OF SELF-INCRIMINATION THAT CAN OCCUR AS A RESULT OF COMPULSORY MENTAL EXAMINATIONS: ADVERSE USES OF STATEMENTS MADE DURING THE EXAMINATION AND USE OF THE EXPERT'S OPINION TO ESTABLISH THE CAPACITY FOR MENS REA. FOUR CATEGORIES OF STATEMENTS MADE BY THE DEFENDANT THAT MIGHT LATER BE USED AGAINST HIM ARE DISCUSSED. THEY INCLUDE ADMISSIONS, STATEMENTS WHICH MAY BE USED TO IMPEACH THE DEFENDANT SHOULD HE TAKE THE STAND, STATEMENTS WHICH PROVIDE THE PROSECUTION WITH NEW EVIDENTIARY MATERIAL, AND STATEMENTS WHICH IMPLICATE THE DEFENDANT TO IN OTHER, UNRELATED CRIMES. THE AUTHOR CITES SEVERAL COURT DECISIONS RELATING TO THE SECOND MAJOR WAY A DEFENDANT MAY BE INCRIMINATED BY A MENTAL EXAMINATION. APPELLATE COURTS HAVE GENERALLY RESPONDED WITH THREE DIFFERENT THEORIES - IMPLIED WAIVER, CONSTRUCTIVE WAIVER, AND THE PHYSICAL EXHIBIT ANALOGY. IT IS SUGGESTED THAT THE EFFECTS OF THE USE OF THE DEFENDANT'S COMMUNICATIONS (WHICH CANNOT BE JUSTIFIED CONSTITUTIONALLY) ARE DISTINGUISHABLE FROM THE GENERAL INCRIMINATING EFFECT INHERENT IN THE EXAMINATION (WHICH CAN). THE AUTHOR CONCLUDES THAT IF THE DEFENDANT IS ADEQUATELY IMMUNIZED AGAINST ALL ADVERSE USES OF HIS COMMUNICATION TO THE EXAMINER, THE EXAMINATION IS SIMILAR TO A PHYSICAL DISPLAY AND CAN BE JUSTIFIED CONSTITUTIONALLY UNDER THE RECOGNIZED EXCEPTION TO THE FIFTH AMENDMENT FOR 'REAL,' 'NONTESTIMONIAL' EVIDENCE.