For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
Defendant Johnny Whitlow was indicted for the murder of Theodore Gantry in Cape May County on November 28, 1964. On December 11, 1964 he entered a plea of not guilty at which time his attorney informed the court that the plea was being entered because Whitlow was mentally incompetent to stand trial, and also because he was insane at the time of commission of the alleged crime. See State v. Auld, 2 N.J. 426, 435 (1949).
It appearing that Whitlow had been examined on December 5, 1964 by a psychiatrist of his own selection, the prosecutor sought an order from the court for a similar examination on behalf of the State. At the argument of the application defense counsel opposed the grant of such an order saying he would instruct defendant not to cooperate with the State psychiatrist which would make the examination a "waste of money." Part of the colloquy between the court and the attorney follows:
"THE COURT: You are asking the Court to make an inquiry as to whether this man is competent to stand trial?
MR. PERSKIE: Yes, I will present psychiatric testimony to assist the court.
THE COURT: But, at the same time you don't want the State to prepare themselves that way for the same thing.
MR. PERSKIE: That's right. They can look and observe, but there is no compulsion on the part of the defendant to cooperate with their psychiatrist."
The subject of defendant's cooperation in a psychiatric examination was re-argued a short time later after briefs had been submitted. Thereafter the court entered an order directing defendant to submit to a mental examination by psychiatrists for the State, to "answer any and all questions asked of him [by them] which they may deem relevant to their examination,"
and to "otherwise cooperate * * * in order that [they] may be enabled to inquire into the defendant's mental condition." For future guidance we suggest that such an order more specifically define the twofold scope of the examination, i.e., (1) to determine whether defendant is suffering from a mental illness or condition which prevents him from comprehending his position and from consulting intelligently with counsel in the preparation of his defense, and (2) to determine whether defendant at the time of commission of the crime was suffering from a mental illness which under established principles of law would warrant acquittal or justify conviction of a lesser degree of crime. State v. Cook, 43 N.J. 560, 570-571 (1965); State v. Di Paolo, 34 N.J. 279, 294-295, cert. denied 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2 d 80 (1961); Aponte v. State, 30 N.J. 441, 450 (1959); State v. Mount, 30 N.J. 195, 215-224 (1959); Winn v. United States, 106 U.S. App. D.C. 133, 270 F.2d 326 (D.C. Cir. 1959), cert. denied 365 U.S. 848, 81 S. Ct. 810, 5 L. Ed. 2 d 812 (1961).
On the occasion of this second argument defendant not only objected to an order requiring cooperation in the examination, but also requested that his attorney be present if the examination were ordered. Permission for the attorney's presence was denied. The order, however, forbade disclosure of the results of the examination by the State psychiatrists to anyone for the defense or for the State until further order of the court. This restraint was designed to protect and preserve, pending appeal, defendant's objection that the order to cooperate with the examining physicians violates his privilege against self-incrimination under the Fifth Amendment of the United States Constitution and under N.J.S. 2A:84A-17, Rule 23(1); N.J.S. 2A:84A-19, Rule 25.
On December 16 defendant was examined on behalf of the State by two psychiatrists. He fully cooperated in the examination. Neither his counsel nor his psychiatrist was present. Thereafter defendant applied for leave to appeal from the order allowing the examination, supporting the application
by an affidavit reciting that during the course of their psychiatric study, the State's doctors questioned him at length about the circumstances of the killing. Leave to appeal was granted and the stay of delivery of the report was continued. At our direction, after argument of the appeal, the report was delivered to this Court, perusal thereof being limited to us.
The appeal presents problems largely of novel impression in New Jersey. They are: (1) in criminal cases where the defendant pleads inability to stand trial because of mental incompetence, or that he is innocent of criminal blame because he was insane at the time of the alleged offense, is his right to freedom from self-incrimination invaded by a court order authorizing his examination by State psychiatrists and directing him to answer their questions relating to the commission of the crime, if in their opinion such questions and answers are necessary to the formulation of an opinion on either or both of the issues of mental competence; (2) whether the refusal to allow defense counsel to be present at the examination violates defendant's right to have the assistance of counsel in his defense, under the Sixth Amendment of the Federal Constitution, and Article I, Paragraph 10 of the New Jersey Constitution.
When a defendant charged with crime pleads mental incapacity to stand trial or innocence by reason of insanity, obviously expert medical opinion is necessary both for the defendant and for the State. Although lay testimony as to insanity might be admissible, it is unlikely in the extreme that exclusive reliance would ever be placed on it. In the usual situation when counsel advises the State or the court of his client's mental incapacity for trial or for criminal responsibility, it may be assumed that defense psychiatrists have already examined defendant and furnished an expert opinion supporting the statement. (Of course, if defense counsel has reasonable ground to believe defendant is insane or [45 NJ Page 11] was at the time of commission of the alleged offense, and the defendant is indigent, the trial court on application would undoubtedly authorize the selection of a psychiatrist to make an examination at public expense. Even in the absence of a statute, such action would be within the inherent power of the court. Cf. State v. Butler, 27 N.J. 560, 599-601 (1958).) In such case manifestly the State should be permitted to have a similar examination made by psychiatrists of its choosing. It would be most anomalous to say that a defendant may advance the defense of insanity, have himself examined by his own experts and then invoke the constitutional guarantees against self-incrimination for the purpose of preventing examination by the State. State v. Myers, 220 S.C. 309, 67 S.E. 2 d 506, 32 A.L.R. 2 d 430 (Sup. Ct. 1951). It would be a strange doctrine, indeed, to permit a person charged with crime to put in issue his want of mental capacity to commit it, and in order to make his plea invulnerable, prevent all inquiry into his mental state or condition. State v. Cerar, 60 Utah 208, 207 P. 597, 602 (Sup. Ct. 1922). To allow the accused to obtain his own expert, and after a private and unlimited conference with him and examination by him, to plead insanity, and then put forward the privilege against self-incrimination to frustrate like activities by the prosecution is to balance the competing interests unfairly and disproportionately against the public. Most states through their legislatures have sought to achieve a proper balance by authorizing or requiring psychiatric examination of persons charged with crime when the appropriate court has learned of their insanity or claim of it. See Annotation, 32 A.L.R. 2 d 434 (1953); Note, "Pre-Trial Mental Examination and Commitment; Some Procedural Problems in the District of Columbia," 51 Geo. L.J. 143 (1962).*fn1 [45 NJ Page 12] In New Jersey the Legislature has provided statutory procedure for inquiry by the County Court or Superior Court to determine the sanity of a person in confinement under arrest or indictment for crime. N.J.S. 2A:163-2. The statute referred to contemplates institution of the proceedings by [45 NJ Page 13] presentation to the court of an application by the prosecutor or relatives or other interested persons, supported by the certificates under oath of two physicians who have made examinations and who certify as to the accused's mental incapacity and need for commitment. See N.J.S.A. 30:4-27 to 30. On receipt of such papers the court may conduct a hearing in open court, with or without a jury, and take the [45 NJ Page 14] testimony of qualified psychiatrists as to the mental competency of the accused to stand trial. In appropriate cases also, it may determine the sanity of the accused at the time of commission of the offense. See Aponte v. State, supra, for an outline of the course of such proceedings; cf. Farmer v.
State, 42 N.J. 579 (1964). (Certain provisions are made for summary disposition of cases where immediate temporary commitment is necessary. N.J.S.A. 30:4-25, 26.1, 46.1. They need not concern us here.)
In the prosecution and defense of criminal cases it frequently happens that neither party seeks the type of hearing contemplated by the statute. The accused simply advises the court or the prosecutor that at the trial he will defend on the ground of insanity at the time of commission of the offense. In this situation the court, of course, has the power to have medical experts examine for the State or for the defendant, if he is indigent, and to report their findings to the party engaging them.
It is obvious, even to the layman, that in all probability a psychiatrist would require more than a mere physical examination of a defendant in order to reach a conclusion of his sanity or insanity. The very nature of the psychiatric study would seem to call for utterances or answers through conversation with the alleged incompetent. The psychiatric interview is the basic diagnostic tool. See Krash, "The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia," 70 Yale L.J. 905, 918 (1961). The Legislature gave consideration to the privilege against self-incrimination in the light of the need for conference between the psychiatrist and the accused, and ordained in N.J.S. 2A:84A-19, Rule 25:
"(a) [N]o person has the privilege to refuse to submit to examination for the purpose of discovering * * * his physical or mental condition."
In recent years when statutes requiring or permitting court order for psychiatric examination of an accused have been attacked as transgressing the privilege against self-incrimination, the attacks have been rejected uniformly. See comments to § 4.05, Model Penal Code, Tentative Draft No. 4 (1955), p. 196; Note, supra (51 Geo. L.J., ...