Defendant, who is charged with homicide and assault with intent to kill under two separate indictments, moves for an order directing a psychiatric examination of Ralph Tino, a witness to the alleged murder of Michael Tino, his father, to determine his competency as a witness both at the time of the alleged murder and now for purposes of trial.
In State v. Butler , 27 N.J. 560 (1958), the trial court allowed the State to hold a pretrial psychiatric examination of a witness who had been indicted along with defendant but who had turned State's evidence and who had been confined previously to an out-of-state mental hospital. In addition to allowing the State to examine the witness, it denied defendant's motion to order a psychiatric examination of the witness. In making its determination of competency, the trial court based its decision, at least in part, on the State's reports which it examined privately and ex parte. At 598-599.
The Supreme Court reversed the trial court on this motion by defendant, holding that, although there is no express practice rule authorizing a pretrial order for a psychiatric examination, a trial court, having jurisdiction of a criminal prosecution, has the authority to so order the examination by subpoena in its inherent powers. At 600-601. The ex parte decision of competency and the resulting lack of cross-examination deprived defendant of a basic fair trial right. At 605. Cf., Pointer v. Texas , 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2 d 923 1965). The court was cognizant of Matter of Peterson , 253 U.S. 300, 312, 40 S. Ct. 543, 547, 64 L. Ed. 919 (1920), which holds:
Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties.
The court warned, though, in Butler, supra , that the practice of granting psychiatric examinations of witnesses
must be engaged in with "great care" and only upon a "substantial showing of need and justification." 27 N.J. , at 605.
A pretrial order was granted to defendants, appointing a psychiatrist to examine a witness in another murder trial, but when the witness refused to submit to the examination, the trial court denied defendant's motion for an order compelling her submission. The Supreme Court remanded the case, holding that such an examination should have been ordered. State v. Franklin , 49 N.J. 286, 288 (1967). Here again, the witness had previously been committed to the state hospital for the insane. After the witness was examined by a psychiatrist, the trial judge determined that she was competent to testify and the trial continued. See State v. Franklin , 52 N.J. 386 (1968).
A slightly different question is presented in State v. Tate , 47 N.J. 352 (1966). In that case, the defendant asked for orders permitting pretrial depositions in a murder trial. This request was denied on the grounds that such pretrial disclosure should only be allowed where it was anticipated that the witness could not attend a criminal proseeding. Id. at 353-354, State v. Farmer , 48 N.J. 145 (1966). Also, see, R. 3:13-2(a) (formerly, R.R. 3:5-8(a). This situation is not present in the instant case -- the scope of the examination sought is not similar to the scope of testimonial depositions.
In the instant case, there is no evidence that the witness involved has ever been hospitalized in a mental institution, nor is there any evidence that there was ever any question of his competence before the alleged murder and assault took place. There is, though, the report of a police record made on September 20 when three officers investigated a complaint emanating from the Tino home. That report is instructive in this case.
According to the report, Ralph Tino had threatened his mother and sister and had thrown ash trays, dishes and food about the kitchen, previous to the arrival of the officers. When the ...