Defendant moved for a clarification of an order entered in this court on October 10, 1969, ordering a psychiatric examination for a witness in a murder case who is decedent's son.
It is defendant's contention that defense counsel should be allowed to speak with the psychiatrist before the examination is conducted, to discuss the nature of the charges in the case (there are two indictments, one charging defendant with murder and one charging him with assault with intent to kill the witness in question), the circumstances surrounding the homicide, and the history and background of the witness.
The State, on the other hand, has argued that the order, as written, is sufficiently specific and complete to allow for an adequate and comprehensive examination of the witness. The State opposes the request of defense counsel to confer with the psychiatrist before the examination is begun.
Counsel for the witness, appointed by the court, did not appear although notified of motion.
Defendant's arguments are not persuasive on this matter. The psychiatrist should not make his determination based on what the lawyers -- either prosecution or defense -- represent to him to be the material facts of this case. He must make a complete and comprehensive physical and mental examination of the witness and come to his conclusions about the witness' competence, as a witness, as a result of those examinations, coupled with his background of psychiatric knowledge.
Just as "battles of experts" are looked upon with disfavor, so should "battles of counsel" be looked upon similarly in a situation such as this, where the potential for influence and suggestion is strong. A situation in which one party or another tries, in effect, to sell a "bill of goods" to an examining medical officer is to be avoided at all costs.
The explanation for this is clear. A psychiatrist should make his examinations, his observations and, ultimately, his determinations, in as objective an atmosphere as is possible. A psychiatric examination requires an atmosphere that is conducive to freedom of expression on the part of the one examined. Cf. Durst v. Superior Court , 222 Cal. App. 2 d 447, 35 Cal. Rptr. 143, 147, 7 A.L.R. 3 d 874 (App. Ct. 1964).
Without [sufficient] neutrality * * *, if [the psychiatrist] gets swept up in the emotional currents, he cannot maintain that balance of patience, curiosity, empathy, tolerance and mobility of thinking that he needs. Schafer, "On the Nature of the Therapuetic Relationship," in Katz, Goldstein & Dershowitz, Psychoanalysis, Psychiatry and Law , 722-723 (1967).
On the other hand, counsel are partisans. That is, in fact, their sworn duty. See Canons of Professional Ethics, Canon 5. In such a situation the opportunity for suasion, be it subtle or unconscious, is great. It has been noted that the influence of outsiders at a psychiatric examination can cause the one being examined "consciously or unconsciously, to guard, alter or disguise his responses." Cf. Kelley v.
Smith & Oby Co. , 129 N.E. 2 d 106, 109 (Ohio ...