UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, McGowan and MacKinnon, Circuit Judges. Bazelon, Chief Judge (dissenting).
After a jury trial, appellant was convicted of first-degree murder and two counts of assault with a dangerous weapon. The incident involved the stabbing of the female decedent with whom appellant had been emotionally involved. The principal defense was insanity, although there was also some testimony by appellant to the effect that the killing occurred in a heat of passion. There was conflicting evidence from expert witnesses on both sides as to the insanity issue, but appellant does not contend on this appeal that the jury's resolution of this question against him was without adequate foundation in the evidence.
The errors pressed upon us relate mainly to the giving of testimony by a private psychiatrist who appeared for the defense. Prior to trial defense counsel had arranged for his witness to examine appellant, a central purpose being to determine whether appellant should be examined under the influence of truth serum in order to improve his powers of recall. A day after the examination, the witness dictated notes of it and a few days after that wrote defense counsel a letter. During cross-examination of this witness at trial, the prosecutor asked for any notes or reports made by the witness, and the court directed that the notes and letter be made available to him.
It is first argued that the court erred in making these documents available to the prosecution at all. It is variously asserted that they fell under the physician-patient privilege, or are protected by the right to counsel, the attorney-client privilege, or their status as counsel's work-product. In this jurisdiction, however, the first of such privileges is subject to two statutory exceptions which are relevant here. *fn1 Further, since appellant was given prompt access to all of the Government's psychiatric records, Rule 16(c), Fed.R.Crim.P., would appear to contemplate that similar records in the hands of the defense should be accessible to the Government. *fn2
Where the mental state of an accused is at issue in a criminal case, it is, as the Government asserts in its brief, "in the interest of public justice" for the trial court to permit "both the Government and the defendant full access to the reports and conclusions of all psychiatric witnesses" in order to enable the trial court "to present a complete exploration of the mental state of the accused to the jury." This is a proposition with which this court is fully in accord; and one which overrides the claims founded upon the attorney-client relationship. The latter privilege, in any event, seems inoperative here for the reason that the defense expert's opinion, as expressed in the notes and letter, had been immediately communicated by him to a representative of the Government.
Appellant asserts, however, that even if the court properly made the notes available to the prosecution, the court should not have permitted the prosecutor to read from them in the jury's presence. The matter arose in this wise: Detecting an inconsistency between the witness's testimony at trial and an expression of opinion contained in the notes, the prosecutor proposed to refresh the witness's recollection by reading from the notes and, if the apparent inconsistency was not resolved, by referring to the notes for impeachment of credibility. The court permitted the prosecutor to proceed in this fashion. The witness endeavored to explain the apparent inconsistency, with debatable results; the court instructed that the matter could be considered by the jury as going only to the weight they should give to the witness's testimony; and the prosecutor so referred to it, without objection, in his closing argument. We find no departure from familiar norms of acceptable trial procedure.
Lastly, it is said that reversible error was committed when the trial court substituted for the standard instruction theretofore used on the consequences of a finding of not guilty by reason of insanity, the instruction more latterly prescribed by us in Bolton v. Harris, 130 U.S.App.D.C. 1, 10 n. 50, 395 F.2d 642, 651 n. 50 (1968). See also United States v. Grimes, 137 U.S.App.D.C. 184, 421 F.2d 1119 (1969), cert. denied, 398 U.S. 932, 90 S. Ct. 1831, 26 L. Ed. 2d 98 (1970). Defense counsel explicitly represented on the record that he had no objection to this substitution; and the error, if any, is surely not of the "plain" variety contemplated by Rule 52(b), Fed.R.Crim.P.