Defendant Istavan Szatmari has been indicted for the murder of his wife. He has interposed the defense of insanity. Pursuant thereto he was examined by phychiatrists for the State and the defense. Both psychiatrists have expressed the opinion that defendant was legally insane at the time of the alleged commission of the offense.
The State now seeks an order permitting a second psychiatric examination of defendant. Defendant resists and through counsel indicates that he will not consent to the same. There is no dispute as to defendant's fitness to proceed with trial.
It is well settled that directing a defendant to submit to a psychiatric examination does not violate his constitutional rights against self-incrimination. Evid. R. 25(a) N.J.S.A. 2A:84A-19; State v. Whitlow , 45 N.J. 3 (1965).
Counsel concede that there are no cases in this jurisdiction that address themselves to this specific question, but both cite State v. Whitlow, supra , and State v. Obstien , 52 N.J. 516 (1968), which, although they differ somewhat factually, are guidance to this court in the resolution of this issue.
In State v. Whitlow defendant entered a plea of not guilty by reason of insanity, was examined by a psychiatrist of his
own choosing, and then refused to submit to an examination by a state-selected psychiatrist. The court stated that:
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 . . . 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 * * *. In such case manifestly the State should be permitted to have a similar examination made by psychiatrists of its choosing. [45 N.J. at 10-11; emphasis supplied]
The Supreme Court called the psychiatric interview a "crucial diagnostic tool" and stated that "the judicial aim must be to make it an effective instrument of justice." Id. at 20. The court's concern was not with the number of examining psychiatrists but with each side having the opportunity to make "similar examinations" of the person who raises an insanity defense. It also noted that, "Obviously a desirable objective in such matters is to eliminate as much as possible the so-called battle of experts at a hearing or trial." Id. at 20.
This concept of "similar examinations" by both sides was endorsed in State v. Obstien, supra , where defendant had been examined by a defense psychiatrist but had made no offer of an insanity plea nor raised any psychiatric issue. The court found no need to have the defendant examined by a state psychiatrist because defendant had no plans to use the defense examination. It noted, however, that if the defense did raise a psychiatric issue based on the examinations, the State would be entitled to an examination of defendant necessary to meet the defense offer of an insanity defense. If the State were not given the opportunity for a similar examination, the defense use of the psychiatric examination would be circumscribed within the parameters of the information and opportunity that was made available to the State. 52 N.J. at 527-528.
Although both sides have been accorded similar examinations in this matter, the prosecutor urges the court to enter an order for a second opinion by a psychiatrist of its choosing for the reason that one of its obligations is to make a determination as to whether it will accept defendant's claim of insanity or dispute it. He points out that an evaluation of the alleged facts in this case show that there is a history of infidelity on the part of the victim which was known to defendant and that defendant had carried the weapon he allegedly used to shoot his wife ...