Justia Federal District Court Opinions

We consider on this appeal whether, when a defendant asserts, and supports through expert testimony, the defense of insanity, the guarantee of the Fifth Amendment against compelled self-incrimination is violated by a government psychiatrist's testimony to unrecorded statements made by the defendant during a court-ordered examination; whether the guarantee of the Sixth Amendment to assistance of counsel is violated by the exclusion of counsel from such an examination; and whether the courts' supervisory power over the trial process permits the exclusion of psychiatric testimony that is the product of a lawful examination.

By indictment of October 26, 1976, appellant was charged with first degree murder while armed, in violation of D.C.Code Secs. 22-2401, 22-3202, and two related weapons offenses. At arraignment counsel informed the court that appellant's defense to the charges would be insanity and moved pursuant to D.C.Code Sec. 24-301(a) for an order committing appellant to St. Elizabeths Hospital for examination to determine both competency to stand trial and capacity, at the time of the offense, to form an intent to commit the crimes with which he was charged.¹ 11/2/76 Tr. 3, 6-7. The motion was granted and appellant was committed. After two months of examinations, the staff at St. Elizabeths found that appellant was competent to stand trial, but had "probably lacked substantial capacity to appreciate the wrongfulness of his conduct, [and] to conform his conduct to the requirements of the law." Letter from Dr. Roger Peele, Acting Superintendent, dated Jan. 13, 1977, at 1. Soon after that, the Government moved to have appellant committed to the Medical Center for Federal Prisoners at Springfield, Missouri, for a second examination.² Over an unfocused defense objection, that motion was granted.³ Appellant was transferred to Springfield on February 25, 1977 and remained there for some six weeks, under the principal supervision of Dr. Nicola Kunev, manager of the Center's Forensic Unit. At the end of this examination period, Dr. Kunev and his staff concluded that appellant was competent to stand trial and that he had been capable of appreciating the wrongfulness of his conduct and of conforming that conduct to the requirements of the law at the time of the alleged offense. A report outlining these conclusions was prepared by the staff and forwarded to the court.

Trial of the case began on January 18, 1978. Appellant did not contest the substance of the charge, which was that he had shot and killed his lover of seven years who had left him the month before. Instead, as expected, he vigorously pressed his defense that he was insane at the time of the offense, specifically alleging that he was under the delusion that the decedent had cast a spell on him and had killed her to break free of its influence. He elicited testimony from various relatives, neighbors and medical experts. The testimony of three of these witnesses was of particular importance to the defense. The first was appellant's estranged wife, who had left him because of his relationship with the decedent. She testified that appellant told her before she left that he wanted to salvage their relationship but he could not end his affair with the decedent because she had cast a spell on him. Appellant had reaffirmed his belief in the spell, she said, when she confronted him about a small vial marked "spell remover" which she claimed she had found in his clothing.

The second, Dr. David L. Shapiro, a clinical psychologist who had examined appellant during his commitment to St. Elizabeths, testified that he believed appellant suffered from "an underlying paranoid delusion," 1/25/78 Tr. 90, as a result of which he felt "controlled by and unable to break out of the [decedent's] power," id. at 94. He related that appellant had told him that the decedent "was engaged in a practice known as taking roots." Appellant had explained that the roots were passed to him when the decedent forced him to participate in sex acts with her during menses. Appellant believed he could free himself from decedent's spell if he could stay away from her for forty-two days but that, "somehow she would always edge near. She would come back into his life and regain control over him somewhere ... within the 42-day period," id. at 95-96. Although Dr. Shapiro admitted he had "nagging doubts" because, among other things, appellant's recitals lacked conviction, 1/26/78 Tr. 140-41, 143-44, his conclusion was that the murder was the product of this delusional system.

The third witness, Dr. Glen H. Miller, a psychiatrist at St. Elizabeths who also had examined appellant, testified that appellant had described the spell to him. Based primarily on this description, but informed also by the reports of test results and presentations by his colleagues, Dr. Miller generally concurred in Dr. Shapiro's diagnosis. His judgment, too, was qualified to the extent that he believed appellant's was not "an absolutely clear-cut case." 1/31/78 Tr. 177.

Following this defense testimony, Dr. Emry A. Varhely, a clinical psychologist at the Medical Center for Federal Prisoners, and Dr. Kunev testified for the Government in rebuttal. Both had examined appellant while he was at the Springfield facility pursuant to the court's order. Appellant had told Dr. Varhely, as he had the staff at St. Elizabeths, that he believed the decedent had cast a spell on him. After further discussion with appellant, however, Dr. Varhely came to the judgment that Byers suffered not from paranoid delusion, that is, "a set of false beliefs, cohesive in nature ... [that] overshadows the whole sphere of action of that individual"; but rather from "magical thinking or superstitious type of belief" not rising to the level of a mental illness. 2/1/78 Tr. 91. He was thus of the opinion that at the time of the offense, appellant was not suffering from a mental disease and was fully able to appreciate the wrongfulness of his conduct.

Dr. Kunev's testimony followed. It is his testimony and the circumstances surrounding his interview of appellant with which we are concerned on this appeal. Dr. Kunev briefly related how appellant had described his relationship with the decedent, and his sense of rejection when she had rebuffed his overtures of marriage. Then, despite defense counsel's objection, but after noting that the defense would have "a free field for cross-examination," 2/7/78 Tr. 133, the court permitted Dr. Kunev to recount the following about his initial interview of appellant shortly after the latter's arrival in Springfield:

I asked Mr. Byers as to his understanding for the reason of the shooting.

He said that he has no explanation and no reason, but he has been thinking about it.

I asked him, since that has been several months since the incident if he has some idea what might have been the reason for the shooting.

He said that this is a question that Mrs. Byers asked him about the time that he was admitted to St. Elizabeths Hospital on November 11th, 1976, and that his answer to her was the same, that he has no answer for why did he shoot Mrs. Dickens.

At that time, Mr. Byers said that Mrs. Byers suggested to him that this could be under the influence of some magic, spells or some influence of roots.

And Mr. Byers said that not having any other explanation, this appeared as a possible answer to the reason for the shooting.⁴

Id. at 138-39 (emphasis added). Dr. Kunev took appellant's statements overall, and the italicized portion in particular, to demonstrate that the notion of supernatural influences working upon the defendant entered his mind after the murder and thus was irrelevant to his mental state at that time. On the basis of this interpretation he testified that in his opinion appellant had been sane.⁵

Dr. Kunev's testimony substantially discredited appellant's insanity defense. The trial court characterized it as "very devastating," 2/9/78 Tr. 35, and suggested that it would "take the wind out of the defendant's sails and perhaps ... torpedo [him] out of the water," id. at 82. The prosecution's summation called it the "critical thing" in the Government's case, and pointed to it as proof that appellant's insanity defense was a rationalization constructed weeks after the shooting had occurred. 2/10/78 Tr. 236.

The jury found appellant guilty of second-degree murder and of both weapons offenses. An appeal was taken in which a number of errors was assigned. On December 24, 1980, this court, with Judge Bazelon in dissent, affirmed the convictions in a brief, per curiam opinion. A petition by appellant for rehearing, with a suggestion for rehearing en banc followed on March 10, 1981. While that petition was pending, the Supreme Court rendered its decision in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), sustaining Fifth and Sixth Amendment challenges to a psychiatrist's testimony in the sentencing phase of a capital case based on pre-trial examination of the defendant to determine competency to stand trial. We requested and received memoranda from the parties on the effect, if any, of Estelle on the Fifth and Sixth Amendment arguments made by appellant in his petition for rehearing. We also invited the American Psychological Association and the American Psychiatric Association to submit amicus briefs on these arguments, which they did; both parties were then permitted to respond to these briefs. Appellant's request for rehearing en banc was granted November 24, 1982, after which we instructed the parties to file supplemental briefs addressing the additional questions whether the court should exercise its supervisory power in this case, and whether the constitutional and supervisory power issues had been properly raised below. We heard argument on February 2, 1983. We entered judgment against appellant in this appeal on May 19, 1983, 711 F.2d 420, noting that the instant opinion would follow.

FIFTH AMENDMENT

Appellant argues that the Fifth Amendment's proscription against compelled self-incrimination was violated by Dr. Kunev's testimony to statements made during the examination in Springfield. His claim is not that the testimony tended to show that he committed the murders; as noted, appellant did not contest this at trial. Rather, he contends that the Government forced from his lips (via the compelled examination) the evidence to negate his defense of insanity and thereby proved, indirectly through rebuttal, that he was of the necessary mind to commit the crimes. Since mens rea is an element of the offenses on which the Government had the burden of proof--indeed in this case it was the only contested issue--he argues that this was equivalent to a forced admission of guilt.⁶

Little guidance can be derived from our previous opinions on the applicability of the Fifth Amendment privilege against compelled self-incrimination to psychiatric examinations. We first touched upon the broad issue well over a decade ago in Thornton v. Corcoran, 407 F.2d 695 (D.C.Cir.1969), where we said in dictum--and for that reason over the dissent of then Circuit Judge Burger--that after Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Fifth Amendment would not admit of a principled distinction between the standards applicable to proof of factual guilt and those applicable to proof of the requisite mental state, since the Government bore the burden of proof with respect to both. 407 F.2d at 700. The clear implication was that the privilege against self-incrimination would apply with full force to compelled psychiatric examinations and interviews. The issue came before us again the next term, but was avoided without commentary. United States v. Marcey, 440 F.2d 281 (D.C.Cir.1971). Finally, we faced the question again four years ago, in United States v. Whitlock, 663 F.2d 1094 (D.C.Cir.1980). There we rejected the appellant's contention that her Fifth Amendment rights were violated by admitting the rebuttal testimony of Government psychiatrists who had examined her pursuant to court order. Our opinion stated, without analysis, that the question did not "generate grave concern," since although the testimony "incorporated statements by appellant regarding the manner in which she planned and committed the offense," it had been admitted (in a bench trial) solely on the issue of sanity.⁷ Moreover, appellant could not have been harmed since the fact of the offense was not even contested. Id. at 1107. Because the opinion gave no reasoned discussion (and hence perhaps no reasoned consideration) to the question of admissibility on the issue of sanity, and because it was applying a "plain error" test to an objection not raised below, id., it represents something short of a definitive resolution of the matter.

Appellant contends that the Supreme Court's decision in Estelle dictates the result in this case. But it does not. In the first place, Estelle was materially different on its facts. There the defendant had been examined by a State psychiatrist, at the court's order, to ascertain only his competency to stand trial. The State had later introduced the psychiatrist's testimony to demonstrate the defendant's future dangerousness at the penalty stage of the proceeding. The Court held that "[i]n these distinct circumstances," 451 U.S. at 466, 101 S.Ct. at 1874--which included the fact that the defendant had not raised before trial any issue of competency to stand trial or sanity at the time of the offense, had introduced no evidence regarding insanity, and had been given no notice that results of the competency examination could be used against him at the sentencing stage of the proceeding--the defendant had been denied his Fifth Amendment rights. Moreover, the Court expressly distinguished Estelle from a case such as we now have before us:

Nor was the interview analogous to a sanity examination occasioned by a defendant's plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist.

451 U.S. at 465, 101 S.Ct. at 1874 (citations omitted). And its holding was specifically limited to account for the perceived difference:

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.

Id. at 468, 101 S.Ct. at 1875 (emphasis added). Thus, if Estelle has any bearing upon the present case, it is that it suggests by its dicta that no Fifth Amendment protection may exist.

While we have no firm and directly relevant authority in our own opinions or in the holdings of the Supreme Court, virtually all other circuits have addressed claims materially indistinguishable from that raised by appellant. They have uniformly held that where the defendant has interposed the defense of insanity, the Fifth Amendment's privilege against self-incrimination is not violated by a court-ordered psychiatric examination (whether by a psychiatrist appointed by the court or one selected by the Government); and that where the defendant introduces psychiatric testimony at trial, the Fifth Amendment does not prevent testimony by the psychiatrist who conducted the court-ordered examination on the issue of sanity.⁸ See, e.g., United States v. Madrid, 673 F.2d 1114 (10th Cir.), cert. denied, 459 U.S. 843, 103 S.Ct. 96, 74 L.Ed.2d 88 (1982); United States v. Reifsteck, 535 F.2d 1030 (8th Cir.1976); United States v. Cohen, 530 F.2d 43 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Bohle, 445 F.2d 54 (7th Cir.1971), overruled on other grounds in United States v. Lawson, 653 F.2d 299, 303 n. 12 (7th Cir.1981); United States v. Handy, 454 F.2d 885 (9th Cir.1971), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Weiser, 428 F.2d 932 (2d Cir.1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 (1971); United States v. Baird, 414 F.2d 700 (2d Cir.1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970); United States v. Albright, 388 F.2d 719 (4th Cir.1968); Alexander v. United States, 380 F.2d 33 (8th Cir.1967); Pope v. United States, 372 F.2d 710 (8th Cir.1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971); accord, United States v. Reason, 549 F.2d 309 (4th Cir.1977). The only district court opinion in this circuit to address the Fifth Amendment question ruled similarly. Battle v. Cameron, 260 F.Supp. 804 (D.D.C.1966).

Various justifications for denying the claim have been advanced by these courts. The Eighth Circuit, in a case remarkably similar to the one before us, Pope v. United States, supra, was perhaps the first federal circuit to reach the issue. Then Circuit Judge Blackmun, writing for the en banc court, relied at least alternatively upon the theory that the defendant had "waived" the Fifth Amendment protection by voluntarily making psychiatric evaluation an issue in the case. 372 F.2d at 720. The Ninth Circuit, in United States v. Handy, supra, likened compelled psychiatric examination to "compelling blood tests, handwriting exemplars, 'fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.' " 454 F.2d at 889 (footnote omitted), quoting from Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). Thus, it reasoned, the psychiatric interview compelled neither "communications" nor "testimony," but "real or physical" evidence, and for that reason was not entitled to Fifth Amendment protection. See also United States v. Cohen, supra, 530 F.2d at 48; Battle v. Cameron, supra, 260 F.Supp. at 806. A Second Circuit case, again factually quite similar to the one here, United States v. Baird, supra, in effect combined the first two theories. It disapproved the notion of a naked "waiver," but found that the defendant's implicit reliance upon the theory that statements made in psychiatric examinations are "real or physical evidence" in order to have his expert's testimony received despite the hearsay rule, created an estoppel against objection to the Government's reliance upon the same theory to overcome the Fifth Amendment bar. 414 F.2d at 709. See also United States v. Weiser, supra, 428 F.2d at 936. Finally, in a fourth category of cases, the Fifth Amendment claim has been rejected in whole or in part because of a belief that the privilege against self-incrimination narrowly reaches only statements introduced to show that the defendant actually committed the offense in question, but not statements brought in on the issue of sanity. See, e.g., United States v. Whitlock, supra, 663 F.2d at 1107; United States v. Bohle, supra, 445 F.2d at 66-67; United States v. Albright, supra, 388 F.2d at 725.

We rely upon none of these rationales. The second of them has been categorically rejected, and the last cast in grave doubt, by the Supreme Court's decision in Estelle v. Smith, supra. There the State urged, as the Ninth Circuit in Handy had held, that Smith's communications to the court-appointed psychiatrist during an examination limited to competency to stand trial were nontestimonial in character, and specifically sought support by way of analogy to the Court's decisions in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplar), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar), United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (lineup), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood sample). The Court dismissed the argument out of hand. The psychiatrist's prognosis had been based on statements made to him by respondent Smith, and he had related the "substance" of these statements; this was sufficient, the Court said, to implicate directly the Fifth Amendment. The State also contended that "incrimination is complete once guilt has been adjudicated," 451 U.S. at 462, 101 S.Ct. at 1872, and therefore that the Fifth Amendment did not prohibit introduction of Smith's statements at the sentencing phase of the bifurcated trial. This is similar (though not identical) to the reasoning set forth in Whitlock, that no Fifth Amendment problem is presented as long as the statements are admitted on the question not of guilt, but of sanity--the dichotomy suggested by 18 U.S.C. Sec. 4244 and Fed.R.Crim.P. 12.2(c). This argument too was rejected, the Court reiterating what it said in In re Gault, 387 U.S. 1, 49, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 (1967):

"the availability of the [Fifth Amendment] privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites."

451 U.S. at 462, 101 S.Ct. at 1872. Because the possible consequence of Smith's statements to the psychiatrist was imposition of the death penalty, the court held the Fifth Amendment applied to the examination. A similar conclusion would seem compelled with regard to statements to a psychiatrist that are introduced to achieve the consequence of eliminating an insanity defense and thus obtaining a conviction.

As for the other two theories discussed above: It seems to us at best a fiction to say that when the defendant introduces his expert's testimony he "waives" his Fifth Amendment rights. What occurs is surely no waiver in the ordinary sense of a known and voluntary relinquishment, but rather merely the product of the court's decree that the act entails the consequence--a decree that remains to be justified. Even if the average defendant pleading insanity were aware of this judicially prescribed consequence (an awareness that the doctrine of waiver would normally require), his acceptance of it could hardly be called unconstrained. And although "the Constitution does not forbid 'every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights,' " Jenkins v. Anderson, 447 U.S. 231, 236, 100 S.Ct. 2124, 2128, 65 L.Ed.2d 86 (1980), quoting from Chaffin v. Stynchombe, 412 U.S. 17, 30, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973), it is doubtful whether such a "waiver" could meet the high standard required for a voluntary, "free and unconstrained," Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961), relinquishment of the Fifth Amendment privilege. See, e.g., Miranda v. Arizona, supra, 384 U.S. at 475-76, 86 S.Ct. at 1628-29. We are no more persuaded by the "estoppel" argument. Defendants in appellant's position make no representations or promises, either express or implied in fact. And we think that the proper scope of any implied-in-law promise would be that they would not object to the Government's use of the "physical evidence" theory for the same purpose of overcoming the hearsay rule. The Fifth Amendment objection would remain--especially since, as noted above, the Supreme Court has explicitly rejected the "physical evidence" theory in that application.

All of these theories are easy game, but it is not sporting to hunt them. The eminent courts that put them forth intended them, we think, not as explanations of the genuine reason for their result, but as devices--no more fictional than many others to be found--for weaving a result demanded on policy grounds unobtrusively into the fabric of law. Whether they have described this policy as the need to maintain a "fair state-individual balance" (one of the values underlying the Fifth Amendment set forth in Murphy v. Waterfront Commission, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964) (citation omitted)), see, e.g., United States v. Albright, supra, 388 F.2d at 724; United States v. Bohle, supra, 445 F.2d at 67, or as a matter of "fundamental fairness," see, e.g., Pope v. United States, supra, 372 F.2d at 720, or merely a function of "judicial common sense," see, e.g., Alexander v. United States, supra, 380 F.2d at 39; United States v. Reifsteck, supra, 535 F.2d at 1034, they have denied the Fifth Amendment claim primarily because of the unreasonable and debilitating effect it would have upon society's conduct of a fair inquiry into the defendant's culpability. As expressed in Pope:

It would be a strange situation, indeed, if, first, the government is to be compelled to afford the defense ample psychiatric service and evidence at government expense and, second, if the government is to have the burden of proof, ... and yet it is to be denied the opportunity to have its own corresponding and verifying examination, a step which perhaps is the most trustworthy means of attempting to meet that burden.

372 F.2d at 720. We agree with this concern, and are content to rely upon it alone as the basis for our rejection of the Fifth Amendment claim. We share the dissent's solicitude for the "private enclave of the human personality," Dissent at 1151. But when, as here, a defendant appeals to the nature of that enclave as the reason why he should not be punished for murder, and introduces psychiatric testimony for that purpose, the state must be able to follow where he has led.

Appellant and amici would have us believe that the mere availability of cross-examination of the defendant's experts is sufficient to provide the necessary balance in the criminal process. That would perhaps be so if psychiatry were as exact a science as physics, so that, assuming the defense psychiatrist precisely described the data (consisting of his interview with the defendant), the error of his analysis could be demonstrated. It is, however, far from that. Ordinarily the only effective rebuttal of psychiatric opinion testimony is contradictory opinion testimony; and for that purpose, as we said in Rollerson v. United States, 343 F.2d 269, 274 (D.C.Cir.1964), "[t]he basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject."

Our judgment that these practical considerations of fair but effective criminal process affect the interpretation and application of the Fifth Amendment privilege against self-incrimination is supported by the long line of Supreme Court precedent holding that the defendant in a criminal or even civil prosecution may not take the stand in his own behalf and then refuse to consent to cross-examination. See, e.g., Fitzpatrick v. United States, 178 U.S. 304, 20 S.Ct. 944, 44 L.Ed. 1078 (1900) (criminal prosecution); Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (civil denautralization proceeding). The justification for this similarly "coerced" testimony is precisely that which we apply to the present case. As said in Brown, a defendant

cannot reasonably claim that the Fifth Amendment gives him not only this choice [whether to testify or not] but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell. ... The interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.

356 U.S. at 155-56, 78 S.Ct. at 626-27 (footnote & citation omitted).

In the dissent's view, the process of determining where the right to remain silent ends and the society's need to require testimony begins is to be conducted not merely on the basis of self-incrimination concerns, but with an eye to unrelated constitutional guarantees as well. The issue here, it asserts, is not whether the defendant who wishes to bring forward psychiatric evidence can decline psychiatric examination, but rather whether he can decline such examination in absence of tape recording, Dissent at 1155-1157.⁹ That safeguard, of course, has nothing to do with the values and concerns underlying the right not to incriminate oneself, but pertains instead to the right not to be convicted on the basis of unreliable evidence. It is a due process rather than a self-incrimination issue, and there is no reason in law or logic why the due process clause should be given special application in cases that happen to involve self-incrimination issues as well. Why, for example, is videotaping a defendant's statements to a psychiatrist any more important than videotaping an oral confession, where the same need exists to assure that the statement is accurately reported at trial and is not the product of suggestiveness? Indeed, where the oral confession is made to a police officer there would seem to be much greater reason to insist upon such protection; but there is no such rule. See, e.g., Ashdown v. Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443 (1958). What the dissent does, in other words, is to seize upon the self-incrimination issue as a means of importing into this case unrelated (and elsewhere nonexistent) constitutional guarantees. The choice before us in the Fifth Amendment aspect of this case--whether or not to compel the defendant to testify--is converted into a veritable constitutional delicatessen, in which we can pick and choose among various exotic protections for inclusion in the defendant's basket. We can of course decree that testimony will not be required unless a videotape is made--just as we can decree that it will not be required unless counsel is allowed to be present, or unless the defendant's statements are corroborated by three independent witnesses or the psychiatrist's testimony heard by an 18-person jury. But such fiats would be appended to, rather than contained within, the self-incrimination clause of the Fifth Amendment.

A particularly odd selection from among the available constitutional savories is the dissent's requirement that a "Miranda-type warning" be provided before the psychiatric examination, Dissent at 1158-1159. We are tempted to suggest that the goal of erecting what the dissent considers the necessary distrust might be more effectively achieved by requiring the examining psychiatrist to wear a police uniform. (As the dissent notes, "[t]he Constitution ... is not wedded to particular technologies," id. at 1157 n. 116.) The proposal obviously has the effect, if not the purpose, of depriving the examination of whatever validity it might contain. It has nothing whatever to do with the rule of Miranda, which was designed to assure the voluntariness of testimony that was not required by law. If a similar warning served any purpose here, it would not be to induce the defendant to remain silent where he has a right to do so, but to induce him to withhold legally required testimony, or to dissemble.

Accordingly, we reject appellant's claim that his privilege against compelled self-incrimination was denied by Dr. Kunev's testimony. We hold that when a defendant raises the defense of insanity, he may constitutionally be subjected to compulsory examination by court-appointed or government psychiatrists without the necessity of recording; and when he introduces into evidence psychiatric testimony to support his insanity defense, testimony of those examining psychiatrists may be received (on that issue) as well.

SIXTH AMENDMENT

In addition to the Fifth Amendment objection, appellant claims that his Sixth Amendment guarantee of assistance of counsel¹⁰ was violated when he was examined at Springfield, without his lawyer present, after commencement of criminal proceedings. Because the availability of a Sixth Amendment claim does not necessarily turn upon the existence of a Fifth Amendment right against compelled self-incrimination, United States v. Wade, 388 U.S. 218, 223, 226, 87 S.Ct. 1926, 1930, 1931, 18 L.Ed.2d 1149 (1967), we must separately consider this aspect of the appeal.¹¹

This court has never been presented with this specific question. On a number of occasions, however, we have faced, but found it unnecessary to decide, the claim that a criminal defendant's Sixth Amendment rights were violated by failure to permit his attorney to attend psychiatric staff conferences leading to an evaluation (for subsequent introduction at trial) of his mental state at the time of the crime. See United States v. Canty, 469 F.2d 114, 121 (D.C.Cir.1972); United States v. Marcey, 440 F.2d 281, 284-85 (D.C.Cir.1971); United States v. Eichberg, 439 F.2d 620, 621 n. 1 (D.C.Cir.1971); Thornton v. Corcoran, supra, 407 F.2d at 702. In the last cited of these cases we opined that that claim--which on its face would seem less substantial than the current one, since it involved proceedings in which the defendant himself was not even a participant--was "anything but frivolous," and indeed of "constitutional dimensions" if the right to cross-examination could not be protected through any other means.¹² 407 F.2d at 702.

At the time this dictum was written, it had credible support in Supreme Court precedent. The governing case on the issue of what constituted a "critical stage" of prosecution, at which the right to assistance of counsel applied, was United States v. Wade, supra, which found the right applicable to a post-arraignment lineup. The language of that opinion seemed to suggest that counsel had to be permitted to attend pretrial proceedings in which the existence of unfairness and inaccuracy could not otherwise be detected and challenged at trial. Thus, various other steps preparatory to trial, such as "systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like," where counsel is not required, were distinguished from lineups on the ground that "[k]nowledge of the techniques of science and technology is sufficiently available ... that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts," so that "there is minimal risk that ... counsel's absence at such stages might derogate from his right to a fair trial." 388 U.S. at 227-28, 87 S.Ct. at 1932-33. By contrast, the Court said, "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification," id. at 231-32, 87 S.Ct. at 1934-35. As the Court summarized its holding on this aspect of the case:

Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution.

Id. at 236-37, 87 S.Ct. at 1937 (footnote omitted). The Court neither mentioned any distinctively legal decisions which the defendant would have to make at the lineup, for which the expert advice of counsel would be needed, nor stressed the fact that the lineup involves a personal confrontation between the prosecution and the defendant himself. The opinion was, in short, well susceptible of the interpretation that our dictum in Thornton gave it--that the Sixth Amendment requires counsel's presence as a witness at post-arraignment proceedings whenever that is necessary to enable the fairness or accuracy of those proceedings to be effectively challenged at trial.

As we later learned, however, this interpretation of Wade was mistaken--or in any event superseded. In United States v. Ash, 461 F.2d 92 (D.C.Cir.1972) (en banc), we were confronted with the question whether right to counsel obtained at a post-indictment, pretrial photograph display for witness identification of a suspected offender. Relying upon the analysis of Wade, the five-to-four majority opinion held that it did. The Supreme Court reversed, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), describing the essence of the majority's error as follows:

We conclude that the dangers of mistaken identification, mentioned in Wade, were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although Wade did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the "Assistance of Counsel" to preserve the adversary process by compensating for advantages of the prosecuting authorities.

413 U.S. at 314, 93 S.Ct. at 2576. In the case of the lineup involved in Wade, the Court said, "[t]he similarity to trial was apparent, and counsel was needed to render 'Assistance' in counterbalancing any 'overreaching' by the prosecution." Id. In the case of photo displays, on the other hand, "[s]ince the accused himself is not present ... no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary." Id. at 317, 93 S.Ct. at 2577. The right to counsel therefore did not apply.¹³

The dissenting Justices in Ash claimed that the majority was rewriting rather than applying Wade. 413 U.S. at 326-44, 93 S.Ct. at 2581-91 (Brennan, J., dissenting). Be that as it may, Ash sets forth what is now unquestionably the governing test. See, e.g., Moore v. Illinois, 434 U.S. 220, 227 n. 3, 98 S.Ct. 458, 464 n. 3, 54 L.Ed.2d 424 (1977) (quoting extensively from Ash). It is a test under which, as the initial criterion of Sixth Amendment applicability, the accused must find himself "confronted, just as at trial, by the procedural system, or by his expert adversary, or by both." United States v. Ash, supra, 413 U.S. at 310, 93 S.Ct. at 2574.¹⁴ The two elements of this criterion are repeated several times later in the opinion, when the Court says that "the accused [must] require[ ] aid in coping with legal problems or assistance in meeting his adversary," id. at 313, 93 S.Ct. at 2575, and that the Sixth Amendment protection does not apply if there is "no possibility ... that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary," id. at 317, 93 S.Ct. at 2577. Evidently, the defendant must be confronted either with the need to make a decision requiring distinctively legal advice--which may occur even in a context in which the prosecutor or his agents are not present--or with the need to defend himself against the direct onslaught of the prosecutor--which may require some skills that are not distinctively legal,¹⁵ such as the quality mentioned in Wade, of being "schooled in the detection of suggestive influences," 388 U.S. at 230, 87 S.Ct. at 1934 (footnote omitted).

It is obvious that neither condition exists here. Byers was confronted by the procedural system at the point at which he had to decide whether to raise the insanity defense, a determination that would have several legal consequences, including the likelihood of a court order that he undergo psychiatric examination, see Fed.R.Crim.P. 12.2(c). At that stage, assistance of counsel was provided. He was likewise confronted by the procedural system at the point at which he had to decide whether to introduce psychiatric testimony on his own behalf--which would have the effect of permitting the Government to introduce psychiatric testimony to the contrary. There also, assistance of counsel was provided. But at the psychiatric interview itself, he was not confronted by the procedural system; he had no decisions in the nature of legal strategy or tactics to make--not even, as we have seen, the decision whether to refuse, on Fifth Amendment grounds, to answer the psychiatrist's questions. The only conceivable role for counsel at the examination would have been to observe. Appellant acknowledges as much. See Memorandum in Support of Petition for Rehearing at 10.

The foregoing discussion explains why the holding of Estelle v. Smith, supra, has relevance to this case. There counsel had not been advised, in advance of his client's pretrial psychiatric examination to determine competency to stand trial, that the psychiatrist would attempt to assess in addition the accused's future dangerousness, for use in any subsequent sentencing hearing--which use was later made. The accused had neither pleaded insanity nor given any notice of intent to plead insanity, and clearly had a Fifth Amendment right to decline to undergo the psychiatric inquiry for sentencing purposes. In that inquiry, therefore, although the defendant was not confronted by his adversary he was confronted "by the legal system," in that he had a law-related choice before him, and could have profited from the expert advice of counsel "in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed," 451 U.S. at 471, 101 S.Ct. at 1877. It was that, and that alone which (given the importance of the matter involved) caused the interview "to be a 'critical stage' of the aggregate proceedings against respondent," id. at 470, 101 S.Ct. at 1876--which is why the Court described its holding as affirming a Sixth Amendment right to assistance of counsel "before submitting to the ... psychiatric interview," id. at 469, 101 S.Ct. at 1876 (emphasis added). The Court specifically disavowed any implication of a "constitutional right to have counsel actually present during the examination," citing the dissent in our opinion in Thornton v. Corcoran, supra. Id. at 470 n. 14.¹⁶

As for the alternative condition for required assistance of counsel--that the defendant find himself "confronted ... by his expert adversary" or "by his professional adversary"--that did not exist here either. An examining psychiatrist is not an adversary, much less a professional one. Nor is he expert in the relevant sense--that is, expert in "the intricacies of substantive and procedural criminal law." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion). Appellant asserts the contrary, on the basis of language contained in that portion of the Estelle opinion dealing with the Fifth Amendment rather than the Sixth Amendment claim. The irrelevance of that language is apparent when it is quoted in full:

That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, respondent assuredly was "faced with a phase of the adversary system" and was "not in the presence of [a] perso[n] acting solely in his interest."

Estelle v. Smith, supra, 451 U.S. at 467, 101 S.Ct. at 1875, quoting Miranda v. Arizona, supra, 384 U.S. at 469, 86 S.Ct. at 1625. All this establishes is that the psychiatrist's "role changed" and became "like that of an agent of the state" when he testified. Far from proving that he was the defendant's "expert adversary" during the examination, it suggests just the opposite. As for the observation that the psychiatrist was not "acting solely in [the defendant's] interest" during the examination, and that the examination was "a phase of the adversary system": The same can be said of us judges and of the proceedings in which we participate--yet we are surely not the "professional adversaries" Ash had in mind, because we (like the examining psychiatrist up until the point of his testimony) do not participate as adversaries. The fact is that the Fifth Amendment issue under discussion in this portion of Estelle, namely, whether the interrogation was sufficiently "custodial" to require warnings against self-incrimination, see Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, is quite different from the Sixth Amendment issue of whether the interrogator is the defendant's "professional adversary." The test used for the one should not be expected to be the test used for the other--as the language of Estelle confirms. Even if the opinion had, in the Fifth Amendment context, unrealistically given psychiatrists the same "professional adversary" label, one could not transfer that label to the Sixth Amendment portion of the opinion without attributing to the Court a decision it simply did not have in mind. Indeed, if the Fifth Amendment portion of Estelle had established what the dissent suggests, the Sixth Amendment portion could have been significantly shortened, thusly: "Since, as noted above, the defendant was confronted by his professional adversary, Sixth Amendment protections applied as well." In fact, however, the Court found it necessary to establish another ground for application of the counsel guarantee--explicitly noting, in the process, that it was not finding any right to counsel during the psychiatric interview. 451 U.S. at 470 n. 14, 101 S.Ct. at 1876 n. 14.

Even if a psychiatric interview otherwise met one of the two theoretical tests for Sixth Amendment protection, it would be relevant to consider the pragmatic effects of presence of counsel upon the process. The Sixth Amendment, like the Fifth (as we have earlier discussed), is not oblivious to practical consequences. In Wade, for example, the Court felt constrained to note that "[n]o substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel." 388 U.S. at 237, 87 S.Ct. at 1937. That is not so here. The "procedural system" of the law, which is one justification for the presence of counsel and which, by the same token, the presence of counsel brings in its train, is evidently antithetical to psychiatric examination, a process informal and unstructured by design. Even if counsel were uncharacteristically to sit silent and interpose no procedural objections or suggestions, one can scarcely imagine a successful psychiatric examination in which the subject's eyes move back and forth between the doctor and his attorney. Nor would it help if the attorney were listening from outside the room, for the subject's attention would still wander where his eyes could not. And the attorney's presence in such a purely observational capacity, without ability to advise, suggest or object, would have no relationship to the Sixth Amendment's "Assistance of Counsel."

The last point is an additional reason for rejecting the appellant's and the dissent's suggestion that the Sixth Amendment requires the psychiatric interview to be recorded. Memorandum in Support of Petition for Rehearing at 11-12; Dissent at 1171-1173. Whatever the feasibility of such a practice, we can find no basis for it in the Sixth Amendment. Its only utility would be to record events (the precise questions of the psychiatrist and the precise responses of the defendant) that are otherwise difficult to reconstruct. But as Ash made completely clear, "lack of scientific precision and inability to reconstruct an event are not the tests" for application of the Sixth Amendment guarantee.¹⁷ 413 U.S. at 316, 93 S.Ct. at 2577. They are not the tests because preservation of evidence for trial is not the Amendment's purpose. In Wade, for example, the reason for requiring attendance of counsel was not that he might silently witness the lineup, but that he might "serve both his client's and the prosecution's interests by objecting to suggestive features of a procedure before they influence a witness' identification." Moore v. Illinois, 434 U.S. 220, 225, 98 S.Ct. 458, 463, 54 L.Ed.2d 424 (1977), citing United States v. Wade, supra, 388 U.S. at 236, 238, 87 S.Ct. at 1937, 1938. See also 434 U.S. at 230, 98 S.Ct. at 465. Using the guarantee of counsel for the purpose of preserving evidence would make "[a] substantial departure from the historical test," and convert the Sixth Amendment into "a generalized protection of the adversary process." United States v. Ash, supra, 413 U.S. at 317, 93 S.Ct. at 2577. If recording the psychiatric examination here would provide effective "Assistance of Counsel," in the constitutional sense, by simply helping the defense attorney to establish the true facts (both of the accuracy of the psychiatrist's diagnosis and of the defendant's statements upon which that diagnosis was based); so would the recording of all witness interviews conducted by the prosecution, some of which can be even more crucial to the defendant, because of the risk of suggestiveness or coaching that can fix the witness's testimony and distort subsequent recollection. If the discussion at this point seems reminiscent of our earlier discussion concerning the Fifth Amendment, it is because the suggestion of recording as a substitute for assistance of counsel, like the suggestion of recording as a substitute for testimonial immunity, makes the consideration of one constitutional guarantee the occasion for creation of limitations that serve an entirely unrelated constitutional purpose. See pages 1114-1115, supra.

Recording psychiatric interviews may be a good idea, but not all good ideas have been embodied in the Constitution in general or the Sixth Amendment in particular. It is enough, as far as the constitutional minima of the criminal process are concerned, that the defendant has the opportunity to contest the accuracy of witnesses' testimony by cross-examining them at trial, and introducing his own witness in rebuttal. And it is enough that Byers had the opportunity to contest the accuracy of both the details and the conclusion of Dr. Kunev's analysis by cross-examining him (pointing out, as he did, that the crucial statement on which Kunev based his conclusion was not reflected in the psychiatrist's summary of the interview), by himself denying the statements attributed to him, by introducing other witnesses to show that the statement Kunev attributed to him was not true (as again he did, introducing his wife to testify that she had not first suggested the theory of "spell"), and by introducing the contrary conclusion of other psychiatrists.

This Sixth Amendment claim, like the Fifth Amendment claim we discussed earlier, has been squarely addressed and uniformly rejected by other circuits. See United States v. Bohle, supra, 445 F.2d at 67; United States v. Smith, supra, 436 F.2d at 790; United States v. Baird, supra, 414 F.2d at 711-12; United States v. Albright, supra, 388 F.2d at 726-27; accord, United States v. Cohen, supra, 530 F.2d at 48; United States v. Greene, 497 F.2d 1068, 1079-80 (7th Cir.1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975); United States v. Trapnell, 495 F.2d 22, 24-25 (2d Cir.1974); United States ex rel. Wax v. Pate, 409 F.2d 498 (7th Cir.1969). We join them for the reasons set forth above.

THE SUPERVISORY POWER

Explicit appeal to the court's supervisory power to exclude evidence was not made in the trial court, and the issue has been briefed here only by our express invitation. In our view the issue is not properly before us, since the defendant did not even raise below any concerns that are the proper object of that power. We add this section to our opinion to demonstrate the latter point, which demonstration is simultaneously a response to the dissent's argument on the merits.

The dissent argues that we have authority to implement "good ideas" under our supervisory power, Dissent at 1173, and proceeds to discuss this issue as though the question were whether a district judge, when ordering required psychiatric interviews, could and should require taping (or, as Judge Edwards would have it, merely some record). Whatever may be the proper resolution of that question--for which purpose there should be considered not only the majority's dictum in Thornton v. Corcoran, 407 F.2d 695, 702 (D.C.Cir.1969), which the dissent cites, but also the dissent of then Judge Burger in the same case, id. at 703-04, 709-11, which was cited approvingly by the Supreme Court in Estelle, supra, 451 U.S. at 470 n. 14, 101 S.Ct. at 1876 n. 14--it happens not to be the question before us here. Any supervisory power the district court may possess with regard to the ordering of psychiatric examinations was in fact not used to implement the dissent's "good idea," and the issue here presented is whether the district court's supervisory power with regard to the conduct of trial could and must have been used to exclude incriminating evidence because of lack of taping. That issue is not even doubtful.

[T]he court's inherent power to refuse to receive material evidence is a power that must be sparingly exercised....

The function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. Proper fulfillment of this function requires that, constitutional limitations aside, all relevant, competent evidence be admissible, unless the manner in which it had been obtained--for example, by violating some statute or rule of procedure--compels the formulation of a rule excluding its introduction in a federal court.

Lopez v. United States, 373 U.S. 427, 440, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963). The Supreme Court's last holding sanctioning the use of the supervisory power to exclude evidence is now almost twenty-five years old. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). That case involved evidence acquired by the government through unconstitutional means. More recent cases make it clear that not even all cases of illegal acquisition--and indeed not even all cases of unconstitutional acquisition--justify exclusion. In United States v. Payner, 447 U.S. 727, 735, 100 S.Ct. 2439, 2446, 65 L.Ed.2d 468 (1980), the Court held that "the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court." That opinion contains the following analysis relevant to the present question (and perhaps relevant as well to the quite different exercise of the supervisory power which the dissent addresses):

The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. In either case, the need to deter the underlying conduct and the detrimental impact of excluding the evidence remain precisely the same.

Id. at 736, 100 S.Ct. at 2447. Here the dissent seeks to make up the deficiencies in its Fifth and Sixth Amendment analysis by shifting the context of the discussion to the supervisory power. Payner holds that cannot be done.

It is in fact difficult to imagine a less auspicious case for invocation of the supervisory power to exclude evidence. In the first case in which the Supreme Court invoked the doctrine, applying it to exclude testimony based upon unconstitutionally seized evidence, the expressed justification was that only by depriving unlawful police conduct of its benefits could it be deterred. McNabb v. United States, 318 U.S. 332, 340-47, 63 S.Ct. 608, 612-16, 87 L.Ed. 819 (1943). Here, by contrast, the dissent (to the extent it is addressing concerns other than Fifth and Sixth Amendment concerns impermissibly smuggled in under the cover of supervisory power) proposes that we set a convicted murderer free in order to deter ourselves from inadequate use of our supervisory power over psychiatric examinations.

In sum: Assuming (as we do not believe to be true) that it was an abuse of discretion for the district court not to have used supervisory power over court-ordered psychiatric examinations to require taping (or recording), a challenge could have been raised by resisting the allegedly improper examination on that ground. That was not done. The only issues now before the court are (1) whether a Fifth or Sixth Amendment violation has occurred--acknowledged bases for excluding the evidence thus obtained, and (2) whether the permissible purposes for use of the supervisory power over trial, i.e., purposes other than meeting the same concerns addressed by the Fifth and Sixth Amendments, see United States v. Payner, supra, required its application to exclude the evidence here. We addressed the first issue in the earlier sections of this opinion. As to the latter, no conceivable permissible purpose exists in this case (where no unlawful activity has occurred) except self-deterrence. One can hardly consider that enough to comply with the Supreme Court's instruction that the exclusionary rule should be "restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). Even if one believes that mandating taping (or recording) of psychiatric interviews would be a "good idea," setting aside this murder conviction for the failure to implement that idea would seem to us a prime example of what the Supreme Court has disapprovingly called "unbending application of the exclusionary sanction to enforce ideals of governmental rectitude." United States v. Payner, supra, 447 U.S. at 734, 100 S.Ct. at 2445.

Affirmed.

SPOTTSWOOD W. ROBINSON, III, Chief Judge, with whom J. SKELLY WRIGHT, Circuit Judge, joins, concurring in the judgment:

Two principal issues have been placed before the court. One is whether the Government contravened the Sixth Amendment by conducting Byers' court-ordered psychiatric examination in the absence of his lawyer and without recording his interviews with the governmentally-employed psychiatrist.1 Byers argues that these omissions eviscerated his right to assistance of counsel by stripping his attorney of any meaningful opportunity to cross-examine the psychiatrist at trial.2 The second issue proffered is whether the Fifth Amendment was infringed by testimony of the psychiatrist which significantly impeded Byers' attempt to negate criminal charges by establishing an insanity defense.3

Though the court splits sharply on decision of these questions, the great majority of my colleagues believe they are properly before us. I am unable to concur in this determination. Because Byers neglected to raise either the Fifth or Sixth Amendment issue before the District Court, I would adhere to traditional canons of federal jurisprudence and decline to entertain them now.

During the course of the District Court proceedings, Byers made three objections implicating significantly the psychiatric examination of which he now complains. The first occurred several months before trial when the Government moved for, and the court ordered, Byers' temporary commitment to a federal facility at Springfield, Missouri, for such an examination. Byers resisted the motion on the grounds that this was unnecessary in light of his earlier examination at Saint Elizabeths' Hospital, in Washington, D.C., and that the remoteness of Springfield would subject him to needless hardship.4

During trial, an objection was registered against the introduction of testimony by Dr. Nicola Kunev, a psychiatrist employed at Springfield, which hinted strongly that Byers may, at his wife's suggestion, have concocted the theory of his insanity plea. Byers opposed this testimony primarily on the grounds that it lacked probative value and was extremely prejudicial,5 and he attempted to demonstrate that it was unreliable6--in his words, "total speculation."7 Byers' counsel also remarked briefly upon the difficulty of cross-examination occasioned by destruction of Dr. Kunev's interview notes and silence of the official interview reports on this aspect of his testimony.8

The third objection came at the close of trial when, in support of a motion for a new trial, Byers contended that the District Court had admitted Dr. Kunev's testimony9 in violation of a statute admonishing that statements made by an accused to his psychiatrist during an examination conducted pursuant to its provisions "shall [not] be admitted into evidence against the accused on the issue of guilt in any criminal proceeding."10

Contrary to an earlier representation to this court,11 Byers now would have us find that these three objections, cumulatively if not singly, tendered his present constitutional claims to the District Court sufficiently to warrant their consideration on appeal.12 In my view, they are wholly inadequate to that end.

Federal Criminal Rule 51 directs a party not only to "make[ ] known to the court the action which he desires the court to take or his objection to the action of the court," but also to explicate "the grounds therefor."13 This provision and its forerunners have consistently been interpreted to require an objection sufficiently clear and specific14 to apprise the trial court and opposing counsel of the claim distinctly, in order that the purported error may be addressed and hopefully cured at that time.15 Of equal importance to this litigation are holdings of the Supreme Court and other federal tribunals that vague or general objections do not suffice to preserve constitutional claims;16 in such cases, "the orthodox rule of evidence requiring specification of the objection is buttressed by the uniform policy requiring constitutional questions to be raised at the earliest possible stage in the litigation."17 Tested by these standards, it simply is not enough to say merely that objections tendered to the District Court may in some sense have "reflect[ed]"¹⁸ some of the concerns implicated by the constitutional provision relied on.¹⁹

Byers urges us to acknowledge Fifth and Sixth Amendment rights which have yet to be recognized by any federal court, and which, if validated, would impose substantial affirmative duties upon the Government. Of the three objections proffered by Byers to support the contention that he presented his current claims to the District Court, two may be dismissed out of hand. Neither Byers' objection to the Government's motion for commitment for the Springfield examination nor his motion for a new trial predicated on the alleged statutory violation even remotely revealed or suggested either of the constitutional theses he now advances.

The third objection upon which Byers relies--that particular testimony of Dr. Kunev was inadmissible because it lacked probative value and was prejudicial--merits closer scrutiny, but ultimately proves to be no more beneficial to his cause. At no time did Byers invoke either the Fifth or Sixth Amendment eo nomine, or even hint that he intended an objection of constitutional dimensions. His counsel did observe briefly that cross-examination of Dr. Kunev would be hampered by the latter's failure either to preserve his interview notes or to refer in official reports to the challenged topic of the testimony. This was hardly sufficient, however, to communicate the nature and scope of Byers' constitutional claims to the court, or even to intimate that he thought the testimony would derogate his privilege against self-incrimination or trammel his right to assistance of counsel.²⁰ Indeed, if Byers had in mind a Fifth or Sixth Amendment foundation for the objection, he could appropriately and much more beneficially have made it before Dr. Kunev began to testify.

Given these circumstances, I cannot believe that Byers presented the objection with sufficient clarity and particularity to apprise trial participants of the specific constitutional components now claimed for it. From all appearances, the objection arose simply pursuant to Federal Evidence Rule 403, which authorizes trial judges to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice."²¹ We should not, by indulgence in vastly overgenerous hindsight, construe it to germinate and preserve Byers' current Fifth and Sixth Amendment positions.

II. APPLICATION OF FEDERAL CRIMINAL RULE 52(b): THE PLAIN

ERROR DOCTRINE

Since Byers did not advance his constitutional claims in the District Court, we are not at liberty to consider them on appeal unless the record discloses "plain error" within the meaning of Federal Criminal Rule 52(b). I am not persuaded that either of the constitutional violations asserted by Byers--if indeed they were that--rises to the level of "plain" error. Consequently, I would not entertain either the Fifth or the Sixth Amendment arguments.

The Supreme Court and numerous other federal courts have stated time and again that the plain-error doctrine is to be used sparingly,²² and only in exceptional circumstances.²³ Advertently to this caveat, as well as to the commonsense meaning of the words "plain error," these courts have recognized that obviousness of an alleged impropriety figures crucially in any plain-error determination.²⁴ The instant case, I submit, hardly qualifies for special treatment on this score. Whatever constitutional transgression the District Court may have tolerated during the trial proceedings, it cannot fairly be characterized as obvious.

That the court today encounters difficulty with both the Fifth and Sixth Amendment question is itself proof that any constitutional infirmity in the Springfield examination procedures or their testimonial products is far from clear. Additionally, no federal court has yet accepted the identical or any substantially similar Fifth Amendment argument,²⁵ and every such court reaching the Sixth Amendment issue Byers tenders has resolved it adversely to his position²⁶--facts further confirming that the validity of his claims is not obvious.²⁷ We ourselves have held that purported constitutional error is not made "plain," within the meaning of Rule 52(b), simply by the circumstance that the claim is novel.²⁸ If asserted error is not "plain" merely because no federal court has yet addressed the issue, surely it cannot be "plain" when federal courts repeatedly and uniformly have resolved the issue unfavorably to the claimant.

Complementary to lack of obviousness, an even more fundamental principle impels me to the conclusion that Byers' belatedly-posed constitutional issues should not be examined under the plain-error doctrine. As I had recent occasion to observe,²⁹ it is a well-established principle of federal jurisprudence that courts will not decide a question raised initially on appeal absent a record adequate enough to ensure its sound resolution.³⁰ The concerns prompting this salutary rule are apparent. Our duty to the parties, as well as allegience to the adjudicative process, demands that we strive continually for sensitive, informed and accurate decisionmaking, especially with respect to complex constitutional issues.³¹ Beyond that, it would unjustifiably penalize the Government to resolve any matter adversely to its interests when the accused's procedural default has robbed it of the potential opportunity to build a record favorable to its cause. An assessment of Byers' constitutional contentions in light of these concerns makes it further evident that the rule precluding consideration of an untimely issue on a materially flawed record applies squarely to the case at bar.

Record deficiencies militate with special force against attempted resolution of the Fifth Amendment controversy here. Byers' self-incrimination claim calls for judicial assessment of the totality of a diverse group of facts and circumstances, and, as even Byers concedes,³² the record before us has not been developed sufficiently in this regard. Resolution of Byers' Sixth Amendment claim requires an evaluation of sparse and contradictory empirical data, necessitates a delicate accommodation of competing values in the context of a wide range of potentially suitable procedural protections,³³ and, if favorable to Byers, might possibly involve the erection of a formidable structure of interrelated rights and duties.

Despite these aspects of the claims, however, Byers' failure to assert them seasonably before the District Court has imbued the record with no more than a sketchy description of the circumstances surrounding his Springfield examination,³⁴ and has left it entirely devoid of any adversary presentation--testimony, analysis or discussion--on the extant empirical information and professional literature, an informed appraisal of which is so essential to an intelligent disposition. It would seem a gross disregard of the gravity and delicacy with which constitutional matters are to be treated³⁵ to proceed to the merits of Byers' claim in the face of such deficiencies. And it would seem highly ironic to levy a substantial constitutional duty upon the Government and to justify the imposition by an ad hoc evaluation of empirical information badly in need of testing and analysis in the crucible of the adversary process.

More than a decade ago, this court viewed a strikingly similar constitutional challenge presented by a mandamus petition and declined to consider the merits of the claim on so barren a record, reasoning that

the complexity of the issues involved and the uncertain factual matrix within which they must be resolved persuades us that a solution should not be attempted in the context of this petition for a writ of mandamus.³⁶

The court has also made clear that this rationale extends fullforce to cases in which the record deficiency was the result of the claimant's failure reasonably to raise the issue:

[A] party asserting the unconstitutionality of governmental action has the burden of demonstrating it. That burden extends to production of the facts essential to a determination respecting the constitutional claim. [Appellant's] trial counsel made no effort in that direction. We do not in these circumstances pursue the abstract right-to-counsel question which [appellant] urges.³⁷

I do not believe that the case sub judice presents us with a record materially better than that then confronting the court, and accordingly would likewise decline to address Byers' constitutional contentions.³⁸

Furthermore, I cannot be certain that the Government would not have been able to show that it did not tread upon any constitutionally-protected interests of Byers if it had been afforded a meaningful opportunity to present its side of the issues during the trial proceedings. As but one example, Byers himself admits that whether he voluntarily waived his right to counsel is a matter that cannot be resolved on the record before us.³⁹ Beyond that, the present state of the record forecloses any accurate forecast on any of a number of justifications presumably open to the Government. It thus is premature and unsound, as well as unfair to the Government, to venture opinions on whether Byers' constitutional rights, even as he perceives them, have been invaded. Put another way, we cannot possibly know that error, much less plain error, has occurred here.⁴⁰

The general rule counseling against appellate resolution of issues unraised at the trial level finds still another foundation in this case. Were we to accept Byers' arguments and hold that the Springfield examination was fatally flawed, the appropriate remedy would be disallowance of any testimony by Springfield psychiatrists thereon. That outcome, however, would deprive the Government of any real opportunity to oppose Byers' insanity plea, for it is highly unlikely that a psychiatric examination conducted now would shed light on Byers' mental state more than seven years ago, when the charged offenses were committed. We would then, in effect, let Byers' procedural lapses subvert the Government's capacity to rebut the insanity defense by ensuring its inability to use an efficacious expert witness when proper objections might well have allowed it to substitute adequately for the challenged testimony. In my view, Byers should not be permitted to reap such rewards from his own neglect.⁴¹ Courts have refused to reach untimely issues on inadequate records even without inquiry as to whether the Government on remand would have ample opportunity to adduce facts favorable to its position.⁴² Surely, then, we should decline to consider Byers' belatedly-raised constitutional claims when any decision against the Government would leave it without important testimony it might have been able to procure absent Byers' procedural defaults.

The court relies upon an aspect of the Fifth Circuit's decision in Smith v. Estelle⁴³ in reaching the conclusion that Byers' Fifth Amendment argument should be entertained despite his failure to advance it before the District Court.⁴⁴ In Smith, the prosecution had introduced psychiatric testimony at the sentencing stage of a trial after representing to the court and opposing counsel that the testimony would not be used.⁴⁵ The court held that the state, by surprising defense counsel in this way, had frustrated effective cross-examination of the witness and significantly impaired the "interest in reliability" of the judicial process.⁴⁶ The court then allowed the accused to litigate Fifth and Sixth Amendment claims, noting that defense counsel, as a result of the "surprise," could "scarcely be faulted for failing to enumerate all of the many constitutional rights that the state violated" when it unexpectedly presented the testimony.⁴⁷

In the case at bar, there was neither such a surprise nor such detrimental consequences. Byers knew well in advance that Dr. Kunev would testify and, in fact, registered several nonconstitutional objections to the testimony during the trial proceedings.⁴⁸ A litigant does not gain entitlement to the Fifth Amendment merely because his adversary's witness blurts out something unanticipated. And although the challenge here is to testimonial reproduction of a statement allegedly made by Byers during Dr. Kunev's examination, an important element of Estelle is lacking. There the defendant was left without any opportunity to "prepare an effective response to [the] testimony or to impeach it in any significant way."⁴⁹ Here, on the other hand, there was much that could have been utilized in Byers' behalf.⁵⁰

In sum, the absence of obvious error in the trial proceedings, the seriously deficient record, and the unfair and prejudicial effect on the Government of any decision adverse to it convinces me that this case does not threaten the "miscarriage of justice"⁵¹ necessary to support a determination of plain error under Rule 52(b).

III. THE SUPERVENING-DECISION DOCTRINE AND ESTELLE V. SMITH

Federal appellate courts often forgive a litigant's failure to raise an issue seasonably when at that time it would have been futile to do so, but a substantial change in or clarification of the law occurs in the litigant's favor after final judgment in the trial court.⁵² This dispensation has sometimes been justified by reference to the court's statutory authority to effect such disposition "as may be just under the circumstances."⁵³ On this basis, the court holds that the Supreme Court's decision in Estelle v. Smith⁵⁴ provided such an elucidation of Sixth Amendment principles as to excuse Byers' procedural default respecting the right-to-counsel claim.⁵⁵ That Estelle refined some facets of Sixth Amendment doctrine cannot be doubted; there the Supreme Court, for the first time, held a psychiatric examination to be a "critical stage" for Sixth Amendment purposes,⁵⁶ and indicated that the Sixth Amendment does not inexorably require the presence of counsel at "critical stages."⁵⁷ The importance of this clarification, it might be argued, is underscored by the fact that federal courts theretofore held uniformly that Byers' Sixth Amendment contention lacked merit, and this, as a strong indication of likely futility of an objection,⁵⁸ might have been at least partly responsible for Byers' procedural default. Despite these considerations, however, I am not persuaded that we could soundly resolve that contention on this appeal.

Like the inquiry as to whether the trial proceedings disclose "plain error," the ruling on whether to excuse a procedural lapse because of a supervening decision is entrusted largely to sound judicial discretion.⁵⁹ The similarities between these two determinations do not end here, for in each the objective guiding the exercise of discretion is achievement of a just disposition of the case.⁶⁰ It stands to reason, then, that the factors central to plain-error deliberations should also figure prominently in the decision on whether to regard Estelle as sufficient reason to overlook Byers' procedural neglect. Here, as already observed, the absence of obvious error, the defective record and the danger of prejudice to the Government militate strongly against consideration of the merits on any notion of plain error.⁶¹ Moreover, I am not persuaded that Estelle engendered a significant clarification of Sixth Amendment doctrine favorable to Byers, or that there was sufficient reason to believe an objection at trial would be futile. I cannot see that these factors are any the less dispositive with respect to the determination on whether, under the supervening-decision doctrine, an examination of the merits of Byers' claim is essential to a just determination.

Estelle v. Smith involved a defendant in a state capital prosecution who underwent a court-ordered psychiatric examination to determine whether he was competent to stand trial. A dispute arose at the penalty phase of the bifurcated proceeding when the examining psychiatrist, on the basis of the examination, gave testimony indicating that the defendant had a violent nature and posed a continuing threat to society. The Supreme Court held that admission of this testimony violated the defendant's Fifth Amendment privilege against self-incrimination because the state had not informed him that he had the right to remain silent during the examination and that any statement might be used against him at a sentencing proceeding.⁶² The Court further held that the state had also infringed the defendant's Sixth Amendment right to assistance of counsel when, by failing to tell him that the psychiatrist might testify at the sentencing phase, it deprived him of any meaningful opportunity to consult with his attorney before deciding whether to submit to the examination.⁶³

In its opinion, the Court made clear that a psychiatric examination is a "critical stage" in a criminal proceeding,⁶⁴ and that as such it might warrant Sixth Amendment protections, albeit other than presence of counsel.⁶⁵ Despite this subsidiary pronouncement, however, I regard Estelle, viewed in light of its primary holdings, as not a significant doctrinal clarification helpful to the position Byers espouses. In the