BLOG BULLETS:

• The same rule that allows a court to order an independent mental health examination of the defendant if he gives notice of intent to introduce mental health evidence provides that no “fruits” of the examination can be used against the defendant unless he actually ends up introducing the mental health evidence he gave notice of, and these fruits include not just actual evidence like the defendant’s statements or testimony by the expert, but also things like assistance in focusing the investigation, charging and plea bargaining decisions, and planning of trial strategy.
• The burden is on the government to show there’s been no such effect, and you can demand a “Kastigar hearing” at which the government has to show there’s no such taint if prosecutors or agents have been exposed to the examination.
• You can use the possibility of this sort of taint to argue that the government should be walled off from the results of the court-ordered examination and walled off from the expert who conducts the examination until the defense actually introduces its mental health evidence.

NOW THE BLOG:

The Cheever case I noted last week makes clear that prosecutors can use any mental health examination ordered by the court under Rule 12.2(c) to rebut mental health expert testimony offered by the defense. But equally clear is that the government can’t use the mental health examination if the defendant decides not to present its mental health evidence. Rule 12.2(c)(4) provides that neither any statement made by the defendant during the court-ordered examination, any testimony by an expert based on any of the statements made during the examination, or any “other fruits” of any statement made by the defendant during the court-ordered examination may be used against the defendant if he doesn’t introduce the mental health evidence. This follows from the Fifth Amendment case of Estelle v. Smith, 451 U.S. 454 (1981), which held that the fruits of a compelled competency examination can’t be used against a defendant who doesn’t open the door by presenting mental health evidence. See Fed. R. Crim. Pro. 12.2 advisory committee’s note (1983 amendment) (noting that subsection (c), as amended, “reflect[s] the Fifth Amendment considerations at play in this context” and citing Estelle). It is also consistent with the general rule on compelled statements established by the Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441 (1972), see id. at 461-62, and applied by both that Court and the courts of appeals to various forms of compelled statements, see, e.g., United States v. North, 910 F.2d 843 (D.C. Cir.), withdrawn and superseded in part, 920 F.2d 940 (D.C. Cir. 1990).

After reflecting on this in the same case of mine that I drew on for last week’s post, I realized that this creates far more protection than just preventing use of the expert, use of what the defendant said during the expert’s examination, or use of other evidence that the defendant’s statements led to. “Fruits” under Kastigar means more than just evidence offered in a trial. It may also include fruits in the form of “assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” United States v. Danielson, 325 F.3d 1054, 1072 (9th Cir. 2003) (quoting United States v. McDaniel, 482 F.2d 305, 311 (8th Cir. 1973) and United States v. Crowson, 828 F.2d 1427, 1430-31 (9th Cir. 1987)). The burden is on the government to show a lack of taint, moreover, and courts typically hold what are often labeled “Kastigarhearings” to inquire into the possibility of such taint. See, e.g., United States v. Dudden, 65 F.3d 1461, 1469 (9th Cir. 1995);Crowson, 828 F.2d at 1428-29.

This puts the prosecutor in a bit of a box if he or she isn’t careful. It also creates the potential for asking for several limits in the event the court does order an examination. First, you can argue that any report prepared by the court-appointed expert should be filed under seal with the court and not unsealed for review by the prosecutor – or the court (since the court’s decisions could also be tainted) – unless and until the defense actually puts on the mental health evidence it is considering putting on. If this isn’t done, there will have to be an extensiveKastigar-type hearing to inquire into whether and how the prosecutor or court may have been tainted by exposure to the report. This potential problem is expressly recognized in the advisory committee notes discussing a specific provision of Rule 12.2(c)(2) providing for this sort of protection in capital case sentencing proceedings. That provision creates precisely this sort of sealing protection for court-ordered mental health evaluations based on a defendant’s notice of intent to offer mental health evidence in the sentencing phase of a capital case and is justified in the advisory committee notes as follows:

Most courts that have addressed the issue have recognized that if the government obtains early access to the accused’s statements, it will be required to show that it has not made any derivative use of that evidence. Doing so can consume time and resources.

Fed. R. Crim. Pro. 12.2 advisory committee’s note (2002 amendment). While there’s not a similar specific rule for reports ordered in response to notice of intent to offer mental health evidence in other cases, remember that the advisory committee notes suggest that application of Rule 12.2(c) “may certainly be informed by other provisions, which address hearings on a defendant’s mental condition.” Fed. R. Crim. Pro. 12.2 advisory committee’s note (2002 amendment).

In a related vein, you can also argue that the prosecutor should be walled off from any contact with the expert who conducts the court-ordered examination. This is another cautionary measure that will prevent the need for a Kastigar-type hearing. If the prosecutor isn’t walled off, there will have to be the very sort of inquiry the advisory committee note that’s quoted above expressed concern about in the capital sentencing context. The court will have to consider and evaluate the possibility of all the different sorts of possible taint noted above, including not just the evidence offered at trial, but also the effect on investigation, decisions about what charges to file or add and what plea offers to make or not make, and the planning of cross-examination and other trial strategy. It’s a can of worms that can be avoided if the prosecutor is walled off from the expert.

Finally, you can argue there should be no court-ordered examination at all unless and until the government concedes – or the court finds – that the potential defense mental health evidence is in fact admissible. In non-insanity cases, there may be a dispute about this, and that dispute should be resolved before the defendant is forced to submit to a court-ordered examination. A mental health examination can be a highly intrusive process and there is no need for that intrusion if the defense evidence is going to be excluded. Allowing the government to have its examination and then exclude the defense evidence after the fact is like letting the government have its cake and eat it too. (To quote one of my mother’s proverbs.

I argued for each of these limits in my case, as reflected in the opposition to the government application which I’m attaching again here. And at least in part, the argument worked, as reflected in the order which is attached here. The court did appoint the expert the government wanted, but it further ordered “that [the expert] not disclose any results and reports of the . . . examination to any attorney for the government or defendant and to the Court absent further order of the Court.” And if the court hadn’t included this in its order, there would have been other, possibly even better arguments to make – about taint of all sorts of things, ranging from the evidence actually presented, to trial strategy decisions, to plea negotiations and sentencing arguments. That’s a can of worms the government itself might have wanted to keep closed.