Disclosure to the Government, During the Guilt Phase of a
   Trial, of the Results of a Court-Ordered Mental Examination
T h e F ifth A m e n d m e n t p riv ile g e ag ain st s e lf-in c rim in a tio n d o e s n o t p ro h ib it d is c lo su re to the g o v e rn ­
     m e n t, d u rin g th e g u ilt p h a se o f a trial, o f th e resu lts o f a c o u rt-o rd e re d m ental e x am in atio n .

                                                                                                                 September 21, 1998


                   M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l
                                                        C r im in a l D iv is io n


  This memorandum responds to the Criminal Division’s request for our opinion
whether certain limitations on the disclosure of results of a court-ordered mental
examination in a capital case are required to protect a defendant’s Fifth Amend­
ment privilege against compelled self-incrimination. In particular, the limitations
would prevent disclosure, during the guilt phase of a capital trial, of the results
of a mental examination ordered upon a defendant’s notice of intent to introduce
evidence of a mental condition bearing upon sentencing. As discussed below, prin­
cipally because the Fifth Amendment’s privilege against self-incrimination pro­
tects against the prosecution’s direct or indirect use of compelled statements in
a criminal case, not against the prosecution’s possession of or access to such state­
ments, we do not believe that a rule lacking such limitations would be facially
defective. Nevertheless, in any given case, adherence to such limitations may aid
the prosecution in establishing that, during the guilt phase of a capital trial, it
made no use of statements, or the fruits of statements, obtained through a court-
ordered mental examination of the defendant.

                                                          I. Background

  This memorandum supplements our earlier advice regarding proposed amend­
ments to Rule 12.2 of the Federal Rules of Criminal Procedure. See Memorandum
for John C. Keeney, Acting Assistant Attorney General, Criminal Division, from
Todd David Peterson, Deputy Assistant Attorney General, Office of Legal
Counsel, Proposed Revisions to Rule 12.2 (Apr. 20, 1998). The Advisory Com­
mittee on Criminal Rules has voted to approve in concept two amendments to
Rule 12.2. The first would clarify that Rule 12.2(c) empowers a district court
to order a mental examination of a defendant who gives notice under Rule 12.2(b)
of an intent to offer expert testimony relating to a mental condition bearing on
the issue of guilt. The second would amend Rules 12.2(b) and 12.2(c) to require
reasonable notice to the government when the defendant in a capital case intends
to offer expert testimony on a mental condition relevant to the issue of capital
punishment and to allow the court to require the defendant to submit to a mental
examination when such notice is given. The Department of Justice offered amend-

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 Disclosure to the Government, During the Guilt Phase o f a Trial, o f the Results o f a Court-Ordered
                                       Mental Examination

atory language for consideration at the Advisory Committee’s April 27-28, 1998,
meeting.1 See Letter for David A. Schlueter, Professor of Law, St. Mary’-s Univer­
sity School of Law, from Mary Frances Harkenrider, Counsel to the Assistant
Attorney General, Criminal Division and Roger A. Pauley, Director of Legislation,
Office of Policy and Legislation, Criminal Division at 1-2 (Dec. 8, 1997)
( “ Criminal Division Letter” ).
   In our previous advice concerning the proposed amendments, we concluded (1)
that the prosecution’s use of evidence from a compelled psychiatric examination
to rebut a defendant’s testimony on mental status would not infringe a defendant’s
Fifth Amendment privilege against self-incrimination; and (2) that a federal court
can constitutionally compel such an examination upon the defendant’s filing of
a notice to present evidence bearing upon guilt or capital sentencing, so long as
the results of the examination are used solely in rebuttal and properly limited
to the issue raised by the defense. We observed that current Rule 12.2(c) expressly
meets this requirement: It provides that no statement made by the defendant during
a court-compelled examination, no expert testimony based on the statement, and
no other fruits of the statement shall be admitted in evidence against the defendant
“ except on an issue respecting mental condition on which the defendant has intro­
duced testimony.” We noted that proposed Rule 12.2(c) included an additional
safeguard for cases in which a capital defendant provides notice of intent to intro­
duce expert testimony concerning a mental condition bearing upon sentencing:
Amended Rule 12.2(c) generally would prohibit the disclosure of the results of
a court-compelled examination to any attorney for the government “ unless and
until the defendant is found guilty of one or more capital crimes and confirms

  1The D epartment's proposed rule is set forth below (with new matter italicized):
    Rule 12.2

          (b) E x p ert Testim ony o f D efendant’s M ental C ondition. If a defendant intends to introduce expert
    testimony relating to a mental disease or defect or any other mental condition bearing upon (I) ihe issue
    of guilt o r (2) whether in a capital case, a sentence o f capital p u n ish m en t sh o u ld be im p o sed , the defendant
    shall, within the time provided for the filing of pretrial motions or at such later time as the court may
    dircct, notify the attorney for the government in writing of such intention and file a copy of such notice
    with the clerk The court may for cause shown allow late filing of the notice or grant additional time
    to the parties to prepare for trial or make such other order as may be appropriate
          (c) M ental Exam ination of D efendant. In an appropriate case p u rsu a n t to sta tu to ry a u th o rity or
    in w hich n o tice bv ihe defendant has been given u n d er subdivision (a) o r (b), the court may. upon motion
    of the attorney for the government, order the defendant to submit to an examination The exa m ination
    sh all be con d u cted pursuant to 18 U S .C 4241 et seq or, in a ca se involving notice under subdivision
    (b). as o therw ise ordered by the court The results o f an exam ination co n d u cted solely pursu a n t to notice
    u n d er subdivision (b)(2) sh a ll not be d isclo se d to a n y attorney f o r th e governm ent unless a n d un til the
    d efendant is fo u n d g u ilty o f one o r m ore capital crim es a n d co n firm s his o r h e r in ten t to o ffer m en ta l
    condition evidence in m itigation at the sentencing phase, e.xeept that su ch results m ay b e earlier d isclo sed
    to an attorney f o r the governm ent i f the court determ ines (! ) such atto rn ey is not, a n d w ill n ot com m u n ica te
    the results to. an attorney responsible j o r conducting the prosecutio n on the issue o f guilt, o r (2) such
    d isclosure w ill not te n d to incrim inate the defendant on the issue o f gu ilt No statement made by the
    defendant in the course o f any examination provided for by this rule, whether the examination be with
    or without the consent of the defendant, no testimony by the expert based upon such statement, and no
    other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding
    except on an issue respecting mental condition on which the defendant has introduced testimony


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                    Opinions o f the Office o f Legal Counsel in Volume 22


his or her intent to offer mental condition evidence in mitigation at the sentencing
phase.” Criminal Division Letter at 2. Disclosure before the defendant is found
guilty would be permitted, however, if the district court determines (1) that the
attorney for the government “ is not, and will not communicate the results to,
an attorney responsible for conducting the prosecution on the issue of guilt” or
(2) that disclosure “ will not tend to incriminate the defendant on the issue of
guilt.” 

memorandum expressed no view on whether these disclo­
sure limitations are constitutionally required. Following the April 27-28 meeting
of the Advisory Committee, you asked us to consider whether these disclosure
limitations are necessary to protect a defendant’s Fifth Amendment privilege
against self-incrimination.

                                     II. Discussion

   As noted, current Rule 12.2(c) provides that no statement made by the defendant
during a court-compelled examination, no expert testimony based on the statement,
and no other fruits of the statement shall be admitted in evidence against the
defendant “ except on an issue respecting mental condition on which the defendant
has introduced testimony.” There appears to be no proposal to eliminate this
provision. Accordingly, for all cases in which the court is authorized to order
an examination of the defendant—including, under the proposed amendment, cases
involving a capital defendant who intends to introduce mental health evidence
solely at sentencing—proposed Rule 12.2(c) would prohibit the use at trial of
a defendant’s statement or its fruits, except in rebuttal to the defendant’s presen­
tation of evidence. The question, then, is whether the defendant’s Fifth Amend­
ment privilege against self-incrimination protects against more than the prosecu­
tion’s use at trial of the defendant’s statement or its fruits— that is, whether the
defendant’s Fifth Amendment privilege protects against the prosecution’s mere
possession of or access to the results of a court-ordered mental examination.

                                             A.

   For purposes of this section, we assume that any waiver of a defendant’s privi­
lege against self-incrimination occurs when the defendant in fact introduces mental
status testimony, rather than when the defendant gives notice of an intent to do
so. On this theory, the statements the defendant makes at a pretrial court-ordered
examination are in some sense “ compelled.” Kastigar v. United States, 

(1972), the leading Supreme Court case on the constitutionality of the federal
witness immunity statute, 18 U.S.C. §6002 (1994), offers some guidance on the
extent to which the prosecution may make use of compelled statements. Under
§ 6002, a court may compel a witness to testify over a claim of the privilege
against self-incrimination, “ but no testimony or other information compelled

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  Disclosure to the Government, During the Guilt Phase o f a Trial, o f the Results o f a Court-Ordered
                                        Mental Examination

under the order (or any information directly or indirectly derived from such testi­
mony or other information) may be used against the witness in any criminal case,
except a prosecution for perjury, giving a false statement, or otherwise failing
to comply with the order.” 

In Kastigar, the petitioners, individuals
found in contempt of court for failing to testify before a grand jury after the
district court ordered them to testify under a grant of immunity pursuant to § 6002,
claimed that their refusal to comply with the district court’s order was justified
by the fact that the statute’s grant of immunity was not coextensive with the Fifth
Amendment privilege against self-incrimination. The Court rejected this claim:

             The statute’s explicit proscription of the use in any criminal case
          of “ testimony or other information compelled under the order (or
          any information directly or indirectly derived from such testimony
          or other information)” is consonant with Fifth Amendment stand­
          ards. We hold that such immunity from use and derivative use is
          coextensive with the scope of the privilege against self-incrimina-
          tion, and therefore is sufficient to compel testimony over a claim
          of the privilege. . . . [The] sole concern [of the privilege] is to
          afford protection against being “ forced to give testimony leading
          to the infliction of penalties affixed to . . . criminal acts.” Immu­
          nity from the use of compelled testimony, as well as evidence
          derived directly and indirectly therefrom, affords this protection.

(second ellipsis in original) (footnote omitted). The
language of Kastigar thus suggests that an infringement of the Fifth Amendment
privilege against self-incrimination occurs not by virtue of the prosecution’s mere
possession of or access to compelled testimony, but by the “ use and derivative
use” of such compelled testimony. Indeed, in dictum in United States v. Verdugo-
Urquidez, 

(1990), the Court relied on this passage in Kastigar to
distinguish between the operation of the Fifth Amendment’s privilege against self­
incrimination and the Fourth Amendment’s prohibition on unreasonable searches
and seizures: “ Although conduct by law enforcement officials prior to trial may
ultimately impair [the defendant’s privilege against self-incrimination], a constitu­
tional violation occurs only at trial. The Fourth Amendment functions differently.
It prohibits unreasonable searches and seizures whether or not the evidence is
sought to be used in a criminal trial, and a violation of the Amendment is fully
accomplished at the time of an unreasonable governmental 

(internal quotation marks and citation omitted).2

  2 In the recent case of United States v Balsys, the Court assumed for purposes of its analysis that the Fifth Amend­
ment protects “ against the Government’s very intrusion through involuntary interrogation ” 524 U S 666, 691
(1998). The Court rejected a defendant’s claim that such protection is unconditional and therefore prevents the govern­
ment from interrogating one who fears prosecution abroad In connection with us assumption, however, the Court
                                                                                                             Continued


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                           Opinions o f the Office o f Legal Counsel in Volume 22


   The Fifth Circuit recently recognized this distinction between a prosecutor’s
permissible access to compelled information and the unconstitutional use of such
information against a defendant at trial. In United States v. Hall, 

(5th Cir. 1998), cert, denied, 

(1999), the district court required
a capital defendant to submit to a psychiatric examination by the government if
the defendant wished to present his own psychiatric evidence in mitigation of
punishment. Hall claimed on appeal that the district court should not have required
him to submit to the government’s examination absent an order denying the
prosecution access to the results of the examination by requiring that those results
remain under seal until the trial’s penalty phase, noting that such a safeguard
had been imposed in previous cases. 

(citing United States v. Beckford,

, 761 (E.D. Va. 1997); United States v. Haworth, 

, 1408-09 (D.N.M. 1996); United States v. Vest, 

, 654 (W.D.
Mo. 1995)). The Fifth Circuit rejected the claim. While the court acknowledged
that requiring that the results of a mental examination remain under seal until
the penalty phase served “ interests of judicial economy” by making it unneces­
sary for the court to determine whether the prosecution had made use of that
material, it nonetheless concluded that “ such a rule is not constitutionally man­
dated.” 

based this conclusion in part on the fact that the current
version of Rule 12.2— which protects a defendant who is compelled to undergo
a psychiatric examination by prohibiting the government from introducing the
results of the examination as evidence before the defendant actually places his
sanity in issue but does not forbid the prosecutor to obtain access to the results
before that time— has “ consistently been held to comport with the Fifth Amend­
ment.” 

(citing United States v. Lewis, 

, 35 n.9 (4th Cir.
 1995); United States v. Stockwell, 

, 127 (2d Cir. 1984)).
   Similarly, several courts of appeals have considered, in the context of civil suits
against state or local officials, whether use of a compelled statement in a criminal
proceeding is a necessary element of a claimed infringement of the privilege
against self-incrimination. The weight of authority suggests that, to claim a viola­
tion of the privilege, a plaintiff must allege the use of a statement in a criminal
proceeding. See Riley v. Dorton, 

, 1164 (4th Cir.) (“ [F]ollowing
the plain text of the Amendment that ‘[n]o person . . . shall be compelled in
any criminal case to be a witness against himself,’ most courts refuse to find
a Fifth Amendment violation even where statements were made, but were not
actually used in a criminal proceeding” (alterations in original)), cert, denied,

(1997); Weaver v. Brenner, 

, 535-36. (2d Cir. 1994)
(rejecting the view that act of compelling a statement from the defendant is alone
sufficient to state a Fifth Amendment violation; adopting view that “ use of the

acknowledged and did not question Verdugo-Urquidez' s statement that a violation of the pnvilege against self-
incnm ination occurs at trial, not when the testimony is taken. Id at 692 n 12 Accordingly, we do not take the
Court’s discussion in Balsys to cast doubt upon K asiigar's focus on use and derivative use of compelled testimony
in a criminal case or upon the C ourt’s reliance upon this focus in Verdugo-Urquidez.


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 Disclosure to the Government, During the Guilt Phase o f a Trial, o f the Results o f a Court-Ordered
                                       Mental Examination

compelled statements against the maker in a criminal proceeding” and finding
that statements were improperly used before the grand jury (internal quotation
marks and citation omitted)); Mahoney v. Kesery, 

, 1061 (7th Cir.
 1992) ( “ Fifth Amendment does not forbid the forcible extraction of information
but only the use of information so extracted as evidence in a criminal case” (cita­
tion omitted)); Davis v. City of Charleston, 

, 322 (8th Cir. 1987)
(finding no Fifth Amendment violation where suspect’s statements were not used
against her during trial). The Ninth Circuit alone has held otherwise. See Cooper
v. Dupnik, 

(9th Cir.) (en banc) (holding that § 1983 claim for
infringement of privilege against self-incrimination was stated by allegations that
the plaintiffs statements were compelled, although the statements were never
used), cert, denied, 

(1992). See generally Guiffre v. Bissell, 

, 1256 (3d Cir. 1994) (in qualified immunity context, concluding that plain­
tiffs Fifth Amendment claim against county officers who interrogated him did
not rely on clearly established law; noting that the Ninth Circuit “ broke new
ground” in Cooper and that “ [t]he dissenting judges in Cooper presented a
persuasive argument that the Fifth Amendment privilege against self-incrimination
is not violated until evidence is admitted in a criminal case” ); Arnold H. Loewy,
Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally
Obtained Evidence from Unconstitutionally Used Evidence, 

. Rev. 907,
921 (1989) (arguing that “ unlike fourth amendment rights, fifth amendment rights
are not violated unless and until the statement is used against the person making
it” ).
   If a violation of a defendant’s Fifth Amendment privilege against self-incrimina-
tion occurs through the use in a criminal case of the defendant’s compelled state­
ments or the fruits of such statements, it follows that a limitation on the use of
statements obtained through a court-ordered mental examination of the defendant,
or the fruits of such statements, is sufficient to protect the Fifth Amendment
interests of a defendant who intends to raise a mental status defense. Put another
way, even if statements made at a court-ordered mental examination following
a notice of intent to introduce mental status evidence are properly viewed as
“ compelled” statements, it is the prosecution’s use of such statements or their
fruits at a criminal proceeding, not the fact that such statements were acquired
or the prosecution’s mere possession of them, that triggers any infringement of
the defendant’s Fifth Amendment privilege against self-incrimination.
   We note that there is presently some tension among the circuits on a related
issue that arises in connection with § 6002: whether the statute and the Fifth
Amendment’s privilege against self-incrimination prohibit so-called “ nonevi-
dentiary” uses of compelled testimony. Courts’ treatment of this question may
reflect how expansively they define the category of nonevidentiary uses. At least
four courts of appeals have concluded that the Fifth Amendment privilege against
self-incrimination does not prohibit nonevidentiary uses of compelled testimony,

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                              Opinions of the Office o f Legal Counsel tn Volume 22


where nonevidentiary use is described essentially as use by the prosecution in
shaping its general trial strategy.3 Other circuits, discussing an arguably broader
category of possible nonevidentiary uses, have held that the Fifth Amendment
bars such uses.4
   W e do not believe that cases concerning nonevidentiary uses of immunized testi­
mony call into question the conclusion that the prosecution’s possession of or
access to statements obtained through a mental health examination ordered pursu­
ant to Rule 12.2 is permissible under the Fifth Amendment. No court has held
that the mere knowledge by the prosecution o f compelled statements violates the
Fifth Amendment. Any disagreement within the case law on what constitutes an
impermissible “ use” of a compelled statement does not bear upon the constitu­
tional question whether a prosecutor may gain access to the results of a court-
ordered psychiatric examination before the defendant seeks to place his mental
condition in issue at trial. Rather, the conflicting authority bears upon whether
a restriction on the prosecution’s access should be adopted as a matter of policy.
In those jurisdictions in which the tangential, nontestimonial “ use” of compelled
statements is deemed to violate the Fifth Amendment, the fact that a prosecutor
has not had access to the results o f a court-ordered examination will plainly make
it easier to prove that the results of the examination have not been put to any
improper use. See 

. In contrast, as a practical matter, a pros­
ecutor who has had such access may be unable to prove that no improper use
occurred.

    3 S e e U nited States v Serra n o , 870 F2d 1, 17-18 (1st Cir 1989) (rejecting the view that Fifth Amendment is
violated “ merely because the immunized testimony might have tangentially influenced the prosecutor’s thought proc­
esses in preparing the indictment and preparing for trial” (internal quotation marks omitted)). U nited States v
M a ria ni, 851 F 2d 595, 601 (2d Cir. 1988) (tangential influence o f immunized testimony on trial preparation does
not constitute an impermissible use, “ In view o f the government’s convincing proof that the evidence upon which
it based its prosecution o f M anani came from legitimate independent sources, we cannot see how the government
prosecutors’ knowledge o f M anani’s immunized testimony could be considered an impermissible use of that testi­
mony ” ), ce rt d e n ie d , 490 U.S 1011 (1989), U n ite d States v V elasco , 953 F 2 d 1467, 1474 (7th Cir 1992) (assuming
that prosecution used defendant’s proffer of testimony, made pursuant to an agreement under which government
could not use the proffer against the defendant, “ to shape [its] trial strategy,” but concluding that K a stigar does
not prohibit such use “ [MJere tangential influence that privileged information may have on the prosecutor’s thought
process in preparing for trial is not an impermissible ‘use’ of that information ’’), U nited S ta tes v Byrd, 765 F 2d
1524, 1531 (1 1th C ir 1985) (examining whether “ advertent[] or inadvertent[J                 benefit” that prosecutor would
derive “ by virtue o f consulting with investigative agents              or others who have been exposed to the immunized
testimony dunng the course o f the . . investigation” would constitute an improper use under K astigar, concluding
that “ a violation o f the pnvilege against self-incnmination would not occur in any event unless such ‘use’ of the
immunized testimony resulted in the introduction o f evidence not obtained wholly from independent sources” ); see
a lso U n ite d S ta te s v. C ro w so n , 

, 1431-32 (9th Cir. 1987) (declining to decide whether nonevidentiary
use com es within the prohibition o f §6002, but suggesting that, so long as government proves a pnor, independent
source for its evidence, any nonevidentiary use will be harmless), ce rt denied, 488 U S 831 (1988)
    4 S e e U nited S ta tes v M cD a n iel, 482 F 2d 305, 311 (8th Cir 1973) (reasoning that prosecutor’s exposure to
immunized testimony could assist the prosecutor in “ focusing the investigation, deciding to initiate prosecution,
refusing to plea-bargain, interpreting evidence, planning cross-examination, and otherwise generally planning tnal
strategy” ; finding such uses impermissible). U n ite d States v Sem kiw , 712 F 2 d 891, 894 (3d Cir 1983) (following
M cD aniel)', see a lso U nited States v North, 910 F 2 d 843, 856 (D C . Cir.) (discussing tension among circuits on
whether nonevidentiary uses o f immunized testimony are permissible, assuming without deciding that such uses
are imperm issible), m o d ifie d in p a r t, 920 F 2d 940 (D C. C ir 1990), cert, denied, 500 U S 941 (1991)


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 Disclosure to the Government, During the Guilt Phase o f a Trial, o f the Results o f a Court-Ordered
                                       Mental Examination

   In sum, because the Fifth Amendment privilege against self-incrimination pro­
tects against the use in a criminal case of a defendant’s compelled statements
or the fruits of such statements, not against the prosecution’s mere possession
of or access to such statements, a limitation on the use of statements obtained
through a court-ordered mental examination of the defendant, or the fruits of such
statements, is sufficient to protect the Fifth Amendment interests of a defendant
who intends to introduce testimony on mental status. A rule lacking safeguards
restricting the prosecution’s access to the results of a court-ordered mental exam­
ination would not appear to be facially invalid under the Fifth Amendment.

                                                  B.

   The conclusion that a rule lacking safeguards restricting the prosecution’s access
to the results of a court-ordered mental examination would not be facially defec­
tive under the Fifth Amendment does not necessarily end the inquiry. In any given
case, adherence to safeguards such as those proposed in Rule 12.2(c) may aid
the prosecution in establishing that, during the guilt phase of a capital trial, it
made no use of statements, or the fruits of statements, obtained through a court-
ordered mental examination of the defendant in connection with a notice of intent
to introduce mental status testimony at sentencing. The importance of such safe­
guards depends largely on what kind of burden a court would place upon the
prosecution in connection with a defendant’s claim that the prosecution directly
or indirectly used statements to which it was exposed by virtue of the sentencing-
related mental examination.
   The Fifth Circuit’s analysis in Hall provides some guidance on this question.
In Hall, the defendant claimed that an order sealing the results of the court-ordered
mental examination was required to protect his Fifth Amendment privilege against
self-incrimination. Otherwise, the defendant argued, “ he could have no guarantee
that the government would not utilize the results of the examination or the fruits
thereof as evidence in the guilt phase of his 

. In rejecting
this claim, the Court of Appeals concluded that a defendant contending that there
had been improper use of the fruits of a mental examination “ ‘must go forward
with specific evidence demonstrating taint,’ upon which the government ‘has the
ultimate burden of persuasion to show that its evidence is untainted.’ ” 

i>. United States, 

, 183 (1969)). This evidentiary
framework, the court concluded, “ provides all of the protection against the
introduction of the fruits of the government psychiatric examination prior to Hall’s
introduction of psychiatric evidence that the Constitution requires.” 

the requirement that the defendant provide “ specific evidence dem­
onstrating taint” before the government is put to the burden of establishing that
its evidence is untainted would distinguish cases involving prosecution access to
a court-ordered mental examination from cases involving prosecution access to

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                     Opinions o f the Office o f Legal Counsel m Volume 22


immunized testimony. Under Kastigar, a defendant “ need only show that he has
testified under a grant of immunity [to matters related to the charges in the case]
to shift to the government the heavy burden of proving that all of the evidence
it proposes to use was derived from legitimate independent 

; see 

( “ A person accorded [use and derivative-use] immunity
. . . and subsequently prosecuted, is not dependent for the preservation of his
rights upon the integrity and good faith of the prosecuting authorities. . . . ‘[T]he
[prosecuting authorities] have the burden of showing that their evidence is not
tainted by establishing, that they had an independent, legitimate source for the
disputed evidence.’ This burden of proof . . . is not limited to a negation of taint;
rather, it imposes on the prosecution the affirmative duty to prove that the evi­
dence it proposes to use is derived from a legitimate source wholly independent
of the compelled testimony.” ) (citations omitted). To the extent that Kastigar
requires the government to bear the “ heavy burden” of establishing the sources
of its evidence upon a relatively low threshold showing by the defendant, a policy
preventing a prosecutor handling a particular criminal case from obtaining access
to previous immunized testimony might be desirable because it would help the
government in making the required showing. If a defendant who undergoes a
court-ordered mental examination must make a higher threshold showing before
the government is required to demonstrate an independent source for its evidence,
a policy insulating a prosecutor from the results of the examination may take
on less importance.
   H all appears to be the sole case directly addressing the proper evidentiary
 framework for a capital defendant’s claim that the prosecution has improperly
 used the fruits of a court-ordered mental examination during the guilt phase of
 the trial. A handful of district courts have in capital cases imposed safeguards
 to ensure that the prosecution does not acquire the results of a mental health exam­
 ination prior to the ju ry ’s verdict in the guilt phase, although it is unclear whether
 those safeguards were imposed for constitutional or prudential reasons. See Beck-

(requiring the submission of results of examination
 under seal; “ The results of any examination by the Government experts and the
 defense experts shall be released to the Government only in the event that the
jury reaches a verdict of guilty on a capital charge as to that defendant, and only
 after that defendant confirms his intent to offer mental health or mental condition
 evidence in mitigation.” ) (footnote omitted); 

 (ordering that results of independent examination be filed under seal and released
 only after jury reaches guilty verdict); 

(ordering that
 the results of mental health examination be released to the government “ at the
 Court’s discretion, and only in the event that the jury reaches a verdict of guilty
 as to that defendant” ). One of these courts justified its order in part on the fact
 that “ [m]aking the report of the examination available to the prosecution before
 [the] conclusion of the guilt phase would . . . lead to difficult problems respecting

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 Disclosure to the Government, During the Guilt Phase o f a Trial, o f the Results o f a Court-Ordered
                                       Mental Examination

the source of prosecution evidence and questioning in the guilt phase.” 

n.l 1.
   It is difficult to predict whether other courts will adopt the evidentiary frame­
work that the Fifth Circuit found appropriate in Hall. The resolution of the issue
may turn in part on the validity of an assumption made earlier in our discussion,
that testimony provided at a court-ordered examination is “ compelled” in the
same sense as testimony given under a grant of use and derivative-use immunity.
See supra p. 225. The Fifth Amendment problem would not arise if a court
decided that a defendant’s notice of an intent to introduce mental health evidence
is similar to a defendant’s notice that he will present an alibi defense: The
information that the defendant is required to provide in connection with the notice
is not properly viewed as “ compelled.” In Williams v. Florida, 

(1970), the Supreme Court upheld a Florida notice-of-alibi statute against a claim
that the statute infringed the Fifth Amendment’s privilege against self-incrimina-
tion. The Florida rule required the defendant to disclose to the prosecution the
witnesses he proposed to use to establish his alibi defense. The Court reasoned
that the information a defendant relying on a defense of alibi would ultimately
have to reveal to carry the defense could not be viewed as “ compelled” within
the meaning of the Fifth Amendment (as applied to the states through the Four­
teenth):

        The defendant in a criminal trial is frequently forced to testify him­
        self and to call other witnesses in an effort to reduce the risk of
        conviction. . . . That the defendant faces such a dilemma
        demanding a choice between complete silence and presenting a
        defense has never been thought an invasion of the privilege against
        compelled self-incrimination. The pressures generated by the
        State’s evidence may be severe, but they do not vitiate the defend­
        ant’s choice to present an alibi defense and witnesses to prove it,
        even though the attempted defense ends in [a] catastrophe for the
        defendant. However 'testimonial’ or ‘incriminating’ the alibi
        defense proves to be, it cannot be considered ‘compelled’ within
        the meaning of the Fifth and Fourteenth Amendments.

(emphasis added). The Court attached no significance to the fact
that the Florida notice-of-alibi rule required the defendant to disclose in advance
of trial the witnesses he intended to use to establish the alibi defense:

        At most, the rule only compelled petitioner to accelerate the timing
        of his disclosure, forcing him to divulge at an earlier date informa­
        tion that the petitioner from the beginning planned to divulge at
        trial. Nothing in the Fifth Amendment privilege entitles a defendant

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          as a matter of constitutional right to await the end of the State’s
          case before announcing the nature of his defense. . . . We decline
          to hold that the privilege against compulsory self-incrimination
          guarantees the defendant the right to surprise the State with an alibi
          defense.

The Williams Court’s conclusion that there is no constitutional
significance to requiring that a defendant disclose, prior to trial, the information
on which he will rely in his alibi defense suggests that the information the defend­
ant must provide in connection with his alibi notice is not “ compelled.” By
analogy, it could be argued that the testimony elicited at a court-ordered mental
examination is not “ compelled,” because that examination simply provides
information that the prosecution must necessarily acquire to have an opportunity
to rebut a defense on which the defendant intends to rely.5
   The analogy to notice-of-alibi cases is not perfect, however. What the defendant
is required to provide to the prosecution in connection with his notice of alibi
is the information that he will ultimately present at trial, if in fact he chooses
to go through with an alibi defense. What the defendant provides during a court-
ordered mental health examination may go beyond what he will ultimately present
at trial, if in fact he chooses to go through with a mental status defense. Put
another way, in a notice-of-alibi case, the information that the government
acquires is consistent with the scope of the waiver of the defendant’s self­
incrimination privilege that will occur at trial if the defendant pursues an alibi
theory. In a case involving notice o f a mental status defense, even if the defendant
introduces mental health evidence at trial and thereby waives his privilege against
self-incrimination as to that evidence, the government may have acquired, through
the examination, information that goes beyond the scope of the waiver. Moreover,
it is unclear whether a court might distinguish the notice-of-alibi context on the
ground that the government cannot be prejudiced at the guilt phase of a capital

   s The Supreme C ourt’s conclusion that the rule requiring a defendant to disclose alibi information does not
“ com pel” the defendant to be a witness against him self within the meaning of the Fifth and Fourteenth Amendments,
and the arguably analogous application in the context o f psychiatric examinations under Rule 12.2, is not inconsistent
with the ruling in E stelle v Sm ith, 451 U.S 454 (1981) In the latter case, the defendant was required to submit
to a psychiatric exam without having been w arned o f his M iranda nghts and without having placed his mental
state, in issue The Court held that the introduction at the penalty phase of the defendant’s statements dunng the
examination violated the Fifth and Fourteenth Amendments In so ruling, the Court stated that “ [a] criminal defend­
ant, who neither initiates a psychiatnc evaluation nor attempts to introduce any psychiatnc evidence, may not be
compelled to respond to a psychiatnst if his statements can be used against him at a capital sentencing proceeding.”
Id at 468 This holding is consistent with the decision in W illiam s because in the context of the alibi rule— and,
arguably, in the context o f a mental examination under Rule 12 2— the defendant is deemed to make a voluntary
disclosure in order to preserve his nght to present certain evidence in his defense In E stelle v Sm ith, by contrast,
the defendant did nothing to prompt the mental examination Indeed, the Supreme Court emphasized that the constitu­
tional violation arose because the trial court had ordered the examination sua sponte, and it quoted with apparent
approval the Fifth C ircuit’s acknowledgment o f “ the possibility that a defendant who wishes to use psychiatnc
evidence in his own behalf .        can be precluded from using it unless he is [also] willing to be examined by
a psychiatnst nominated by the state ” 451 U S at 466 n 10 (quoting Sm ith v Estelle, 602 F 2d 694, 705 (5th
Cir 1979)) (alteration in onginal)


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  Disclosure to ihe Government, During the Guilt Phase o f a Trial, o f the Results o f a Court’Ordered
                                        Mental Examination

case by the denial of access to information about the defendant’s mental condition
that would not be introduced, if at all, until the sentencing phase. Finally, we
note that the Fifth Circuit’s observation in Hall that the defendant “ did not waive
his Fifth Amendment privilege against self-incrimination merely by giving notice
of his intention to submit expert psychiatric testimony at the sentencing 

, itself may be in tension with a conclusion that the analogy to
the notice-of-alibi context is appropriate.
   Even if the prosecution in a case involving a mental status defense acquires
information going beyond the scope of the evidence that the defendant ultimately
introduces, it is not clear that the government should, without a defendant pro­
viding specific evidence of taint, bear the burden of demonstrating an independent
source for the evidence it seeks to present. In a Kastigar-typs case, the prosecu­
tion, not the defendant, has set in motion the chain of events leading to the com­
pelled testimony. The prosecution seeks an order granting immunity and compel­
ling testimony over a claim of privilege, and the prosecution therefore bears the
burden in a later criminal case of demonstrating that it has not improperly used
the testimony. When a defendant seeks to introduce mental status evidence, the
defendant, not the prosecution, has set in motion the chain of events leading to
the court-ordered examination.6 Even accepting the theory that testimony provided
at a court-ordered examination is properly viewed as “ compelled,” to require
the prosecution to establish an independent source for its evidence once a court-
compelled examination occurs could lead to an odd result: A defendant could
use a notice of an intent to introduce mental status evidence, coupled with a subse­
quent mental health examination, as a strategic device to put the prosecution to
the burden of proving an independent source for its evidence, even though the
defendant ultimately chooses not to introduce any mental status evidence at trial.
   As this discussion suggests, it is difficult to predict with certainty (1) whether
courts would treat statements made during a court-ordered mental examination
related to sentencing as “ compelled” statements; and (2) whether courts would
impose upon the prosecution in a capital case a burden to demonstrate that it
made no use of such statements during the guilt phase, without first requiring
the defendant to come forward with specific evidence of taint. Safeguards such
as those contained in proposed Rule 12.2 would, of course, aid the government

   6 The proposition that the defendant sets the process in motion is somewhat less obvious in a capital case where
the defendant seeks to preserve the nght to introduce psychiatric evidence only in mitigation of sentence in the
event he is found guilty, a circumstance not addressed under the current rule However, even in such circumstances,
the psychiatnc examination would be set in motion by virtue of the defendant’s strategic choice rather than the
prosecution’s demand for affirmative evidence supporting a finding o f guilt or of an aggravating sentencing factor
Further, as with the current version of Rule 12 2 as well as the alibi notice rule, the strategic choice the defendant
must make is predicated on an assumption that the government’s proof will suffice to support a finding of guilt.
Therefore, we believe that there is no greater reason to impose the burden of proof on the government in a case
where the defendant seeks to preserve his ability to introduce evidence of his mental condition only at the penalty
hearing than there is in other cases where current law allows for a court-ordered psychiatnc examination pn o r to
tnal


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                    Opinions of the Office o f Legal Counsel m Volume 22


in meeting a burden, similar to that imposed in Kastigar, to show that its case
against the defendant is based on evidence obtained from independent sources.
   We note, however, that a requirement that the prosecution establish in a capital
case that it made no use of statements obtained through a court-ordered examina­
tion would be based on a theory that would apply equally in noncapital cases—
that the defendant is at risk by virtue of the prosecution’s access, prior to the
defendant’s presentation of mental status evidence, to the results of the examina­
tion of the defendant. For example, if a court orders a pretrial mental health exam­
ination based on a defendant’s notice of intent to raise an insanity defense or
a mental condition bearing on guilt, and the prosecution obtains the results of
that examination, the prosecution may be exposed to the defendant’s statements
before the defendant presents his case and actually introduces testimony on mental
condition. Cases discussing the Fifth Amendment implications of a court-ordered
examination of defendants who intend to raise the insanity defense or to introduce
testimony on a mental condition bearing upon guilt do not appear to suggest that
the prosecution must, by virtue o f its exposure to the defendant’s statements, bear
the burden of demonstrating an independent source for the evidence it intends
to introduce against the defendant. See, e.g., United States v. Byers, 

, 1114—15 (D.C. Cir. 1984) (en banc) (plurality opinion of Scalia, J.)
(rejecting dissenting judges’ view that protection of self-incrimination privilege
requires “ intermediate safeguards” to “ protect the values underlying the privi­
lege” 

(Bazelon, J., dissenting); concluding that “ such fiats would be
appended to, rather than contained within, the self-incrimination clause of the Fifth
Amendment,” 

see also Kelly v. Withrow, 

, 369 (6th
Cir.) (holding that requirement that defendant submit to pretrial mental examina­
tion, following notice of intent to raise insanity defense, did not infringe defend­
ant’s privilege against self-incrimination; “ [A] defendant’s right not to incriminate
him self is not violated per se by requiring him, in an appropriate case, to submit
to a mental examination.” (internal quotation marks omitted; alteration in
original)), cert, denied, 

(1994); Giarratano v. Procunier, 

, 488 (4th Cir. 1989) (concluding that, since defendant had announced intention
to introduce psychiatric evidence in mitigation at the sentencing phase of capital
trial, prosecution could introduce psychiatric evidence even before defendant’s
expert testified), cert, denied, 

(1990); Vardas v. Estelle, 

, 210 (5th Cir. 1983) (holding that introduction of evidence from pretrial
mental examination did not infringe privilege against self-incrimination, where
testimony of state psychiatrist was “ offered solely in rebuttal to a defense of
insanity, and . . . properly limited to that issue” ), cert, denied, 

(1984); United States v. Madrid, 

, 1121 (10th Cir.) (holding that
admission o f statements obtained during pretrial mental examination did not
infringe defendant’s privilege against self-incrimination where the defendant gave
notice of his intent to raise the insanity defense before the examination occurred

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 Disclosure to the Government, During the Guilt Phase o f a Trial, o f the Results o f a Court-Ordered
                                       Mental Examination

and subsequently presented “ substantial” psychiatric evidence), cert, denied, 

(1982). If a Kastigar burden applies to court-compelled mental examina­
tions in capital cases, we believe that it would apply in other cases as well, but
we have identified no noncapital cases concluding that it is appropriate to impose
such a burden.

                                            Conclusion

   In sum, we do not believe that the Fifth Amendment’s privilege against self­
incrimination requires safeguards designed to prevent the prosecution from being
exposed, during the guilt phase of a capital trial, to the results of a mental health
examination ordered following a defendant’s notice of intent to introduce evidence
on a mental condition bearing upon sentencing. Even if statements made during
such an examination are properly viewed as “ compelled” statements, the Fifth
Amendment’s privilege against self-incrimination only precludes the prosecution
from improperly using such statements, or the fruits of such statements, at trial.
The prosecution’s mere possession of or access to the results of the mental health
examination would not implicate the Fifth Amendment’s privilege against self­
incrimination. It is unclear whether, in the absence of safeguards designed to with­
hold the results of a mental examination from the prosecution, a court would
impose a burden on the prosecution to establish an independent source for its
evidence without first requiring the defendant to demonstrate specific evidence
of taint. Courts do not appear to impose such a burden outside of the capital
context, even though the danger that the prosecution would directly or indirectly
use statements provided during a mental health examination exists there as well.
Nevertheless, if a court required the prosecution to establish that, at the guilt phase
of a capital trial, it made no direct or indirect use of statements obtained through
a sentencing-related mental examination of the defendant, the safeguards of pro­
posed Rule 12.2(c) would facilitate the government’s showing.

                                                               RANDOLPH D. MOSS
                                                          Acting Assistant Attorney General
                                                               Office o f Legal Counsel




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