Statements Made During an Evaluation

A court-ordered mental examination puts a defendant in a room with a professional whose job is to write down what is said and file it with the court. There is no privilege in that room. The protection that exists is a rule of admissibility, it is narrower than a privilege, and it can be given up without anyone intending to give it up.

What the rule protects

Federal Rule of Criminal Procedure 12.2 states the protection in three parts. No statement made by a defendant in the course of any examination conducted under the rule, whether conducted with or without the defendant's consent, may be admitted in evidence against the defendant in any criminal proceeding. Nor may testimony by the expert based on that statement. Nor may other fruits of the statement.

Each part matters. Barring the statement alone would leave the expert free to testify to conclusions drawn from it. Barring the testimony alone would leave the government free to follow an investigative lead the interview produced. The fruits clause is the one most often overlooked, and it is the reason a defense objection should be framed against the derivative evidence rather than only against the words.

A separate provision handles the competency finding itself. Section 4241 provides that a finding of competency does not prejudice the defendant in raising insanity as a defense and is not admissible as evidence at the trial of the offense charged. The two questions are answered on different evidence about different moments, and the statute keeps the answer to one out of the trial of the other.

How the protection is lost

The exception is not narrow in practice. The bar lifts on an issue regarding mental condition on which the defendant has introduced evidence: evidence of incompetency, evidence requiring notice of an insanity defense or of expert evidence of mental condition bearing on guilt, or expert evidence in a capital sentencing proceeding requiring notice. Once the defense puts mental condition in issue in one of those ways, the government may use the examination to meet it.

This is the trade the rule was built around, and it is a fair one. A defendant cannot offer an expert who examined him while keeping the government's examiner out, because the fact-finder would then hear one account of the same mind. But the trade has a timing problem: the examination usually happens long before the decision to offer mental condition evidence has to be made, so the material is already in existence and in the file when the choice arrives.

The warning and the notice

The Supreme Court held that a defendant subjected to a court-ordered psychiatric examination whose results are used against him at a capital sentencing proceeding is entitled to be warned beforehand, and that defense counsel must be notified in advance that the examination will encompass the issue on which the testimony is later offered. The reasoning rested on both the privilege against self-incrimination and the right to counsel: the examination is a critical stage, and a defendant told only that the interview concerns competence has not been informed of what is actually at stake.

The practical form of that holding is a warning delivered by the examiner at the start, recorded in the report, stating who ordered the examination, what it is for, who will receive the results and that the interview is not confidential. Its absence is a ground for exclusion where the government later seeks to use the material. Its presence does not make the interview a waiver of anything, but it does remove the argument that the defendant thought he was speaking to a treating clinician.

Nothing in the warning solves the underlying problem for counsel, which is that a defendant who cooperates supplies material that may later be turned around, and a defendant who does not may end up with a report that cannot answer the court's question and an order excluding the defense expert. There is no version of the choice that carries no cost. What can be done is to know before the interview which examination has been ordered, under which provision, and what the report will be used for.

Capital sealing and the two examinations

Capital cases receive an additional structural protection. Where the defendant gives notice of intent to present expert evidence of mental condition at a capital sentencing, the results and reports of an examination ordered solely on that basis must be sealed and disclosed to neither party unless the defendant is found guilty of one or more capital crimes and confirms the intent to offer the evidence. The purpose is to keep a sentencing examination from leaking into the determination of guilt, which is a risk the general rule does not fully address.

Two examinations frequently coexist in the same case and should not be run together. An examination into present competence answers a question about now and is ordered under the competency statute. An examination into mental state at the time of the offense follows an insanity notice and is ordered under a different section, producing a report addressed to a different moment. Ohio separates them expressly in the same provision. Keeping them distinct in the order, in the report and in the hearing record protects the limits described above.

Where they are run together, material gathered for a competency evaluation migrates into the case on the insanity defense without anyone deciding that it should, and the record no longer shows which question the defendant thought he was answering. The same care applies to a defense-arranged examination, which occupies a different position under the work product and confidentiality rules and is treated with obtaining an independent evaluation. Ordering one examination to cover both subjects saves a few weeks and gives up the separation the statutes were written to preserve.