POWELL V. HON. WILLIAM GRAHAM
CRIMINAL – Mental Examination
SC granted Defendant’s motion for writ of prohibition. While the trial court had the authority to order Defendant to undergo a mental examination by the prosecution’s expert, its order, as written, provides insufficient protection for Defendant’s Fifth Amendment rights. As such, the trial court’s order, insofar as it failed to provide such protection, was in error. Forcing a criminal defendant to undergo a mental examination by an agent of the prosecution immediately brings up core Fifth Amendment concerns. The gravity of these concerns and the nature of the constitutional right involved lead us to the conclusion that the harm caused by the compelled mental examination satisfies the "great injustice and irreparable injury" prong required under the proceeding erroneously writ standard.
SC held RCr 7.24(3)(B) was inapplicable to this case. The rule is applicable only when a defendant intends to offer evidence that directly bears on the issues of guilt or punishment, not in a situation such as this where evidence of the defendant’s mental instability relates to whether other evidence is to be barred from trial and, therefore, has only a tangential bearing on guilt. CR 35.01 is the applicable rule. The mental examination authorized by CR 35.01 in the context of a criminal case will inevitably infringe on a criminal defendant’s Fifth Amendment rights without some additional protection, yet the rule contains no default mechanism for safeguarding those rights. The easiest way to apply CR 35.01 in a fair manner is simply to impose on it the protective template from the criminal rule that it most resembles, RCr 7.24(3)(B)(ii). That rule reasonably restricts the scope and use of evidence obtained from the independent mental examination in a way that protects a defendant’s privilege against self incrimination.