APPEAL from the Circuit Court of Sangamon County; the Hon.
HOWARD WHITE, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
On September 6, 1963, a petition was filed under the Sexually Dangerous Persons Act, (Ill. Rev. Stat. 1961, chap. 38, par. 820.01-825e, now Ill. Rev. Stat. 1963, chap. 38, pars. 105-1.01 to 105-12,) to have defendant declared a sexually dangerous person. The court appointed two qualified psychiatrists to personally examine defendant as provided by the act and ordered defendant to appear before them individually for examination. The defendant appeared before the psychiatrists and informed each of them that he felt the compulsory examination was a violation of his constitutional rights. No examination was conducted and the court held defendant in contempt of court. Defendant appeals directly to this court on the ground that the contempt order violates his privilege against self-incrimination.
The defendant and the People have briefed the case as though the pivotal question is whether the proceeding under the Sexually Dangerous Persons Act is criminal or civil. Defendant's apparent contention is that the proceeding under the act resembles a criminal prosecution, and therefore the psychiatric examination would amount to compelling him in a criminal case to give evidence against himself. The People, on the other hand, argue that the proceeding is civil in nature and the privilege against self-incrimination is not applicable.
As we view the case the issues that must be considered are: (1) whether defendant is protected by the privilege against self-incrimination or by due process from submitting to the mental examination because the information he gives to the psychiatrists will be used in the commitment proceedings under the act; (2) whether he is privileged because the compelled information could be used in a subsequent criminal proceeding; and (3) if the defendant is privileged from submitting to the examination because it may tend to incriminate him, can this privilege be removed by a judicial grant of immunity.
It is well established that the privilege against self-incrimination protects against disclosure of facts involving criminal liability and not against civil liability. (8 Wigmore, Evidence (McNaughton, rev'd 1961) §§ 2253, 2254.) This raises the question, therefore, of the nature of the consequences imposed by the act upon a person found to be sexually dangerous.
The status of mental illness cannot be made a criminal offense for which the offender can be prosecuted and imprisoned. (See Robinson v. California, 370 U.S. 660, 8 L. ed 2d 758, 82 S.Ct. 1417.) A State may, however, in a civil proceeding adjudicate the status of mental illness and require involuntary confinement of the mentally ill person for treatment and for the protection of society. (See Robinson v. California, 370 U.S. 660, 8 L.ed.2d 758, 82 S.Ct. 1417; Lynch v. Overholser, 369 U.S. 705, 8 L.ed.2d 211, 82 S.Ct. 1063.) Specifically, the Supreme Court has upheld a Minnesota statute providing for the involuntary commitment of a sexual psycopath in a civil proceeding. (See Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 84 L.ed. 744, 60 S.Ct. 523.) Section 3.01 of the Sexually Dangerous Persons Act (par. 105-3.01) provides that the proceeding is civil in nature and this court has so construed it. People v. Sims, 382 Ill. 472; People v. Redlich, 402 Ill. 270; People v. Capoldi, 10 Ill.2d 261.
Defendant relies heavily, nevertheless, on the statement in People v. Nastasio, 19 Ill.2d 524, 529, that the proceedings under the act "closely resemble criminal prosecutions in many critical respects." That case held that procedural due process requires that a defendant be given the opportunity to confront the witnesses as in a criminal prosecution.
The fundamental procedural safeguards of the criminal law are explained by history, not by logic. Basic in most of these safeguards is the fear of abuses to the individual's liberty. Since the Sexually Dangerous Persons Act provides for involuntary confinement, although it be for the treatment of the defendant rather than punishment for a crime, it is natural that some of the same safeguards which are applicable in a criminal prosecution be applied to the proceedings under the act. This does not mean, however, that the commitment proceeding is a criminal prosecution or that criminal procedure as a whole must be followed in the proceeding. This is the thrust of the statement in the Nastasio case.
The Supreme Court in upholding the Minnesota statute stated, "We fully recognize the danger of a deprivation of due process in proceedings dealing with persons charged with insanity or, as here, with a psychopathic personality as defined in the statute, and the special importance of maintaining the basic interests of liberty in a class of cases where the law though `fair on its face and impartial in appearance' may be open to serious abuses in administration and courts may be imposed upon if the substantial rights of the persons charged are not adequately safeguarded at every stage of the proceedings." (Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 276-77, 84 L.ed. 744, 751, 60 S.Ct. 523, 527.) Indeed, it was this "special importance of maintaining the basic interests of liberty" in this type of case which led this court to hold in People v. Capoldi, 10 Ill.2d 261, that the admission in evidence of a confession of crime, without preliminary proof of its voluntary character.
While the nature of the proceeding under the act is such that due process requires a preliminary hearing to determine the voluntariness of an allegedly coerced confession and the confrontation of witnesses in order to protect defendant from the abuses at which these safeguards are aimed, the same is not true with regard to compelling a psychiatric examination to determine his status as a sexually dangerous person. Since no criminal liability is attached to the status of a sexually dangerous person, the evil at which the privilege is aimed is not present when the compelled examination shows no more than the existence or nonexistence of this status. The same conclusion has been reached in other jurisdictions as to sanity proceedings, in general (8 Wigmore, Evidence, (McNaughton, rev'd 1961) § 2257), sanity proceedings in connection with a criminal case, in particular, (Annotation, 32 A.L.R.2d 437, 444,) and specifically as to proceedings under statutes similar to ours. Annotation, 24 A.L.R.2d 350, 362.
This holding does not, however, dispose of the self-incrimination issue. It is possible that during the course of the psychiatric examination, the defendant would be called upon to make disclosures which will not only show his mental condition but may also disclose criminal conduct. If a disclosure which tends to show non-criminal status cannot be made without at the same time exposing defendant to criminal liability, the privilege will protect defendant from making the disclosure at all. 8 Wigmore, Evidence (McNaughton, rev'd 1961) § 2257.
No incriminating statement to the psychiatrist could be excluded from a subsequent criminal prosecution on the theory that it constituted a coerced confession. (3 Wigmore, Evidence (3rd ed.) § 850.) Nor does the act grant defendant immunity from the use of incriminating statements he may make to the psychiatrist as does section 104-2 of the Code of Criminal Procedure, (Ill. Rev. Stat. 1963, chap. 38, par. 104-2,) which deals with the mental competency of a criminal defendant. Section 104-2 provides that, "No statement made by the accused in the course of any examination into his competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding." By removing the incriminating nature of any statement made by the accused, the legislature has effectively removed the privilege in a hearing to determine his competency. See Halpin v. Scotti, 415 Ill. 104.
Section 5.1 of the Evidence Act (Ill. Rev. Stat. 1963, chap. 51, par. 5.1,) with certain exceptions provides that no physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient. While a psychiatrist is a physician, the privilege created by this statute is not applicable where the examination is by a court appointed physician because such examination does not constitute consultation with the physician in his professional character. (See 8 Wigmore, Evidence (McNaughton, rev'd, 1961) § 2382.) Section 5.2 of the Evidence Act, (Ill. Rev. Stat. 1963, chap. 51, par. 5.2,) with certain exceptions, provides specifically that that communication relating to diagnosis or treatment of the patient's mental condition between patient and psychiatrist is privileged from disclosure in civil and criminal cases and in proceedings preliminary thereto. Since the section goes on to define "patient" as "a person who for the purpose of securing diagnosis or treatment of his mental condition consults a psychiatrist," the privilege granted by the section would not apply where the court orders the psychiatric examination.
Subparagraph (b) of section 5.2 recognizes that there is no privilege where the court has ordered the examination, but the subparagraph does limit the admissibility of disclosures of statements made by the patient to the psychiatrist to issues involving the patient's mental condition. It is possible that the limit on admissibilty under section 5.2(b) could be construed to be a grant of immunity sufficient to remove the privilege against self-incrimination. We believe, however, that if the legislature had intended to grant an immunity from use of statements made to the psychiatrist during an examination made under the Sexually Dangerous Persons Act, which would be coextensive with the ...