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United States v. Gutman

decided: January 10, 1984.


Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 81-Cr-91 -- James E. Noland, Judge.

Posner and Coffey, Circuit Judges, and Fairchild, Senior Circuit Judge. Coffey, Circuit Judge, dissenting.

Author: Posner

POSNER, Circuit Judge.

This appeal by Phillip Gutman, the former president pro tem of the Indiana Senate, from his conviction for using his official position to extort money in violation of the Hobbs Act, 18 U.S.C. § 1951, requires us to consider several of the district court's procedural rulings.

The case grows out of the efforts of the Indiana Railroad Association, an association of railroads operating in Indiana, to get Indiana's "full crew" law repealed. In 1972 the Indiana Senate passed a bill to this effect which became law. According to Howard Odom, the Association's executive director and a key government witness at Gutman's trial, in 1973 Senator Gutman had told him that the Association had not treated Senator Edwards, the sponsor of the bill, right, and that Odom should see another influential senator, Gardner, about making amends. Odom went to see Gardner, who told him that all three senators -- Gutman, Edwards, and Gardner -- had worked hard for the passage of the bill and expected something in return -- to wit $1,000 a month for five years, to be split among the three senators. The implication was that the payments were a precondition to the senators' assisting the railroads to get favorable legislation in the future. The payments were made from 1973 to 1976 and formed the basis of the indictments of the three senators. (Gardner died before trial; Edwards pleaded guilty shortly after the beginning of the trial, in which he was a codefendant with Gutman.) Each $1,000 check was sent to Edwards, who then sent checks for $333 to Gutman and Gardner. Gutman deposited his checks in a personal account rather than in the account of his law partnership, although his defense at trial was that the money had been payment for legal services for the Association.

Odom had first manifested mental illness in 1944 while in the armed services. In January 1981, thirteen months before the start of the trial, and apparently as a result of the investigation which led to the indictments, he had been hospitalized for depression. One doctor reported at that time that "it was obvious [that Odom] is highly depressed and had some psychotic thought disorder, in addition to the difficulty he has in organizing and being relevant," another that Odom "displayed very definite paranoid ideas. . . ." One of the reports also states, however, "His thinking is clear in terms of historical events, but in regards to events in the past year he does not choose to speak openly about them. He does admit that he is in some type of difficulty." Odom was discharged in February 1981 but told to continue taking antipsychotic and antidepressant drugs. "The progress is guardedly favorable." But he was rehospitalized a month later after attempting to strangle his wife, and discharged a month after that with instructions to keep taking the medicine. During this hospitalization, a doctor reported that Odom "was able to give me a relatively complete and sensible history, although his manner appeared quite sour, mildly irritable and depressed throughout. . . . No significant evidence is seen of a major breakdown in reality testing, judgment of [or?] progress of thought, and his capacity for ordinary conventional thinking is unimpaired." But a doctor told Odom's lawyer: "it is my opinion you will have considerable difficulty in getting him to relate openly and satisfactorily in order to assist you in his own defense."

In December, two months before the trial was to begin, Gutman's counsel moved for an order that Odom be given a psychiatric examination before being permitted to testify. The district judge denied the motion, along with Gutman's motion for a pretrial hearing on Odom's competence to testify. Gutman's appeal challenges both of these denials.

Although insanity as such is no longer a ground for disqualifying a witness, see Fed. R. Evid. 601, a district judge has the power, and in an appropriate case the duty, to hold a hearing to determine whether a witness should not be allowed to testify because insanity has made him incapable of testifying in a competent fashion. But as with most issues of trial procedure we shall not reverse the judge's determination unless we have a clear conviction that he erred. We do not have that conviction here. Even if we assume (a matter on which the record is unclear) that Gutman in moving for a competency hearing for Odom put before the judge all the psychiatric reports from which we have quoted, we do not think those reports created such serious doubt as to Odom's competency as to compel the judge to grant a hearing on the question. That Odom had had bouts of serious mental illness in the year before the trial was beyond question, but the judge was entitled to conclude that the reports taken as a whole did not suggest that Odom was incapable of telling the truth or of appreciating the significance of his oath as a witness. We are reluctant to open the doors to sanity hearings for witnesses.

There is also no question that the district judge could have conditioned Odom's testifying on his agreeing to take a psychiatric examination the results of which would be available to Gutman's lawyer for use in impeaching Odom on the stand. The rule allowing the insane to testify assumes that jurors are capable of evaluating a witness's testimony in light of the fact that he is insane, cf. Advisory Committee's Note to Rule 601; and it may seem to follow that the jury, to assist it in evaluating such testimony, should have the results of an up-to-date psychiatric examination of a prospective witness who has given definite indications of serious mental illness, as Odom had. The courts that have addressed the question agree, however, that the power not to allow a witness to testify unless he submits to a psychiatric examination should be exercised sparingly. See, e.g., United States v. Raineri, 670 F.2d 702, 709 (7th Cir. 1982); United States v. Roach, 590 F.2d 181, 185-86 and n. 9 (5th Cir. 1979); United States v. Heinlein, 160 U.S. App. D.C. 157, 490 F.2d 725, 730-31 (D.C. Cir. 1973). It is unpleasant enough to have to testify in a public trial subject to cross-examination without also being asked to submit to a psychiatric examination the results of which will be spread on the record in open court to disqualify you, or at least to spice up your cross-examination. And while Howard Odom's privacy may already have been hopelessly compromised by the government's having turned over to the defense (pursuant to Odom's guilty-plea agreement) seven psychiatric reports on him, with no restrictions placed on their use in cross-examination or in arguing to the jury, this also meant that the defense had plenty of psychiatric ammunition to use against Odom, and hence that Odom's mental condition was not concealed from the jury. As a matter of fact, the reports were read in toto to the jury, which thus knew that Odom had a history of serious mental illness and that his latest hospitalization had occurred under bizarre circumstances nine months before the trial. And that a mentally ill person may give testimony that is false (though he may believe it to be true) is a possibility that a jury should be capable of understanding and making appropriate allowance for. Gutman argues, moreover, that Odom's testimony was "incoherent." If so, the jury would have discounted it. If a lunatic takes the stand and babbles gibberish, the jury will ignore it and the defendant will not be harmed. Finally, the parts of Odom's evidence that Gutman points to as showing his incoherence could not have hurt Gutman, as when Odom said, "I have been lying about this thing and I want to tell the truth," or when he said, "The first part of the Grand Jury report I lied about," and then a few questions later said, "I don't think I lied to the Grand Jury, now that I think about it."

Gutman also argues that the district judge should have instructed the jury to disregard Odom's testimony, because the testimony, whether because of Odom's mental illness or some other cause, was so internally inconsistent -- so "incoherent" in a logical sense -- that it was entitled to no weight. We have read the transcript of Odom's testimony and do not find in it any abnormal degree of internal inconsistency, bearing in mind that Odom was in the uncomfortable position of testifying to illegal conduct to which he had been a party. In regard to the initial meeting with the three senators and to the monthly payments on which the charge of extortion was based, Odom's story was consistent, though he testified that he did not regard the payments as extortion. Odom also testified about a $40,000 payment to Gutman, a payment which was not charged as extortion but about which the government was allowed to present evidence anyway (whether this "other crimes" testimony was proper is considered next). His testimony about this payment contained a significant inconsistency: he repudiated the story he had given the FBI regarding one of the two conversations he had had about Gutman concerning the payment. But of course it is common for witnesses to change their stories on the stand; if that were enough to disqualify a witness there would not be many successful prosecutions. Impeachment of a witness does not compel exclusion of his testimony.

The $40,000 check that Gutman received from the Association he again deposited in a personal account and did not report as partnership income, and according to a railroad president's testimony the payment was a bribe or payoff for other assistance rendered by Gutman to the railroads. Gutman points out that the indictment did not charge him with receiving any $40,000 bribe or payoff and argues that the introduction of such evidence of another crime was improper and extremely prejudicial. Prejudicial it was; the amount was greater than Gutman had received from the extortion for which he was tried. But it also was material. Gutman did not deny receiving $333 a month from the Association through Edwards. His explanation was that this was a retainer for representing the Association in various matters. The fact that he received $40,000 from the Association in circumstances powerfully indicating that it was a bribe or payoff (Gutman claimed that the payment was for legal services rendered in connection with a drainage problem, but he had not been retained by any of the parties concerned with the problem) tended to discredit his explanation of the monthly payments that he was charged with having extorted, and was therefore relevant to the specific extortion charge against him. It also connected him to the Association, which was important because he had not received the monthly checks directly from the Association, but through Edwards. Relevant evidence of other crimes is admissible provided that it is clear and convincing (so that the government is not tempted to introduce evidence of crimes of which the defendant may well be innocent) and that its probative value outweighs its prejudicial impact. United States v. Dolliole, 597 F.2d 102, 106-07 (7th Cir. 1979). Rule 403 of the Federal Rules of Evidence commits the balancing judgment to the discretion of the district judge, who is in a better position than we appellate judges to assess the impact of testimony on a jury and whose determination can therefore be upset only if he has made a clear error, 597 F.2d at 107, which we do not think the district judge made in this case.

The last issue is whether the district judge should have held a hearing to explore Gutman's charge that the jury was prejudiced against him. This charge is based on several incidents, none very significant in itself. The first is that Gutman's codefendant, Edwards, disappeared from the dock shortly after the jury was impaneled, because he had pleaded guilty; and though the jury was not told the reason for his disappearance -- was told only that it should not speculate on the reason -- several jurors learned from radio or television news reports or newspaper headlines that Edwards had pleaded guilty. The district judge asked the jurors whether they could consider Gutman's case independently of Edwards'. Two said they could not and were excused. A third later told the judge that he had made up his mind and he was excused too. Alternates replaced the excused jurors. After the trial was over Gutman submitted affidavits of several jurors which indicated -- what was anyway clear from the inquiry about Edwards' plea -- that they had heard or read about the trial in the media.

The fact that jurors, several or all, knew that Gutman's codefendant had pleaded guilty was not a ground for a mistrial, as we have held many times. E.g., United States v. Aldridge, 484 F.2d 655, 659 (7th Cir. 1973). When a codefendant drops out in the course of trial, a juror would have to be pretty stupid not to surmise that he had pleaded guilty; and if this knowledge were grounds for mistrial it would be impossible for a defendant in a multiple-defendant case to plead guilty after trial began. The fact that three jurors were excused, two because knowledge of Edwards' plea had made it impossible for them to judge Gutman impartially, was no ground for a mistrial either. That several jurors were willing to come forward and state to the judge that they could not decide the case impartially shows only that the judge had succeeded in creating an atmosphere in which jurors were unafraid to voice in open court doubts about their own impartiality.

A typical affidavit was that one juror had heard on the radio "comments in regard to progress of the trial." Any juror with eyes and ears is likely to hear some media comments on a trial of a prominent person. The best he can do is to tune out as quickly as possible, which so far as appears is what the jurors did. If Gutman was concerned that the jury would be "contaminated," as his brief puts it, by media reports on the trial, he should have moved to sequester the jury, and he did not.

The practice of getting affidavits from jurors to impeach their verdict, though no longer considered improper when the affidavit is not about the juror's thinking process in arriving at the verdict but about extraneous factors such as media coverage that may have infected that process, must not be encouraged. The practice is inherently intimidating, cf. Miller v. United States, 403 F.2d 77 (2d Cir. 1968) (Friendly, J.), and if it ever becomes widespread will make it even more difficult than it already is to get competent people to serve on juries. No adequate showing of need to engage in such solicitation was made here and the district judge was therefore not required to consider the affidavits, which in any event did not show that the jury was prejudiced.

Finding no reversible error we




COFFEY, Circuit Judge, dissenting.

The majority in the present action has decided to affirm the defendant Gutman's conviction. In so doing, they have upheld the district court's denial of Gutman's motions: (1) for a pretrial hearing to determine the competency of Howard Odom, a key government witness; (2) for an order requiring that Odom undergo a psychiatric examination before being allowed to testify; and (3) for an order striking Odom's testimony. Because I conclude, after a thorough review of the record, that the district court erred in denying these three motions, I respectfully dissent.


An examination of the record reveals that the defendant's motions and arguments concerning Odom's questionable ability to testify truthfully and coherently have substantial merit. Odom's history of psychiatric problems dates back to 1944 when he received a medical discharge from the United States Army for "psychoneurosis." On January 16, 1981, only 13 months prior to trial in the present case, he was hospitalized for psychiatric treatment to rectify his then depressed mental state. One of the attending doctors observed during this hospital stay that: " the patient is highly depressed and has some psychotic thought disorder in addition to the difficulty he has in organizing and being relevant. His nihilistic and paranoid ideas are expressed with little apparent insight." Another doctor also noted Odom's " definite paranoid ideas." On February 12, 1981, he was released with a "guardedly favorable" prognosis provided he continued to take his medication as prescribed.

He failed to do so, however, and was re-committed pursuant to an emergency court order on March 13, 1981, some 11 months prior to trial, when he apparently attempted to strangle his wife. During this attempted violent assault, he remarked that he had to do it. This hospital stay lasted until April 10, 1981. On May 29, 1981, approximately nine months before trial, Odom's attorney (Odom at that time was a defendant in the present action) received a letter from Odom's psychiatrist explaining that:

"Mr. Odom has a very long-standing personality pattern best described as chronic anxiety defended against by obsessive -- compulsive mechanisms. These, in general, have kept him from serious decompensation until the recent stress factors in his life [those being his implication in the present action]. Certainly, in January of 1981 he did decompensate into a psychotic depressed state. Since then, he has been in contact with reality, but his adjustment still leaves much to be desired. He continues to have great difficulty in facing his present situation in a straightforward and effective manner. He is prone to postpone or to try and evade coming to grips with his external problems. I feel certain that his recent request to appear before a grand jury has created sufficient increase in his stress that he has slipped back and withdrawn more into his previous mental state." (Emphasis added.)

In conclusion, the psychiatrist stated:

"In view of the experience I have had with him over these past five months, it is my opinion that you will have considerable difficulty in getting him to relate openly and satisfactorily in order to assist you in his own defense."

Some two months prior to trial, Gutman filed a motion requesting that a hearing be held regarding Odom's competency to testify, that Odom be ordered to undergo a psychiatric examination and that Odom's medical records be released. Both Odom and the Government opposed these motions which ultimately were denied by the trial court.

Three days before the trial was to commence, Odom entered into a plea agreement wherein he agreed to plead guilty to one count of the indictment and to testify, if subpoenaed, on behalf of the government. In return, the government agreed not to make any sentencing recommendation. At the final pretrial conference, held on the same day the plea agreement was executed, Gutman renewed his motions for a competency hearing and a psychiatric examination of Odom. It was not until this point in the proceedings, the very eve of trial, that Odom waived his physician/patient privilege thereby permitting access to his medical records. Thus, the specific nature and severity of Odom's psychiatric problems were not revealed to Gutman or his attorneys prior to this release of the medical records. Both Odom and the government again opposed Gutman's motions which the trial court again denied.


A. Motion for a Competency Hearing.

With respect to Gutman's motion for a competency hearing, the majority states:

"Although insanity as such is no longer a ground for disqualifying a witness, see Fed. R. Evid. 601, a district court judge has the power, and in an appropriate case the duty, to hold a hearing to determine whether a witness should not be allowed to testify because insanity has made him incapable of testifying in a competent fashion."

While I agree with their general statement of the law in this regard, I cannot agree with the majority's determination that the failure to hold a competency hearing was not error requiring reversal in the present case where a substantial doubt existed as to the competency of the government's key witness.

The competency of a witness and the admissibility of his testimony are preliminary questions entrusted to the discretion of the trial judge. Fed. R. Evid. 104(a). That discretion is not unlimited, however, and is subject to appellate review for abuse. But even if evidence is admitted in error, reversal is not automatically required. Fed. R. Evid. 103 provides:

"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . ."

Thus, Gutman must not only demonstrate that the trial court abused its discretion, but he must also show that the erroneous admission of Odom's testimony affected his substantial rights. I believe he has met that burden.

With regard to the need for a competency hearing, it is my considered view that Rule 601 continues to place both the responsibility and the burden upon the trial judge to evaluate, in appropriate cases, the witness's mental capability to determine whether his testimony would be of benefit to the jury's deliberation in light of his questionable reliability. The issue is whether the witness is so unreliable and therefore untrustworthy that the admission of his testimony would be an abuse of discretion due to its potential to mislead and/or confuse the jury (under Fed. R. Evid. 403) and its corresponding lack of probative value (under Fed. R. Evid. 401).

As the Fourth Circuit stated in United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982):

"Every witness is presumed competent to testify, Fed. R. Evid. 601, unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully."

Id. at 1028 (emphasis added). Thus, if there is a substantial doubt concerning a witness's competency to testify, whether it be in regard to his capacity to recall, or his understanding of the obligation to tell the truth, the trial court not only has the power but, in addition, has the duty to rule the witness incompetent to testify. When such a doubt is raised the judge should at the very least order a hearing to determine whether that witness has the mental capacity to testify truthfully and accurately.*fn1 The majority does admit that the trial court has the obligation to hold a hearing to determine a witness's competency "in an appropriate case. . . ." Majority opinion at 420.

My position regarding the need for a competency hearing in the case of a witness whose capacity is in serious doubt finds support in several treatises on evidence. For example, Professor Graham states:

"When Rule 601 is viewed in light of Rules 602, 603 and 403, it becomes manifest that in spite of any contrary implications in Rule 601, a witness must possess sufficient mental capacity to observe, record, recollect, and narrate as well as an ability to understand the duty to tell the truth, and that the court in its discretion may both conduct a preliminary hearing and order a psychiatric examination in aid of its determination. If the witness by reason of age, retardation, injury, or illness is so severely mentally deficient that a reasonable juror could not put any credence in the witness's testimony, i.e., the witness lacks minimum credibility, the court must find that the witness is incompetent to testify. Minimum credibility should be evaluated in light of the need for the witness' testimony as well as the factors listed in Rule 403."

Graham, Handbook of Federal Evidence, § 601.2 at 377-78 (1981) (emphasis added, footnotes omitted). Weinstein is in accord.

"Since there are no longer artificial grounds for disqualifying a witness as incompetent, the traditional preliminary examination into competency is no longer required. But a trial judge still has broad discretion to control the course of a trial (Rule 611) and rule on relevancy (Rules 401 and 403). If competency is defined as the minimum standard of credibility necessary to permit any reasonable man to put any credence in a witness's testimony, then a witness must be competent as to the matters he is expected to testify about; it is the court's obligation to insure that he meets that minimum standard. In making this determination the court will still be deciding competency. It would, however, in view of the way the rule is cast, probably be more accurate to say that the court will decide not competency but minimum credibility. This requirement of minimum credibility is just one aspect of the requirement of minimum probative force -- i.e., relevancy. Regardless of terminology, the trial judge may exclude all or a part of the witness' testimony on the ground that no one could reasonably believe the witness could have observed, remembered, communicated or told the truth with respect to the event in question. He may use the voir dire to make this determination."

3 Weinstein and Berger, Weinstein's Evidence para. 601[01] at 601-(9-10) (1982) (footnotes omitted). See also United States v. Banks, 520 F.2d 627, 630 (7th Cir. 1975).

In the case at hand, in view of Odom's severe psychiatric history, serious questions existed concerning: (1) his ability to accurately recall the matters about which he was summoned to testify, and (2) his capacity to accept and understand the duty to speak truthfully. As to the latter duty, it should be pointed out that Odom's psychiatric reports document his admission that he " has been a liar and conning people for years." Additionally, Odom's psychiatrist concluded that the increase in stress resulting from his appearance before the grand jury had been enough to trigger his most recent psychotic episode. Certainly Odom's psychiatric history coupled with his psychiatrist's evaluation that increases in stress could and did cause him to decompensate should have raised a reasonable doubt in the mind of the trial judge about Odom's ability to testify truthfully and accurately, particularly under the greater stress surrounding in-court direct and cross-examination testimony.*fn2 Thus, contrary to the cursory analysis of the majority wherein they deny any need of a competency hearing, there was a serious question concerning Odom's ability to truthfully testify which should have triggered an immediate and careful examination by the trial court.*fn3 This is especially true because Odom's testimony was crucial to the government's case.

In a key witness situation it becomes imperative that a competency hearing be held. As the court in United States v. Crosby, 149 U.S. App. D.C. 306, 462 F.2d 1201 (D.C. Cir. 1972), stated:

"Once a trial judge is confronted by any 'red flag' of material impact upon competency of a witness, an inquiry must be made into the facts and circumstances relevant thereto.

The competency standard for witnesses may vary depending on the importance of the witness to the case. Where, as here, the witness is the key witness for the prosecution, justice demands a strict standard of competency."

Id. at 1203 (emphasis added). Reason and common sense dictate that as the importance of the witness increases, the need to ensure his reliability correspondingly increases. Thus, when Odom's tenuous grasp of reality is combined with the key nature of his testimony the need for a competency hearing to ensure the fairness of the defendant's trial becomes clearly apparent, as does the trial court's error in denying such a hearing.

The government argues that there was adequate and significant testimony other than Odom's, which implicated Gutman in the crimes charged.*fn4 Contrary to the government's contentions, however, it was Odom's testimony that provided the evidence directly linking Gutman to the money paid by the Indiana Railroad Association ("IRA"). In addition, Odom was the only witness to testify with regard to the alleged reason why that money was paid, i.e., to ensure the passage of legislation favorable to the Association. While the Government stresses other testimony such as Gutman's failure to report the money he admittedly received, it is inconceivable that this circumstantial evidence alone could establish each and every element of the crime of extortion necessary for a finding of guilt since only Odom's testimony provides the key link -- abuse of official position to extort money from the IRA. Based on the essential nature of Odom's testimony, and the substantial doubts surrounding his reliability due to his psychiatric history, I conclude that a competency hearing was required and that it was an abuse of discretion not to conduct such a hearing.

Finally, I merely note that contrary to the majority's view, my dissent does not "open the doors to sanity hearings for witnesses." Rather, it simply enunciates the law as it exists under the Federal Rules of Evidence. See supra, Graham, Handbook of Federal Evidence, § 601.2; and 3 Weinstein and Berger, Weinstein's Evidence, para. 601[01].

B. Motion for an Order of a Psychiatric Examination.

Closely related to the issue of whether the trial court erred in refusing to conduct a competency hearing is the question of whether the trial court erred in refusing to order Odom to undergo a psychiatric examination before allowing him to testify. A current psychiatric examination would obviously be extremely relevant evidence on the question of Odom's competency to testify. Such an examination would also be germane to the issue of his credibility.

In United States v. Benn, 155 U.S. App. D.C. 180, 476 F.2d 1127 (D.C. Cir. 1972) the court was faced with defendants whose convictions turned on the testimony of an 18 year-old mentally retarded girl who had in the past both fantasized and been inconsistent in her memory.*fn5 With regard to the need for a psychiatric examination, the court stated:

"The dangers which must be considered in determining whether a mentally retarded rape prosecutrix is a competent witness must also be considered by the jury in assessing her credibility, particularly since 'the jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. . . .' The jury may be aided in its task by the results of a psychiatric examination, even when such an examination is not necessary to the judge's determination of competency. When an examination should be ordered to aid the jury is also a judgment, involving a balancing of need against dangers, which is committed to the discretion of the trial judge."

Id. at 1131 (quoting Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959)) (footnotes omitted). Thus, an examination would have provided the jury with extremely relevant evidence as to Odom's credibility.

The court in Benn ultimately determined that such an examination was not necessary because it found "strong indications of reliability of the prosecutrix's testimony. . . ." Id. Referring to these indications of reliability, the court stated:

"In the present case the trial court found that the prosecutrix demonstrated an understanding of her duty to tell the truth and a capability to observe and remember. A comprehensible narrative does emerge from the sum of her testimony. Also, as the cautious trial judge noted before allowing the witness to testify, there was substantial corroboration to her testimony giving extrinsic assurance of its reliability. Finally, the judge had the benefit of the girl's father's testimony as to her retardation to assist him."

Id. No such "strong indications of reliability" can be found in the case at hand. The trial court made no finding regarding Odom's understanding of the duty to tell the truth or of his capacity to observe and remember, nor was there substantial corroboration of Odom's testimony. Additionally, a comprehensible narrative did not emerge. Thus, the reasons which weighed against an order of a psychiatric examination in Benn simply do not exist in the present case. On the contrary, there were unanswered doubts surrounding Odom's reliability which were ultimately borne out by his testimony.*fn6 See, e.g., discussion of motion to strike, infra. Thus, the issues of Odom's competence and credibility heavily favored an order of a psychiatric examination, and unlike Benn, the trial court's denial cannot be justified by reference to any countervailing indications of reliability.

In the First Circuit's recent United States v. Hyson, 721 F.2d 856 (1st Cir. 1983) decision, the court denied the defendant's first motion to have the questioned witness examined to determine whether he was under the influence of drugs. On the second day of his testimony, the court sua sponte requested the witness to be examined for drug use after he had difficulty speaking and had mentioned that he felt sick. The witness had to that point repeatedly denied drug use. Two days after the court's request, the examining doctor testified (outside the jury's presence) that, based on his examination, the witness had been under the influence of phencyclidine when he testified which had caused him to be "an acute confusional state." The doctor went on to explain that this "state" would be expected to clear within 24 hours. Upon receiving this testimony, the court requested the doctor to re-examine the witness to determine his present competence to testify; the procedure we feel was absolutely necessary in the present case. The doctor, upon this re-examination, concluded that the witness's mental status was "much improved" over his confused state just two days prior. Relating Hyson to the case at bar, it should be noted that the fact Hyson involved drug intoxication does not make it inapposite since both insanity and drug intoxication directly affect the reliability of a witness's testimony. While Odom did not appear to have difficulty speaking, his testimony was confused, inconsistent and contradictory which obviously more than justifies an order of an examination. If the trial court had required an examination as in Hyson, Gutman would have little to complain about since a qualified psychiatric determination would have been available as to both the question of competence and credibility.*fn7

Based on the foregoing analysis, I find it hard to understand how the majority can conclude that a psychiatric examination was unnecessary. Mindful of our society's choice to presume innocence until proven otherwise, I place the question to the majority whether they believe they would receive a fair trial if, as criminal defendants, they faced an accusing witness who had Odom's history of mental illness and instability, and the trial court refused their request to obtain some meaningful type of psychiatric determination of that witness's grasp of reality at the time of trial. The question becomes whether under such circumstances we can truly say that the defendant has received a fair trial as required by the Fifth Amendment.

The majority recognizes that the trial court "could have conditioned Odom's testifying on his agreeing to take a psychiatric examination the results of which would be available to Gutman's lawyer for use in impeaching Odom on the stand." They conclude, however, "the courts that have addressed the question agree . . . that the power not to allow a witness to testify unless he submits to a psychiatric examination should be exercised sparingly." I agree that such power "should be exercised sparingly," but if the facts of this case do not compel the use of that power, then no case will ever provide circumstances justifying such an order. In my twenty-nine years on the bench, I have never observed a set of circumstances which more appropriately warrant the order of a psychiatric examination. This suit presents a witness having a history of severe psychiatric episodes. He had two breakdowns within thirteen months of trial; both requiring hospitalization, with the second hospitalization being pursuant to an emergency court order. The psychiatric evaluations of that witness state that the increased stress surrounding his appearance before the grand jury was enough to trigger a psychotic episode thereby raising a definite possibility that such an episode would be repeated during his testimony at trial. Finally, that witness's testimony at trial was confused and inconsistent.*fn8 What more does the majority believe is necessary before it finds an abuse of discretion for failure to order an examination?

The majority, however, is unrelenting. In support of their decision they state that the defense had seven psychiatric reports available to impeach Odom's testimony and thus they conclude that Gutman had "plenty of psychiatric ammunition to use against Odom." With regard to quantity, this may be true, but if quality and relevance are factors in evaluating evidence, these reports were of little worth. Gutman's concern was with Odom's mental state at the time he testified, not with his mental state some nine months (the age of the most recent psychiatric report at the time of trial) to 38 years (the first reference to a psychiatric problem in the reports)*fn9 prior to that date. I do not understand how the majority can fail to recognize the substantially depreciated value of this outdated psychiatric evidence to the questions of Odom's competency and credibility at the time of trial.

Based on the foregoing analysis, I conclude that the trial court abused its discretion in refusing to order Odom to undergo a psychiatric examination and that this error cannot be characterized as harmless under any circumstance due to the importance of Odom's testimony to the government's case.*fn10 By taking this position I do not mean to infer that I believe that any time a defendant alleges that a witness has a mental problem that a psychiatric examination must be ordered. I recognize that psychiatric examinations, if freely ordered by trial courts on defense counsel's mere allegation of mental instability, could pose a serious threat to the truth-finding process by providing a potent tool to harass and intimidate witnesses. If, however, the ordering of such examinations is limited to narrowly defined circumstances, as in the present case, the witness's privacy interests (including the possible problems of harassment) are outweighed by the need for relevant psychiatric evidence.

As the preceding statement implies, before a psychiatric examination is ever ordered the requesting litigant must be required to demonstrate a substantial need for such evidence. In the present case, such a need is apparent since a current psychiatric examination would provide Gutman with the most relevant evidence to attack the credibility of Odom who, as has already been noted, had a very questionable mental history and was crucial to the government's case. There are several other factors, however, beyond ...

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