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People v. Whitt8/27/1984
garding the admissibility of Dr. Flanagan's testimony. (Ante, pp. 748-749, fn. 21.) Dr. Flanagan had viewed defendant's post-arrest interview during which defendant asserted his Miranda rights. Rather than reveal the content or substance of any of defendant's statements, or even the fact that he had refused to talk with the officers without an attorney present, Dr. Flanagan merely testified that defendant seemed alert and observant, lacking any symptoms of mental illness or intoxication, and capable of taking a "self-serving" position, and "[choosing] a course of action."
The majority holds the foregoing testimony entirely inadmissible on two wholly indefensible grounds. First, the majority complains that such testimony enabled the prosecutor to "use" and therefore "penalize" defendant's constitutionally protected right to refuse to incriminate himself. The serious and conclusive flaw in the majority's analysis is that Dr. Flanagan never testified regarding defendant's assertion of his constitutional rights. Instead, the doctor's testimony related generally to defendant's appearance, mental condition and capacity to reflect. No mention whatever was made of defendant's assertion of his Miranda rights or his refusal to cooperate with the officers.
Nor does the majority's second reason for barring such testimony withstand close scrutiny. According to the majority, Dr. Flanagan's testimony "made use of a compelled communication to provide evidence of Whitt's guilty mens rea. Whitt was compelled to speak in order to assert his constitutionally protected right to silence." As indicated above, however, no such forbidden "use" occurred, for Dr. Flanagan made no reference to defendant's assertion of his constitutional rights, "compelled" or otherwise. The majority's reliance upon People v. Rucker (1980) 26 Cal. 3d 368, 380-386 [162 Cal. Rptr. 13, 605 P.2d 843], is wholly misplaced. In Rucker, the defendant's own tape-recorded statements were read to the jury, supposedly for the limited purpose of indicating his mental state. Because the officers had violated the defendant's Miranda rights, however, his statements were held inadmissible even for that limited purpose. In the present case, by contrast, none of defendant's statements were admitted in evidence; moreover, no Miranda violation ever occurred. Rucker is totally inapposite.
I suggest that the majority's footnote ruling will have a devastating effect upon the prosecution's ability in future cases to rebut a defendant's reliance
upon so-called "mental" defenses. As I understand it, henceforth all testimony (presumably whether lay or expert) regarding the defendant's apparent mental condition or state of mind will be inadmissible if such testimony was based upon observing the accused in the course of a confrontation or interview culminating in his exercise of Miranda rights. Since such "interviews" frequently terminate in that manner, the People will be deprived of critical, highly relevant evidence demonstrating the accused's state of mind at a time usually quite contemporaneous with the commission of the crime. Such a far-reaching ruling should not be relegated to a mere footnote for "guidance" on retrial.
I would affirm the judgment in its entirety.
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