[96] BAZELON, Senior Circuit Judge, with whom WALD, MIKVA, and HARRY T. EDWARDS,[fn*] Circuit Judges, join, dissenting: [fn*] With exceptions noted at pp. 1155, 1161, and 1173.

Billy Byers conceded his actus reus, and pled not guilty by reason of insanity to a charge of first degree murder. The court ordered a comprehensive psychiatric examination by experts at St. Elizabeths Hospital to determine Byers' competency to stand trial and capacity to form intent. A team of psychiatrists and psychologists concluded that at the time of the commission of the acts charged, Byers "probably lacked substantial capacity to appreciate the wrongfulness of his conduct" and "[lacked] the requisite specific intent." Displeased with the conclusions of the doctors at St. Elizabeths, the government sought, and the court granted over defense objection, a second examination at the Department of Justice Medical Center for Federal Prisoners in Springfield, Missouri.

In this custodial environment one thousand miles from home, Billy Byers spent eight weeks under the probing supervision of government psychiatrists. From those eight weeks there emerged one brief, ambiguous statement from one interview which, when presented at trial, proved "devastating" to Byers' defense. One psychiatrist testified that Byers had told him that the crux of his insanity defense was a post hoc rationalization invented by Byers' estranged wife and communicated to him after the homicide.

None of the indicia that might support the trustworthiness of such a damaging admission were present in Byers' case. No recording of the interview was made. No third party witnessed the admission. The doctor's notes of the session were destroyed when he dictated his report to the court one week later. This report, which the doctor testified accurately reflected those notes, contains no reference to Byers' alleged admission. Nor was this admission included in the staff evaluation report. Nor did the doctor share his discovery with any of the other psychiatrists assigned to the evaluation. Rather, for nearly a year, the sole repository of this statement which would, in the words of the trial judge, "torpedo the [defendant] out of the water," was the memory of this one psychiatrist. To this day, we know nothing about Mr. Byers' precise words, the form and content of the psychiatrist's questions, and the context in which the statement was elicited. All that we do know is that this welter of confusion and doubt was sufficient to support Billy Byers' conviction for murder.

This extraordinary background to a murder conviction vividly illustrates the grave potential for abuse that inheres in the court-ordered psychiatric examination. It is the obligation of this court to assure that compelled psychiatric examinations are administered fairly and that the results are reliable and susceptible to scrutiny. In affirming Byers' conviction, the court has failed in its obligation. This case demonstrates the necessity of compiling a full and objective record of every court-ordered insanity examination. In the absence of such a record, Byers' examination at Springfield and, consequently, the admission of the psychiatrist's testimony, were in clear violation of Byers' Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to effective assistance of counsel. In addition, I believe that the testimony should have been excluded in the exercise of our supervisory power over the administration of criminal justice. I therefore dissent.

I. BACKGROUND

On September 18, 1976, Billy Byers approached Jacqueline Dickens, his former lover, while she was on a neighbor's porch conversing with friends. He asked her in a quiet voice if she would join him for a walk, and she declined. After renewing his request, Byers, without further word, pulled a sawed-off shotgun from beneath his shirt and fired, killing Dickens instantly. Byers turned and walked slowly back down the street to his home, where he telephoned the police. He met the police at the door and told them, "I did the shooting and I shot her." He led police to his kitchen where he retrieved the shotgun for them. He was then placed under arrest.

At Byers' arraignment, the court granted his motion for a comprehensive psychiatric examination pursuant to 24 D.C. Code Ann. § 301(a) (1973). The St. Elizabeths staff found Byers competent to stand trial but concluded that at the time of the offense, Byers suffered from a serious mental disease and lacked the capacity to appreciate the wrongfulness of his conduct.

At a hearing on January 27, 1977, the court, with the agreement of the parties, entered an order finding Byers competent to stand trial. At that time, the government moved for an "independent examination" of Byers at the federal prison medical facility at Springfield, Missouri. The court overruled an objection by Byers' counsel and ordered a second dual purpose examination.

Byers arrived at Springfield on February 25, 1977 and was placed in the forensic unit under the supervision of Dr. Nicola Kunev. Three days after his arrival, Mr. Byers had his only interview with Dr. Kunev. Byers was also interviewed by other members of the Springfield staff, who concluded in their report to the court that Byers was competent and sane. The report made no charge of malingering and made no reference to any purported admission by the defendant. Dr. Kunev was not present at the staff conference at which the official hospital diagnosis was made.

At trial, the defense offered the testimony of the psychiatrists from St. Elizabeths, and the government responded with the expert testimony of doctors who had examined the defendant at Springfield. The dispute turned on whether Byers' symptoms of mental disease were feigned and on the proper diagnostic category to assign to those symptoms if genuine.

The St. Elizabeths psychiatrists concluded that Byers was suffering from paranoid delusions at the time of the incident and that these symptoms were so severe that he lacked the capacity to conform his conduct to the requirements of the law. These doctors found the question of Byers' sanity "not a clear-cut case." They did conclude, however, that Byers' mental disease. was in remission at the time of the examination in November, 1977, and that the earlier symptoms had not been feigned.

The Springfield psychiatrists rejected this diagnosis. They concluded that Byers' claimed disease could not have gone into remission in the manner described by the St. Elizabeths psychiatrists. In their view, Byers was probably exaggerating his symptoms. Moreover, even if he were not, these symptoms did not indicate the existence of an underlying psychosis, a prerequisite, in their view, for an opinion of nonresponsibility.

One Springfield psychologist, Dr. Varhely, directly disputed the pathological theory underlying the St. Elizabeths diagnosis, finding that Byers had superstitions or "magical thinking," rather than paranoid delusions. In addition, on the basis of an objective test that he conducted, Dr. Varhely found no evidence of Byers' conscious malingering, but did find "unconscious exaggeration of symptoms."

In his testimony, Dr. Kunev offered a similar opinion and a similar approach to the diagnostic criteria for paranoid delusions. Finally, he recounted a series of statements allegedly made by the defendant during their sole interview. He testified that he asked Byers for his explanation of the shooting and Byers responded that he had none. But Dr. Kunev pressed the inquiry; the record, of course, does not reveal how vigorously or in what way he pressed the defendant. Rather, we are left solely with Dr. Kunev's account at trial:

I asked him, since that has been several months since the incident if he has some idea what might have been the reason for the shooting.

He said that this is a question that Mrs. Byers asked him about the time that he was admitted to St. Elizabeths Hospital on November 11th, 1976, and that his answer to her was the same, that he has no answer why he did shoot Mrs. Dickens.

Dr. Kunev then offered what proved to be the testimony that "devastated" Byers' defense:

At that time, Mr. Byers said that Mrs. Byers suggested to him that this could be under the influence of some magic, or spells or some influence of roots.

And Mr. Byers said that not having any other explanation, this appeared as a possible answer to the reason for the shooting.

Dr. Kunev construed these statements to mean that Byers' delusions, in fact, originated with this conversation with Mrs. Byers. The doctor concluded that since the claimed delusions did not arise until after the homicide, they could not logically have had any relation to the killing of Jacqueline Dickens.

Defense counsel charged that this testimony about the defendant's statement did not comport with what Dr. Kunev had told him in an interview conducted after the trial had begun but prior to his testimony. In the interview, Kunev, according to counsel, indicated that he understood Byers to have been describing a conversation with his wife that took place in St. Elizabeths. Counsel considered this of little significance since Byers had told the St. Elizabeths staff about his spells at his very first interview, before Mrs. Byers had visited him. In voir dire testimony, Dr. Kunev vacillated about his understanding of precisely when this conversation between Byers and his wife took place. He ultimately concluded, and testified to the jury, that his best recollection of this critical timing question was that Byers had had this conversation with his wife "about the time" that he went to St. Elizabeths.

Kunev conceded that he did not record this comment in his contemporaneous notes of the interview and that he did not include it in his report to the court. In addition, there was no evidence that he passed this information on to the doctors who actually participated in the staff conference. The official hospital report makes no mention of any statement made by Byers regarding the fabrication of his insanity defense.

In explaining this curious commission, Dr. Kunev stated that he did not consider the statement significant because he was only concerned with Byers' state of mind at the time of the offense. Dr. Kunev explained, "This being suggested by his wife, I didn't consider it important . . . It was not his thinking." Even after Dr. Kunev received the St. Elizabeths report, which relied on "roots" or "spells" as a basis for its opinion of nonresponsibility, he still did not consider the statement significant. Since the statement was irrelevant to the formation of his expert opinion, he explained, he simply excluded it from his report.

Although the psychiatric expert seemed to attach little value to Byers' statement, the court, the prosecutor, and, in turn, the jury were of a different opinion. The trial judge noted that it would "take a great deal of the wind out of the defendant's sails" and "perhaps will torpedo the [defendant] out of the water" that it could be "devastating"; and, if believed, it would help the prosecution "overcome a significant hurdle." The court nevertheless admitted the testimony. The prosecution's summation was devoted almost exclusively to this "critical thing" in the case.

Byers was convicted of the lesser included offense of second degree murder and of two weapons offenses which are not challenged in the instant appeal. His conviction was upheld in a per curiam judgment order over my dissent on December 24, 1980. After granting rehearing en banc, this court, on May 19, 1983, issued yet another judgment order, affirming Byers' conviction and noting that opinions would follow. On Jan. 9, 1984, the Supreme Court denied certiorari without the benefit of the court's opinions which issue today.

II. APPLICATION OF THE FIFTH AMENDMENT TO COURT-ORDERED INSANITY EXAMINATION

The Fifth Amendment bars compulsory self-incrimination in "any criminal case." It is clear, and the plurality agrees, that the privilege against self-incrimination has presumptive application in criminal cases where sanity is the only issue in dispute. It is clear as well that the values underlying the privilege against self-incrimination are uniquely threatened by the compelled psychiatric examination as it is presently administered. The plurality concedes that the traditional rationales for excluding the compelled examination from the protections of the Fifth Amendment are mere "devices" and do not withstand analysis. Rather than rely upon such artifice, the plurality instead contrives a controversy. It assumes incorrectly that protection of the right requires sacrifice of important state interests. The plurality then denies the privilege in the name of "fundamental fairness." I cannot accept the plurality's needless balancing away of this essential privilege.

A. Insanity and Incrimination

The Fifth Amendment guarantees that the compelled testimonial statements of the accused shall not be used to incriminate him in any criminal case. Psychiatric evidence from court-ordered examinations would clearly seem to fall within the literal terms of the privilege. The statements are compelled from the defendant; they are actual communications; and they are used to defeat an insanity defense and thus secure a criminal conviction. Courts nevertheless have historically refused to extend the privilege to court-ordered examinations, reasoning either that psychiatric evidence is not testimonial or that statements offered only on insanity are not incriminating. As the plurality points out, both of these arguments are unsound and both were cast into grave doubt by the Supreme Court's decision in Estelle v. Smith.

1. The Real vs. Testimonial Evidence Distinction

The privilege against self-incrimination is not violated every time the government compels the criminal defendant to provide incriminating evidence. The Supreme Court has found that the defendant may be required to take part in a lineup, to speak for voice identification, to submit to a blood test, and to give handwriting exemplars. These practices were held not to violate the privilege because they secure "real" as opposed to "testimonial" or "communicative" evidence. The Fifth Amendment is only implicated when the state compels active, conscious communication from the defendant.

The products of psychiatric examinations fall along the entire continuum from real to testimonial evidence. On one end of the spectrum are the clearly physical parts of the examination: x-rays; blood and urine tests; and electro-encephalograms. Standardized psychological tests, which probe patterns of association, require vocal responses and more active cooperation from the individual examined. The interview instant case falls squarely at the testimonial end of the spectrum.

A number of courts have analogized this interview portion to the physical part of the psychiatric examination. In this view, statements are elicited not for their substantive meaning, but rather to allow the psychiatrist to discern patterns of association and to divine subconscious significance. The defendant's words, it is argued, are mere symbols, communicating a wholly separate code of meaning. While some statements are used purely as diagnostic inputs, others are used to establish the truth of the matter asserted. When a statement is used in the latter fashion, it is clearly testimonial and within the scope of Fifth Amendment protection. In Estelle v. Smith, the Supreme Court drew this distinction between uses of statements made to psychiatrists. The Court held that "[t]he Fifth Amendment privilege, therefore, is directly involved here because the state used as evidence against respondent the substance of his disclosures during the pretrial psychiatric examination." Similarly, in the instant case, Dr. Kunev viewed Byers' purported admission as significant solely for its substantive meaning.

2. The Factual vs. Legal Guilt Distinction

Courts of appeals are virtually unanimous in holding that the admission of psychiatric testimony concerning statements made in a compelled examination on the issue of the acts reus, or "factual" guilt, is "constitutionally forbidden." The dispute has centered on whether testimony offered only on the issue of insanity is incriminating for Fifth Amendment purposes. A number of courts have held that such testimony is admissible because once factual guilt is established at trial, the accused is already incriminated and the privilege is exhausted. Here again, simple logic and the Supreme Court's decision in Smith discredit the rationale offered to deny Fifth Amendment protection.

First, sanity is a condition of criminal guilt. Except in the case of strict liability offenses, the government must prove not only that the defendant committed the acts charged, but also that he had the requisite mental state when he committed the acts. Whatever the burden of proof, the insanity defense remains inseparable from the concept of culpable mental state. In the words of Mr. Justice Frankfurter's oft-quoted maxim, "a muscular contraction resulting in a homicide does not constitute murder"; an admission that one has done the act does not establish one's legal guilt.

Moreover, even if proof of the actus reus could be considered equivalent to a conviction, the privilege against self-incrimination would still apply. The Supreme Court has invoked the Fifth Amendment in post-conviction contexts in which the only issue was the criminal sanction to be apple. In Estelle v. Smith, the Court refused to distinguish between the guilt and sentencing phases of the accused's capital trial. The Court held that "the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites." In a trial in which the insanity defense is raised, what is at stake is a criminal sanction. Both imprisonment and commitment do, of course, involve a loss of liberty. But the fact that some form of sanction can be said to follow in any event does not limit the need for procedural safeguards. Commitment, which follows upon a verdict of not guilty by reason of insanity, is premised on the need for treatment, rather than punishment. The verdict is crucial to the moral basis for confinement.

B. Values Underlying the Privilege

Based upon these considerations, I am forced to conclude that the privilege against self-incrimination applies in a criminal trial on the issue of sanity, whether such a trial is conceived of as a determination of guilt or of sanction. This conclusion is reinforced, in my judgment, by consideration of the values that underlie the Fifth Amendment privilege against self-incrimination. The court-ordered psychiatric examination, as it was administered in Billy Byers' case, implicates all of the fundamental values that lie at the heart of the Fifth Amendment.

In Murphy v. Waterfront Commission, Mr. Justice Goldberg, writing for the Court, set out the "fundamental values" and "noble aspirations" which underlie the privilege against self-incrimination:

our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance . . . by requiring the government in its contest with the individual to shoulder the entire load . . ."; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life"; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often a "protection to the innocent."

The court-ordered psychiatric examination, as it is now conducted, poses a grave threat to each of the values enunciated by the Court.

1. Privacy Rights

The privilege is designed to prevent the state from delving into the private sanctum of the human mind. It "reflect[s] the concern of our society for the right of each individual to be let alone." Its foundation "is the respect a government — state or federal — must accord to the dignity and integrity of its citizens."

The compelled psychiatric examination significantly intrudes into the "private enclave" of the human personality. The very goal of the examination is to discover and to analyze the intricacies of the individual's thought processes. The psychiatrist seeks to uncover aspects of the personality which the individual ordinarily does not reveal to others and which he may not consciously perceive. The information elicited — thoughts, dreams, fantasies, anxieties — is often that which the conscious mind tries to repress. The articulation of these previously hidden thoughts may be profoundly threatening to the individual. Far more than the police interrogation, which seeks objective facts of a crime, the psychiatric examination probes the core of the "inviolab[le] . . . human personality."

2. Fear of Inhumane Treatment and Abuses

The privilege is also designed to ensure that the state has no incentive to use coercive tactics in extracting confessions. In Miranda v. Arizona, the Supreme Court held that incommunicado police interrogations were "inherently coercive" and therefore violative of the Fifth Amendment privilege against self-incrimination. The Court emphasized that it was guarding against the risk of coercion that "is psychologically rather than physically oriented." It focused specifically on a number of police practices that contributed to the psychologically oppressive atmosphere: isolation of the accused, removal of the accused from familiar surroundings, and the interrogator's feigned friendliness and concern toward the accused. The Court stated: "An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to . . . techniques of persuasion . . . cannot be otherwise than under compulsion to speak."

The compelled psychiatric examination is, at the very least, as "inherently coercive" as the custodial police interrogation proscribed in Miranda. Like the custodial interrogation, the court-ordered examination requires the defendant to submit to government inquiry directed toward issues that will be contested at trial. The examination often takes place over a period of weeks in the "unfamiliar surroundings" of a government institution far from the defendant's community. During this stay, the defendant is under the total control of his examiners. They control what he does, when he eats, when he sleeps, and whether he is to be given psychotropic drugs. A series of examinations, some with a single psychiatrist and others with the entire staff, are conducted entirely in secret.

The government psychiatrist who conducts the exam is a complex and threatening adversary. Some government psychiatrists may use trickery to gain information. Some may consciously deceive defendants about their true role. Some may slant their diagnoses to suit the prosecution's wishes. In the main, however, the problem is not bad faith. Rather, the difficulty is inherent in the relationship between the institutional psychiatrist and the defendant-patient.

The government psychiatrist is armed with the same technical expertise as the private psychiatrist. He is trained to gain the confidence of a patient. As a medical doctor, the psychiatrist is conceived of as a healer, a participant in a voluntary therapeutic alliance directed to the patient's benefit. Unlike the policeman, whose goals and methods engender wariness in the defendant, the government psychiatrist in the state hospital engenders trust. But this trust is unwarranted. The psychiatrist's aim is diagnosis, not therapy. His primary commitment is to his institution, not to his patient. Given these concerns, I must conclude that the court-ordered psychiatrist examination poses a threat of coercion similar to that in the interrogation deemed unconstitutional in Miranda.

In Estelle v. Smith, the Supreme Court drew exactly this parallel between police custodial interrogation and the pretrial psychiatric examination. Noting that Miranda required safeguards to combat the "inherently compelling pressures" of police interrogation, the Court held:

The considerations calling for the accused to be warned prior to custodial interrogation apply with no less force to the pretrial psychiatric examination at issue here. . . . During the psychiatric evaluation, respondent assuredly was "faced with a phase of the adversary system" and "was not in the presence of a person acting solely in his interest."

3. "Cruel Trilemma"

As Judge Frank wrote, "[to] put an individual . . . in a position where his natural instincts and personal interests dictate that he should lie . . . and then punish him for lying is . . . intolerable." The Fifth Amendment privilege allows a third option, silence, which avoids the "cruel trilemma" of self-accusation, contempt, or perjury.

The compelled psychiatric examination forces the accused into precisely that situation which the privilege is designed to prevent. Most defendants will realize that what they say will significantly affect the likelihood of a successful insanity defense. The pressure on defendants to lie or to feign what they conceive of as insane symptoms will be intense, even for those whose insanity defenses are legitimate. Even the truly mentally ill person is likely to have some stereotyped conception of what distinguishes sanity from insanity and to manifest symptoms of the latter. The defendant cannot alleviate this pressure to dissemble by refusing to cooperate. Such a refusal is likely to precipitate sanctions which, in effect, forfeit the accused's insanity defense. Thus under current law, the defendant is faced with an analogous cruel trilemma: confessing responsibility, feigning insanity or forfeiting the affirmative defense.

4. Distrust of Self-Deprecatory Statements

The Fifth Amendment demands "distrust of self-deprecatory statements." This distrust stems from an awareness that individuals are unlikely to incur freely the sanction of a criminal conviction. Courts are alert to the risk that confessions may be coerced, forced on highly suggestible defendants, or simply fabricated by the interrogator. Because questions about reliability necessarily surround every confession, and because the confession is such powerful evidence, courts demand that confessions be corroborated by "substantial independent evidence which would tend to establish the trustworthiness of the statement."

This constitutional concern for trustworthiness is engaged when an accused asserting an insanity defense makes a statement in a mental hospital about whether he was indeed mentally ill at the time of the offense. A defendant who has chosen to raise the defense is unlikely to make an admission that undermines it. In the absence of a recording of the interview or a corroborating witness, the unverifiable testimony of a psychiatrist about statements made to him months or years before is highly untrustworthy.

5. "Fair State-Individual Balance"

The privilege against self-incrimination also seeks to safeguard a fair balance of advantages in the criminal process. As Mr. Justice Stewart noted, the privilege is directed "to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution `shoulder the entire load.'" By requiring the state to produce independent evidence of guilt, the privilege discourages oppressive tactics and encourages the production of more trustworthy evidence.

The compelled psychiatric examination threatens this structural integrity of our accusatorial system. The examination compels the defendant to be the prime source of the government's evidence. Because the psychiatrist is purportedly interpreting and relating the defendant's own statements, his testimony is likely to be accorded substantial weight. Given the availability of such evidence, the state is unlikely to seek out other, perhaps more probative evidence of the defendant's mental state. Thus the fair state-individual balance is subverted; the state has an incentive to ignore independent evidence and rely on the "cruel, simple expedient of compelling [testimony from the defendant's] . . . own mouth."

C. The Plurality Approach

Given that the examination yields testimonial evidence on the issue of guilt and that it threatens each of the privilege's underlying values, I cannot but conclude that the Fifth Amendment privilege against self-incrimination applies to the court-ordered psychiatric examination. The plurality disputes this conclusion, arguing simply that it would be unfair to allow a criminal defendant who presents expert testimony on the issue of sanity to refuse to undergo a state-requested examination.

I believe that the plurality's approach rests on a straw man. The plurality considers only a single remedy — blanket refusal to undergo the examination — to enforce the right and then rejects the right because the state cannot afford the remedy. It is clear that other, less severe, safeguards can be employed which permit the examination while still protecting the values that underlie the privilege.

1. Alternative Safeguards

The inquiry into whether a right exists is prior to and separate from consideration of the means of enforcing that right. If the right exists and the sole means of its enforcement conflicts with important state interests, then the court must resolve the difficult dilemma. In this case, however, safeguarding the right does not require any sacrifice of important state interests. Many intermediate safeguards are available which protect the values underlying the privilege against self-incrimination while still permitting the purportedly necessary compelled examination. Since I believe that the Fifth Amendment is applicable and can be safeguarded without prejudice to the state, I can see no reason why these protections should not apply. Even if, as the plurality argues, it is the scope of the remedy that determines the existence of the right, these narrower protections should still be afforded to all defendants asserting the insanity defense.

a. Recording of all interviews

Rational accommodation of the Fifth Amendment values implicated here can begin with the recording of all psychiatric interviews. The very presence of a tape would help ensure that overreaching does not take place. It would quiet our concern that psychiatrists might manipulate or intimidate the defendant in an in camera interview. A complete record would also help inform the court's judgment regarding the voluntariness and reliability of the defendant's statement. Self-deprecatory statements are distrusted because of the possibility of coercion or dishonesty on the part of the interrogator. A recording of the examination would mitigate these causes for distrust.

The government and one of the amici suggest that even this alternative safeguard may prove disruptive or "inhibiting" to the clinical interview. As I read the empirical evidence, however, it is decidedly mixed (as well as sparse). Indeed, there is a strong argument that, to the extent that recording frees the interviewer from constant note-taking, its net effect may be to improve the free flow of communication. In addition, the defendant may well be less apprehensive about the examination if he knows that his lawyer will have an opportunity to monitor the fairness and accuracy of the interviewer.

To the extent that distortions do occur, they seem to vary significantly with the type of subject and the nature of the clinical setting. Recent studies have found that concerns about distortion are "probably overstated" and that "experienced therapists do not feel that the presence of video substantially alters their style." In addition, much of the concern in the professional literature with the distorting effects of recording focuses on the response of the interviewer rather than the subject. Because persons who conduct court-ordered clinical interviews are often required to relate the events of the interview under oath and are subject to vigorous cross-examination, the additional "inhibition" due to recording, while slight, may even be salutary.

The studies tending to show such distortions, moreover, were all conducted in the context of voluntary, trusting therapeutic relationships. I dare to venture that a criminal defendant subject to a court-ordered clinical interview, knowing that none of what he says will be kept in confidence in any event, will be less likely to be "inhibited" by the presence of a recording device than a patient or client who fears an intrusion into an otherwise private and trusting relationship. A recent study notes that "[t]he wish to protect the sanctity of the therapeutic relationship is a major force opposing the use of [recording]." No such relationship exists in the court-ordered examination.

Recording, moreover, is already an accepted and commonly-used tool of the mental health professions. Many mental health professionals tape sessions with their patients or clients in order to come to more confident and thorough conclusions. Recording is also used to facilitate training and research. The general acceptance of recording comes in the face of its risks, but in the belief that its utility usually outweighs those risks. Indeed, an author of the only study cited by the American Psychiatric Association in support of the proposition that recording has an "inhibiting" effect characterized the question in a later article as one of "costbenefit." He concluded that, although caution may need to be exercised in some cases, "[w]hen the research discussed in this article is weighed against the many advantages of recording, . . . it seems foolish to conclude that we [ought to] stop recording." As a court concerned with upholding the constitutional rights of a defendant — and with mitigating the effects of other "distortions" that may dilute those rights and that we know to occur in the absence of recording — our cost-benefit equation seems even more clear.

In light of the preceding discussion, I would hold that the fruits of court-ordered clinical examinations should not be admitted at trial unless defendant's counsel is provided with a full and accurate record of the clinical interview. The plurality concedes that recording psychiatric interviews "may be a good idea," but concludes that it is not required by the Constitution. I fail to see, however, how the plurality can make the policy judgment that it would be unfair to the government to permit a defendant to refuse to cooperate, and then fail to accord lesser protections which serve Fifth Amendment values without compromising the government's interests. The plurality has rejected the constitutional right because one means of enforcement is unfair, and then rejected presumably fairer means because the Constitution doesn't require them.

b. Exclusion of defendant's statements irrelevant to diagnosis

Although the Constitution permits the compelled examination, the Fifth Amendment does impose limitations upon the use of the defendant's statement to the government's doctor. Under current law, for example, the Fifth Amendment protects the defendant from prosecutorial use of statements made to the government psychiatrist to prove factual guilt or future dangerousness. I would extend that protection to statements made by the defendant to the psychiatrist which are not integral to his process of diagnosis.

Psychiatric examinations are authorized for the limited purpose of expert evaluation of the defendant's mental state. A psychiatrist may need to relate certain statements of the defendant which were essential to his evaluation. Byers' confession of sanity, however, was irrelevant to the expert evaluation. Dr. Kunev himself testified that he made no use of the critical admission in forming his own expert opinion that the defendant was sane. Without any testimony concerning defendant's alleged admission, Dr. Kunev could have given the jury a full presentation of his expert opinion of Byers' mental state.

By simply describing Byers' admission that his wife had belatedly suggested the factual predicate for his insanity defense, Dr. Kunev was expressing no expert opinion. Simple logic, not expertise, dictates that if the basis for the defense arises after the act is committed, then it cannot excuse the offense. The statement supported no expert inference; rather, it was presented as a statement of historical fact.

If the necessity of remedying the imbalance of expert testimony justifies suspension of the privilege against self-incrimination, then only "expert testimony," not simply testimony by an "expert" should be admitted. The Fifth Amendment's concerns for reliability and for preventing "the cruel, simple expedient of forcing" a confession of criminal responsibility from the accused's "own lips" dictated the exclusion of this self-condemnatory statement on the issue of mental state.

c. Provision of Miranda- type warnings

The court-ordered examination is a confusing and ambiguous interaction for the defendant. He is a patient in a hospital. He daily encounters a variety of solicitous, confidence-inspiring mental health professionals. But neither the institution nor its professionals are devoted to making him well. The government hospital presents a therapeutic facade beneath which exists a real adversity of interests.

In my view, the defendant has a right to be alerted to the realities of this inherently deceptive situation, wherein "pressures which work to undermine the individual's will to resist" are not apparent. If we are going to compel a defendant to talk to a professional who may testify against him at trial, we must, at the very least, inform him of that fact.

Mental health professional organizations believe that there is an ethical obligation to inform a defendant in advance of the interviewer's conflictual roles and of the absence of confidentiality. In view of the Fifth Amendment's concern for voluntariness, I believe that there is a constitutional obligation as well.

2. Other Considerations

In arriving at its conclusion, the plurality, in my view, misapplies its own test. If, as the plurality asserts, the cost of the safeguard determines whether the right exists, then clearly a defendant subject to a court-ordered examination should be afforded the relatively costless Fifth Amendment protections that I suggest. I must also, however, challenge the plurality test itself. In my view, whether an individual has a right is a separate question from whether countervailing considerations are sufficient to preclude its exercise. The plurality implies that the Fifth Amendment has a built-in principle of prudence. It notes that its policy of denying Fifth Amendment protection reflects "the need to maintain a fair state-individual balance (one of the values underlying the Fifth Amendment . . .)."

I cannot agree with the plurality's suggestion that the privilege is self-limiting. The privilege is premised on an a priori belief that a "fair state-individual balance" is one in which incriminating testimony is not compelled. The value underlies the privilege; it does not condition its application.

I believe that when a court considers denying the privilege in a situation where it would otherwise apply, it must acknowledge that the source of the limitation is not the Fifth Amendment itself. Rather, the court must admit that it is weighing an important individual right against a state interest — not rooted in the privilege — that is incompatible with the assertion of that right. In striking that balance, the court must be "ever mindful of its critical role as the protector of the citizen." The court must also make certain that the government interest is truly fundamental and that its accommodation is irreconcilable with meaningful exercise of the right. While I firmly believe that no such balancing test needed to be conducted in this case, I feel that the balancing test that the plurality did conduct failed to articulate and consider the serious interests at stake.

The plurality asserts that the suggested safeguards go beyond the scope of the privilege against self-incrimination and "import . . . unrelated . . . constitutional guarantees," chiefly from the due process clause. Prior to the major Fifth Amendment cases of the 1960's, the Supreme Court did deal with the issues of trustworthiness and voluntariness of confessions under the due process clause. During the 1960's, however, the Court explicitly construed the privilege against self-incrimination to include concerns that had previously been treated under the rubric of due process. In Murphy v. Waterfront Commission, Mr. Justice Goldberg wrote for the Court that the application of the privilege "must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes." Three terms later, Mr. Chief Justice Warren, writing for the Court in Miranda, explicitly endorsed the Murphy Court's construction of the privilege and acknowledged its novelty:

As a "noble principle often transcends its origins," the privilege has come rightfully to be recognized in part as an individual's substantive right, a "right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). We have recently noted that the privilege against self-incrimination — the essential mainstay of our adversary system — is founded on a complex of values, Murphy v. Waterfront Comm'n, 378 U.S. 52, 55-57, n. 5, 84 S.Ct. 1594, 1596-1597 n. 5, 12 L.Ed.2d 678 (1964); Tehan v. Shott, 382 U.S. 406, 414-415, n. 12, 86 S.Ct. 459, 464-465 n. 12, 15 L.Ed.2d 453 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227, 235-238, 60 S.Ct. 472, 476-477, 84 L.Ed. 716 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 658 (1964).

As the Miranda Court noted, the privilege "has always been `as broad as the mischief against which it seeks to guard.'" The forensic examination presents a clear risk of the type of "mischief" that the Court has declared anathema to the policies of the privilege. The suggested safeguards are closely tailored to remedy that mischief. Tape recording, for example, not only enhances trustworthiness, but also protects against the central evil to which Miranda was directed: the risk of coercion and deception in extracting statements from a criminal defendant.

The privilege against self-incrimination applies to all incriminating compelled testimonial communications. Statements made during a court-ordered forensic examination clearly fall within the literal terms of the privilege. The plurality denies application of the privilege on the ground that refusal to undergo the examination would deprive the government of necessary information. The safeguards described above, however, allow the government to obtain what it needs while furthering the core purposes of the privilege. The plurality's dismissal of these safeguards as "exotic" reflects a crabbed construction of the privilege wholly at odds with the unambiguous pronouncements of the Supreme Court. As the Court has said of the privilege, "[t]his constitutional protection must not be interpreted in a hostile or niggardly spirit." In constructing a false dichotomy between a completely unmonitored psychiatric interrogation, on the one hand, and the absence of any compelled evaluation on the other, this court has manifestly failed to heed the Supreme Court's precepts.

III. THE COURT-ORDERED CLINICAL INTERVIEW AND THE SIXTH AMENDMENT

The Sixth Amendment guarantees an accused the right to the assistance of counsel in connection with any "critical stage" of the proceedings against him. A "critical stage" is any (1) pretrial "confrontation" with the government (2) occurring at or after the start of "adversary judicial proceedings," (3) for which the assistance of counsel is necessary to prevent "potential prejudice to defendant's rights." It is undisputed in this case that the second of these three requirements — the onset of adversary judicial proceedings — has been met. I consider the other two requirements in turn.

A. "Confrontation"

The Sixth Amendment right to the assistance of counsel in connection with events before trial is an extension of the right to counsel at trial. Its application is therefore limited to events constituting an actual "confrontation" between the accused and the state, rather than to all activities undertaken by the state between the start of adversary proceedings and the time of trial. There is no requirement, however, that "confrontations" be themselves formal proceedings. Indeed, lineups and unwitting conversations with government informants are two quintessential examples of informal but nevertheless crucial "confrontations" between the accused and the state.

A court-ordered clinical interview is clearly a "confrontation" in the sense that the accused is present and is the object of the inquiry. The plurality attempts to delineate far more restrictive criteria for a confrontation, and then exclude the psychiatric examination from Sixth Amendment protections for failing to meet those criteria. In my view, the plurality's test for a Sixth Amendment "confrontation" is unsupported by precedent. Moreover, even under the plurality's standard, the compelled psychiatric examination would still constitute a "confrontation" for purposes of the Sixth Amendment.

In United States v. Wade, the Supreme Court determined that a defendant had a Sixth Amendment right to assistance of counsel at a police lineup conducted to elicit identification evidence. The Court noted that the presence of counsel was required "to protect Wade's most basic right as a criminal defendant — his right to a fair trial at which the witnesses against him might be meaningfully cross-examined." The Court observed that a lineup was an inherently suggestive procedure and that a defendant would be unable to perceive the suggestive or distorting influences and reconstruct them at trial.

In United States v. Ash, the Court refused to extend the Sixth Amendment guarantees of Wade to a photographic identification session, reasoning that such an identification was not a "confrontation." The difference between Wade and Ash, which made one a confrontation and the other not, is apparent: in Wade, the accused was present, and in Ash, he was not.

The plurality construes Ash as a repudiation of that portion of Wade which bases the Sixth Amendment right on the ground that counsel will be able to reconstruct the interaction at trial far more effectively than will a criminal defendant. Ash, in my view, excludes reconstruction at trial as the sole ground for extending Sixth Amendment protection. Ash does, however, construe Wade as conferring a right to the assistance of counsel when the accused is subject to an encounter with the state that presents the possibility of suggestive influence which the accused will be unable to articulate at trial. The Court in Ash observed:

The function of counsel in rendering "Assistance" continued at the lineup under consideration in Wade and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused's memory might be dimmed by "emotional tension," that the accused's credibility at trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against self-incrimination. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel.

Ash stands for the proposition that there is no general right for counsel to attend pretrial proceedings as an observer. Where the accused is present at the proceeding, however, it is a confrontation and counsel is permitted to remedy the defendant's comparative disadvantage as an observer. As Mr. Justice Brennan noted in his dissent in Ash:

There is something ironic about the Court's conclusion that a pretrial lineup identification is a "critical stage" of the prosecution because counsel's presence can help to compensate for the accused's deficiencies as an observer, but that a pretrial photographic identification is not a "critical stage" of the prosecution because the accused is not able to observe at all.

The plurality, however, views Ash as limiting the Sixth Amendment to those "confrontations" in which the accused is confronted " either with the need to make a decision requiring distinctively legal advice . . . or with the need to defend himself against the direct onslaught of the prosecutor." Such a construction, however, would exclude from protection that which the Court explicitly said would be included: a proceeding where counsel was needed to reconstruct suggestive events.

United States v. Henry, decided seven years after Ash, makes clear that the plurality's test for a "confrontation," if it were ever valid, is valid no longer. In Henry, while the defendant was in jail awaiting trial, government agents contacted an inmate in defendant's cellblock and instructed him to be alert to any statement made by the defendant, but not to initiate any conversations. The Court reasoned that by intentionally creating a situation likely to induce the defendant to make incriminating statements, the government had created a postindictment confrontation which was a "critical stage." The Court found a violation of the defendant's right to counsel even though no legal advice was required and there was no "direct onslaught of the prosecutor." The jailhouse informant was in no way an "expert adversary"; he was merely an individual confronting the defendant in an interaction instigated by the government which was likely to prove harmful to the defendant at trial.

That Henry broadened the test for a confrontation in Ash was made clear in Justice Rehnquist's dissent in Henry. His dissent is premised in part on a view that the Court in Henry had moved away from what he viewed as the core functions of counsel:

[M]ore recently this Court has again observed that the concerns underlying the Sixth Amendment right to counsel are to provide aid to the layman in arguing the law and in coping with intricate legal procedure. United States v. Ash, 413 U.S. 300, 307-308 [ 93 S.Ct. 2568, 2572-2573, 37 L.Ed.2d 619] (1973), and to minimize the imbalance in the adversary system that otherwise resulted with the creation of the professional prosecuting official. Thus, in examining whether a stage of the proceedings is a "critical" one at which the accused is entitled to legal representation it is important to recognize that the theoretical foundation of the Sixth Amendment right to counsel is based on the traditional role of an attorney as a legal expert and strategist.

For good or ill, Henry clearly extends protection to situations beyond those in which the accused is confronted by the intricacies of legal procedure or by his expert adversary.

Even if the criteria for Sixth Amendment applicability were limited to those two suggested by the plurality, the compelled psychiatric examination would still, in my view, fulfill one of these criteria. The psychiatrists and other behavioral experts who conduct court-ordered clinical interviews are clearly professional adversaries. They are experts employed by the government. They meet with the accused after he has been charged with a crime and while he is in criminal custody. Their reports are transmitted to the government and may be used by it to help prove the defendant's guilt. They routinely testify on behalf of the government. Even if we assume their complete objectivity, their interest in evaluating the defendant's mental state can clearly be at odds with his interest in being acquitted.

Whatever doubts there once may have been on this point are, I believe, completely eliminated by Estelle v. Smith. In Smith, the Court unequivocally held that the competency examination at issue "proved to be a `critical stage' of the aggregate proceedings against respondent," in connection with which he was entitled to the assistance of counsel. This holding logically required the Court to find both (a) that the examination was a "confrontation" and (b) that the assistance of counsel was necessary to preserve the defendant's rights. The Smith decision's first finding clearly controls in this case. With regard to whether a clinical interview constitutes a "confrontation," I see no relevant distinction between defendants who plead insanity and those who do not. Indeed, although the "confrontation" finding was only implicit in the Smith decision's Sixth Amendment discussion, I find strikingly relevant to the instant issue the portion of Smith's Fifth Amendment discussion in which the Court spoke explicitly about the adversary nature of a clinical examination. The Court stated that, to the extent that an examination aids the prosecution, it is a species of "official interrogation" in which the role of the interviewer is "essentially like that of an agent of the State." It then concluded what should also be obvious in this case: the accused subject to such an examination "assuredly was `faced with a phase of the adversary system' and was `not in the presence of [a] perso[n] acting solely in his interest.'"

In the plurality view, the psychiatrist is not an adversary because at the time of the examination he has not yet decided to testify for the prosecution and is therefore neutral. Witnesses for the state, however, are often neutral at the time of their contact with the defendant and only later decide to aid the state. Indeed, police officers and prosecutors should be neutral when they first confront the defendant. Sides are taken on the basis of the information gathered in the interviews. It would clearly be senseless to withhold protection in situations likely to provide the substance of a prosecution witness' testimony and then confer protection once the information has been extracted and the neutral observer declares himself for the prosecution.

B. The Possibility of Prejudice

Once it is established that a stage of proceedings is a "confrontation," it is necessary to consider whether the absence of the assistance of counsel in connection with that confrontation will prejudice the defendant's rights in a way that cannot be remedied at trial. As the Court noted in Smith, quoting United States v. Wade:

It is central to the Sixth Amendment principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, where counsel's absence might derogate from the accused's right to a fair trial.

The specific reason for the Smith Court's finding that counsel's assistance was necessary does not control in this case. The Court focused in Smith on the need for counsel to preserve the accused's Fifth Amendment right not to undergo the examination. There are, however, independent reasons — grounded in previous Sixth Amendment decisions expressly relied upon by Smith — for requiring certain safeguards in connection with the clinical interview.

The Court in Smith cited ten cases in support of its right-to-counsel analysis. Of those ten cases, only one involved, like Smith itself, the protection of an attendant Fifth Amendment privilege against self-incrimination. Indeed, many of those cases upheld a defendant's right to the assistance of counsel while at the same time explicitly or implicitly determining that the confrontation at issue did not implicate Fifth Amendment concerns. The nine cases that did not rely on an attendant Fifth Amendment right rested their right-to-counsel analyses instead on one or another form of the more general proposition introduced above: a defendant is guaranteed the right to the assistance of counsel in connection with a pretrial confrontation whenever the lack of such assistance could seriously and irreparably prejudice his basic rights.

The most directly relevant of the Sixth Amendment cases cited in Estelle v. Smith is United States v. Wade. Having determined that requiring a defendant to participate in a lineup conducted to elicit identification evidence did not violate his privilege against self-incrimination, the Court went on to inquire whether the presence of counsel was necessary "to protect Wade's . . . right to a fair trial at which the witnesses against him might be meaningfully cross-examined." The Court explained that, with regard to

systematized or scientific analyzing of the accused's fingerprints, blood sample, clothing, hair, and the like[,] . . . [k]nowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial.

The Court concluded that lineups, however, pose a markedly different set of circumstances. It found inherent in the nature of lineups a serious risk that procedures might be employed that are intentionally or unintentionally suggestive and that might easily give rise to "miscarriage of justice from mistaken identification." The Court found, moreover, that the dangers inherent in lineups cannot adequately be met by skillful advocacy at trial. "[N]either witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. And if they were, it would likely be of scant benefit to the suspect since neither witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences." In addition, "[i]mproper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension which we might expect in one being confronted with potential accusers." The defense's resulting "inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive [the defendant] of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." The Court therefore required that, in the absence of waiver, the results of lineups not be admissible in court unless counsel was present as an expert observer capable of averting prejudice and assuring meaningful rebuttal and cross-examination at trial.

As Judge Wilkey has noted, the lineup is "a little drama," a complex event involving a variety of actors over an appreciable period of time. Like all theater, it is ephemeral; once completed, it leaves no record. What distinguishes the photographic identification in Ash from the lineup in Wade is the existence of an objective record. The raw material of the identification — the photographs — remain and can be presented at trial. The preservation of these immobile photographs ensures that any "unfairness can be demonstrated at trial from an actual comparisons of the photographs used." The lesson of Ash is that an objective record, which allows reconstruction at trial of suggestive influences, can serve as an adequate surrogate for the presence of counsel and thereby satisfy the requirements of the Sixth Amendment.

1. The Clinical Interview

It is obvious to me, merely on the face of the discussion in Wade, that a compelled clinical interview bears more resemblance for Sixth Amendment purposes to a lineup than to a fingerprint analysis or a photographic identification. I do not rest on my intuition, however, for I am convinced that any thorough analysis of the sort conducted in Wade itself must inevitably lead to the conclusion that court-ordered clinical interviews pose an even greater threat of prejudice to a defendant's right to a fair trial than do the lineups analyzed in Wade.

I do not base this conclusion merely on the oft-made observation that the nature of knowledge in the behavioral sciences is inexact and uncertain. Nor do I rely simply on the fact that psychiatrists and others who conduct clinical interviews often hold widely different theoretical positions and may be subject to personal and institutional biases. These limitations on the reliability of expert testimony in the behavioral sciences could presumably be the subject of effective cross-examination without the necessity for specific additional safeguards. Rather, I focus more narrowly on the specific concerns at work in Wade: the risk of distortion and the difficulty of factual reconstruction.

A typical psychiatric or other clinical interview is a complex event, in which the accused exhibits a host of subtle but important behaviors. The interviewer's task is to select from all those behaviors the ones that are particularly meaningful and to translate that set of observations into a clinical conclusion. As I suggested above, this process of translation could in theory be challenged by skillful cross-examination. Counsel could press the expert witness to detail the specific observations upon which the expert bases his or her conclusions. Counsel could then ask the expert precisely how he or she arrived from those observations to his or her conclusions. Armed with this information, counsel could attack the overall theoretical structure or specific criteria employed by the expert, or ask other witnesses how they would evaluate the same data.

The problem with this scenario, however, is that the expert cannot be a completely objective and reliable informant even with respect to the bare "facts" of the interview. The same intellectual presuppositions and personal and institutional biases that affect his or her evaluation of the data also affect his or her conscious or unconscious decisions regarding what sort of behavior to notice, remember, and record. And what is left out in that process may — in the minds of other equally competent behavioral scientists — cast serious doubt on the validity of the interviewer's conclusions. Perhaps more importantly, even those "facts" that the interviewer does perceive can easily be distorted by his or her presuppositions, expectations, and sheer random errors. All these effects — compounded by the normal deficiencies of human memory — necessarily become even more severe when the interviewer is asked to reconstruct the events of the interview in the charged atmosphere of a criminal trial.

The clinical interview poses yet another problem even more directly akin to the threat of suggestiveness identified in Wade: the interviewer not only may misperceive the behavior of the person being interviewed, but also may unintentionally determine that behavior. A clinical interview is more than a complex and subtle event; it is also a complex and subtle set of interactions between the interviewer and the accused. The interviewer asks certain questions rather than others. He or she follows up on certain responses and not others. He or she may be of the same race, sex, or class as the accused, or of a different race, sex, or class. Each of these often-subtle variations in the interviewer's character and behavior may have a profound effect on the responses offered by the person being interviewed Empirical research indicates that the results of even such ostensibly "objective" parts of the clinical interview as the IQ and Rorschach tests can be markedly influenced by the precise way in which the tests are administered.

It is exceedingly unlikely that a criminal defendant will be able to perceive and present at trial these complex and subtle distortions. The defendant, in all probability, will not be able to recall the wide-ranging, seemingly irrelevant questions put to him by the psychiatrist. His "memory might be dimmed by `emotional tension'" or impaired by a mental disability. Should the defendant wish to challenge the psychiatrist's testimony or claim unfairness, he would be forced to waive his privilege not to testify. The accused's word would then be pitted against that of a mental health professional, who will undoubtedly have far greater verbal skills, social status, and credibility in his professional domain.

The record in Byers' own case represents almost a caricature of these problems. Indeed, one commentator has already described the facts of this case as "illustrat[ive] of the vagaries of reconstructing the clinical evaluation and why counsel must be personally cognizant of the relationship between the evaluator and the defendant." Byers' alleged statements regarding his conversation with his wife were not mentioned in Dr. Kunev's written report. We do not know if they were recorded in his notes because those notes presumably were destroyed. Dr. Kunev's memory of Byers' exact words seems to have changed over time. And that change — amounting to perhaps one or two words — may have meant the difference between a trivial piece of information and a "critical thing" credibly alleged to have sent Byers' defense "tumbling right down to the ground."

We know, moreover, that Byers' comment about his conversation with his wife came after some pressing by Dr. Kunev. We do not know the nature or intensity of that pressure. We do not know if Dr. Kunev inadvertently engaged in the sort of behavior that could have led Byers to give a distorted or untrue response. In short, we do not know — and more importantly, the jury at Byers' trial could not know — whether these ostensibly crucial statements were made, what they meant, or whether they were reliable.

2. Conclusions

I do not presume to assess the precise significance of the phenomena I have described, nor do I intend to cast a disparaging light on the general utility of clinical interviews and expert testimony in helping juries decide the enormously difficult issue of criminal responsibility. I do conclude, however, that the phenomena I have described may pose a serious risk to the reliability of expert testimony in a significant number of cases. I also think it obvious that the threats to a fair trial posed by these effects are of the same type as those identified in United States v. Wade. If defense counsel had an accurate, complete record of the clinical interview he could, with the aid of his own experts, attempt to identify the distortions and interactions that may have affected the substance of the interviewer's reports and testimony. But such a complete, accurate record cannot, by virtue of the very effects I have described, be expected to be forthcoming from the interviewer. The accused, moreover, whatever his mental state, cannot be relied upon to fill in the gaps necessary for a complete and accurate assessment. It is therefore clear that — in the absence of safeguards that will afford to counsel the ability effectively to reconstruct at trial the events of the clinical interview — counsel may be unable to detect distortions or to cross-examine meaningfully the government's expert and rebut his conclusions. The accused is therefore deprived of his right to the assistance of counsel in connection with that interview.

C. Safeguarding the Sixth Amendment Right

In addition to arguing either that compelled psychiatric interviews are not "confrontations" or that they do not pose the sorts of dangers addressed in Wade, the plurality maintains that a clinical interview cannot be a "critical stage" because the presence of counsel at such an interview would be unduly disruptive. The lesson of Smith and Ash, however, is that the actual presence of counsel may not be required at all "critical stages." In Ash, the existence of an objective record from the photographic identification made the actual presence of counsel unnecessary for meaningful reconstruction at trial. Smith invites us to inquire first into whether a pretrial confrontation implicates Sixth Amendment values to the point that it should be considered a "critical stage," and only then to inquire into the particular safeguards that may be necessary to protect those values. Having conducted the former inquiry and concluded that the compelled interview is a "critical stage," I consider the question of safeguards below.

D. The Constitutional Safeguard

Lawyers play a variety of roles in helping defendants through the various pretrial confrontations that the courts have recognized as "critical stages" of the prosecution. Depending on the context, the "assistance of counsel" may consist in advocating the defendant's cause, advising the defendant, or monitoring a particular event to help insure a fair confrontation at trial. I assume that, whatever the context, the constitutional safeguard of first resort is the physical presence of counsel during the actual course of the confrontation. Nevertheless, there may in some very limited circumstances be powerful arguments against such a presence, and the Constitution should not be read to take an "all-or-nothing" approach to the possibility of alternative safeguards.

In Estelle v. Smith, the Court was concerned with the need to allow counsel to advise the accused with respect to the self-incrimination risks inherent in his pretrial competency examination. The examination itself was the "critical stage" that triggered the right to the assistance of counsel. But the Court expressed the fear that the presence of counsel during the clinical interview "could contribute little and might seriously disrupt the examination." It therefore held that the particular sort of assistance that needed to be rendered by counsel required not counsel's presence at the examination but "the guiding hand of counsel" before the examination.

In this opinion I have focused on the constitutionally required need to have counsel monitor the court-ordered clinical interview. The essence of this role is to equip counsel with the ability "effectively to reconstruct at trial" the possible distortions and suggestive influences present in the interview. If the presence of counsel were the only means to achieve that goal, we would — in light of both Smith and earlier cases — be left with a difficult dilemma. But fortunately there are alternative safeguards that are less disruptive (and perhaps even more effective) than the actual presence of counsel. A complete tape recording or videotape of the interview would provide counsel with exactly the sort of objective and precise record that, as I have previously discussed, is often a prerequisite to detection of distortions and to effective cross-examination or rebuttal at trial. As discussed above, such a taped record would facilitate constitutional aims without impairing the interview process itself.

In light of the above discussion, I would hold that, in the absence of waiver, the fruits of court-ordered clinical interviews conducted after the initiation of "adversary judicial proceedings" should not be admitted at trial unless counsel was either allowed to be present or was provided with a complete and accurate taped record of the interview. Because the testimony of the government experts was admitted in this case without such a record having been provided, Billy Byers was deprived of his right to the assistance of counsel under the Sixth Amendment.

IV. THE SUPERVISORY POWER AND SAFEGUARDS TO PROMOTE A RELIABLE JUDICIAL PROCESS

The plurality concedes that recording clinical interviews "may be a good idea," but argues that such a procedure should not be required because it is not constitutionally compelled. In my view, this court must evaluate the efficacy of recording on non-constitutional grounds as well. It is well established that federal appellate courts have "supervisory authority over the administration of criminal justice in the federal courts." It is the obligation of this court to consider "good ideas" that protect the integrity and reliability of the truth-finding process.

The supervisory power does not confer on "the federal judiciary a `chancellor's foot' veto over law enforcement practices of which it does not approve." It is rather a limited and traditional power of the judiciary "to adopt measures to regulate and improve the quality of the judicial process." Oversight of the administration of the insanity defense falls squarely within the recognized contours of the supervisory power.

Since we have the inherent power to order psychiatric examinations, we have a corresponding duty to mandate safeguards which guarantee that the examination will be fair to the accused and will yield reliable results. Many appellate courts have recognized the power of trial courts to order such protections as the presence of counsel or the recording of interviews. Fifteen years ago, in Thornton v. Corcoran, this court suggested that "our responsibility for the administration of the insanity defense . . . may require the exercise of our supervisory power" to compel taping of the staff conference.

As courts have long recognized, a trial court's obligation to the defendant and to the judicial process cannot end with the signing of the commitment order. Having exercised its authority to send a defendant to a government-run, custodial mental hospital, the court must order procedures which protect the accused's rights and which assure reliable and verifiable results. In the absence of such procedures, evidence from the interview should not be admitted.

The plurality constructs a false dilemma in asserting that exclusion of Dr. Kunev's statements requires a choice between excluding probative evidence and protection of judicial integrity. Exercising our supervisory power in this case would not require such a difficult choice. Rather, we would be excluding evidence that both threatens judicial integrity and is highly unreliable. As a prospective requirement ordered pursuant to our supervisory power over the administration of the insanity defense, tape recording of psychiatric interviews would guarantee judicial integrity and evidentiary reliability without requiring exclusion of any evidence. Here again, the plurality contrives a controversy, while ignoring the safeguards that eliminate the need to choose between competing values.

The interview conducted in Byers' case perfectly illustrates the urgent need for the court to exercise its supervisory power over the compelled clinical interview. What Mr. Byers was reported to have said was interpreted as tantamount to a confession that he was mentally well at the time of the offense. Courts distrust confessions because it is unlikely that a criminal defendant will willingly inculpate himself. Hence, courts require that a confession be "well proved." Without any verifiable recording of the interview, however, the only possible "proof" is the unverifiable word of a psychiatrist testifying long after the event.

Assuming that Byers did make such a statement, we have no way of knowing, in the absence of a taped record, whether the statement made was voluntary. As discussed above, Byers was questioned by skilled professionals in the coercive atmosphere of a custodial prison mental hospital. Dr. Kunev admitted that he "pressed" Byers; we do not know whether the intensity of that pressure makes the voluntariness of the statement doubtful.

Finally, even if we accept that the statement was made and that it was voluntary, we do not know precisely what Byers said. Dr. Kunev testified that, according to Byers, Mrs. Byers told him about the roots, " about the time that he was admitted to St. Elizabeths." At various times, Dr. Kunev stated that this conversation occurred after admission to the hospital and on the way to the hospital. This imprecision, of course, was critical. If the statement had been made after admission to the hospital, it would have been irrelevant. Instead, the prosecution was able to capitalize on Dr. Kunev's failure of memory and to transform an ambiguous, unverifiable statement into the "critical thing" which "torpedo[ed] the [defendant] out of the water."

The plurality argues that it is "difficult to imagine a less auspicious case" for applying the supervisory power, relying on the emotional assertion that by excluding the evidence "we set a convicted murderer free." Both logically and practically, this statement is simply false. First, the exclusion of one expert's testimony does not deprive the prosecution of the only piece of evidence probative of guilt. A prosecutor could readily obtain another expert evaluation. Second, in the instant case, no person, convicted murderer or otherwise, would go free as a result of a reversal in this case. On May 29, 1984, Billy Byers was released from prison pursuant to a federal district court order reducing sentence. This court's declaration of fair and reliable procedure would be costless.

The abuses in Billy Byers' case are emblematic of this court's failure to exercise its supervisory authority over the administration of the insanity defense. We presently condone a process in which conviction can hinge on a recollection by a government psychiatrist with potentially conflicting loyalties of a secret interview conducted far in the past. In my view, this court should employ its supervisory powers to require the recording of all compelled clinical interviews. In the instant case, I would rely on our supervisory power to exclude Dr. Kunev's testimony as unverifiable, unreliable, prejudicial, and lacking in probative value.

V. CONCLUSION

Thirty years ago, with the opinion that I wrote for the court in Durham v. United States, this circuit undertook to transform the role of the psychiatric expert from moral oracle to modern behavioral scientist. We acted largely in response to the psychiatrists' representations that they did not want to resolve ultimate questions of right and wrong, but wanted only to report their findings as scientific investigators. We challenged mental health professionals to disclose to us their intermediate observations and inferential processes.

We were sorely disappointed. As we began to work with the Durham formulation, two lessons became clear. First, we learned that psychiatrists were unwilling to make juries privy to their techniques and their thought processes. The diagnostic process remained a black box from which only legal conclusions emerged. Second, we learned that we had reason to suspect the validity of the conclusions coming from those black boxes. We knew that the government psychiatrists to whom we sent insanity defendants were, in theory, impartial officers of the court. But our experience administering the insanity defense taught us that government doctors often identified with the prosecution, consulted with the prosecution, testified for the prosecution, and were subject to institutional and career pressures to support the prosecution. We tried in a series of cases to illuminate the process of diagnosis. In Washington v. United States, for example, we tried to force psychiatrists to focus on the examination process by excluding testimony on the ultimate question of responsibility. In Thornton, we considered the advisability of preserving a portion of that process — the staff conference — on tape. Nothing worked; the oracular moral pronouncements continued and the divided loyalties of the institutional psychiatrists remained unexamined.

Twelve years ago, in United States v. Brawner, we unanimously abandoned the Durham formulation for a new test of insanity. At that time, I noted that the real problem with the insanity defense lay in the fairness of its administration, not in its verbal formulation. I observed:

Neither Durham nor Brawner lets slip our well-guarded secret that the great majority of responsibility cases concern indigents, not affluent defendants with easy access to legal and psychiatric assistance. In a long line of cases we have been asked to confront difficult questions concerning the right to an adequate psychiatric examination, the right to psychiatric assistance in the preparation of the defense, [and] the right to counsel at various stages of the process. . . . If the promise of Durham has not been fulfilled, the primary explanation lies in our answers, or lack of answers, to those questions.

Brawner failed to dispel our ignorance about the diagnostic process. It failed as well to confront the problem of safeguarding the rights of poor and ill-informed defendants swept into a system that they could not comprehend. I wrote, "I fear that it can fairly be said of Brawner, just as it should be said of Durham, that while the generals are designing an inspiring new insignia for the standard, the battle is being lost in the trenches."

And so too it must now be said of Byers. Byers' experience in the system of institutional psychiatry was a grotesque catalogue of what we have been decrying for three decades. The government psychiatrist offered a conclusory pronouncement of responsibility based on an unverifiable and ambiguous statement allegedly made by Byers during an in camera examination, the details of which are unknown. Once again, this court has failed to intervene in a system with such demonstrated capacity to abuse, distort, and degrade.

I am aware that today the insanity defense is not at all popular. Its purposes, its prevalence, and its consequences are poorly understood. We must be mindful, however, that the insanity defense is integral to the moral foundation of the criminal law. We cannot ignore our obligation to assure that the defense is administered fairly, that the inquiries conducted are thorough, that the data is scrutinized, and that the rights of those who assert the defense are guarded zealously. I fear that this court's failure to protect the rights of defendants permits the conversion of the insanity defense from a moral bulwark into a trap for the ignorant and unwary.