or truth-serum test to exonerate himself and if it is shown that the results will be reliable, is it really consistent with the "dignity" of the individual to say that he is not qualified to make such a choice, and that instead the state has chosen that such tests shall not be performed? This argument as to "dignity" will be especially unpersuasive to a man who, by reason of an unjust conviction, is either executed or confined in prison. And how is the "dignity" of society served by the infliction of punishment upon innocent persons by reason of the exclusion of evidence that would tend to show innocence? So long as any emphasis is placed by the criminal law on mens rea, the courts will be confronted with a problem of determining the accused's state of mind.108 Moreover, so long as insanity-which embraces both the conscious and unconscious mind-constitutes a defense, the courts must, to some extent, probe beyond the conscious mind of the defendant. Nor is all of this probing done by the consent of the defendant. For instance, he may be under observation, although he is unaware of it. And some of the defendant's actions that reveal his true state of mind are performed by him involuntarily. In short, day in and day out, judges and juries must, in fact, examine both the conscious and unconscious mind of a criminal defendant-often at times and in ways to which he has not specifically consented. Therefore, when a lie detector or truth serum is used to accomplish this examination in a more accurate and scientific way, it seems rather incongruous to say that an invasion of the defendant's "dignity" has taken place. Indeed, many European judges who criticize the lie detector or truth serum would probably observe with great interest the behavior of an accused during his trial and would feel perfectly free to draw inferences from such behavior.109 In some instances, these inferences might rely on the same sort of physical reactions that are involved in the operations of a lie detector.110 These judges are not deemed to have improperly invaded the accused's mental processes. Yet, in these instances, the accused has not consented to the drawing of inferences from his behavior (unless his presence in the courtroom, which is often required by law, is considered to be such a consent), whereas a suspect 108 For discussions of mens rea, see JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW ch. 5 (1947); Clark & Marshall, Law of CriMES ch. 3 (5th ed. 1952). 10" See the German decision, note 83 supra. 11o Quercia v. United States, 289 U.S. 466 (1933), involved the situation of a judge who not only believed that persons who wring their hands are liars, but also informed the jury to the same effect. who consents to a lie-detector test has willingly agreed to have inferences, favorable or adverse, drawn from his physical reactions. The latter, rather than the former, situation would seem more in accord with the protection of an accused's "dignity." Also, it has been protested that to admit lie-detector or truth-serum evidence would destroy the right to a public trial, since the result of the trial is really predetermined in the examiner's office. If this be so, how can the trial of a defendant who pleads partial or total insanity be considered public? There the verdict will generally hinge on the testimony of psychiatrists who have examined the defendant extensively in their private offices long before the trial. Indeed, quite a few cases hinge on events that took place in a laboratory far away from judges or jury.111 And many an accused has been convicted because of a pretrial confession that was not prepared under public scrutiny. In short, the admission in evidence of lie-detector or truth-serum results would not destroy the defendant's right to a public trial any more than do many other types of evidence accepted in every court. Perhaps the reliability of truth serum and polygraph will never be great enough to warrant judicial use of their results, even under the prevalent American approach to the problem. However, even today, their accuracy seems sufficient to justify pretrial use by investigators; and there seems to be no valid reason to discourage such use in the hands of qualified persons. The skill of the user of such investigative devices is so important to their accuracy that clearly not every investigator should be turned loose with a lie detector or truth serum. Indeed, some have suggested that as a prerequisite to admitting polygraph results in court, a licensing requirement should be adopted for the operators in order to assure their possession of minimal qualifications. Truth serum should be restricted in use to physicians and clinical pychologists; injections by others might even be considered to involve a battery, or perhaps the unauthorized practice of medicine. In the unlikely event that the goal of infallibility were reached with either the lie detector or truth serum, it might then be urged that even an accused should be involuntarily subjected thereto. The rationale of any such suggestion would be that the privilege against self-incrimination and the right to due process are designed only to avoid an innocent man's convicting himself out of his own lips. For federal investigators, it seems 111 This is true with reference to bloodtests, fingerprint comparisons, ballistics evidence, analyses of urine specimens, and many other types of scientific tests that play a prominent part in modern criminal law administration. impossible to reconcile such a position with the unqualified privilege against self-incrimination, since, upon proper analysis, both truth serum and polygraph require a "testimonial utterance" for their success.113 While state investigators in some jurisdictions are more immune than their federal counterparts to the limitations imposed by the privilege against self-incrimination, it seems highly probable that to test an unwilling suspect with truth serum or with the polygraph would deprive him of "due process." It has been emphasized that the trustworthiness of a confession does not assure that its procurement conformed with "due process"; and, by analogy, it does not appear that the accuracy of truth-serum or lie-detector results would protect them from attack, if the suspect was tested unwillingly.11 As to the use of truth serum, at least one court-on the basis of a waiver theory-has taken a different tack where the defendant relied on insanity.114 Whether the interposition of an insanity plea constitutes a waiver of any privilege against administration of truth serum, is only another phase of the general problem of waiver of the privilege against self-incrimination under such circumstances.115 Of course, this problem is complicated by the circumstance that if a defendant is genuinely insane, his competency to waive any right would be questionable. In theory, proof of insanity at the time of the offense destroys the mens rea which is required for the commission of crime; on this premise, it should be treated just like any other element of the crime. However, the criminal law clearly has differentiated the sanity question from other problems of guilt. For instance, the presumption of sanity is generally recognized, though there is no presumption of guilt.116 And as to sanity, the allocation of burden of proof between prosecution and defendant may be different than with the usual questions of guilt or innocence.117 Where sanity at the time of trial, rather than at the time of the crime, is involved, again special provision is made; for instance, many jurisdictions authorize extensive pretrial hospitalization for observation of an offender whose sanity is questionable.118 119 See note 20 supra. 119 As noted above, trustworthiness does not allow admission of a coerced confession. See, e.g., Rochin v. California, 342 U.S. 165 (1952). 114 118 110 People v. Esposito, 287 N.Y. 389, 39 N.E.ad 925 (1942). GUTTMACHER & WEIHOFEN, PSYCHIATRY AND THE LAW, 257 et seq. (1952). See United States v. Biesak, 3 U.S.C.M.A. 714, 14 C.M.R. 132 (1954), for a detailed discussion of the sanity presumption. 117 118 See Leland v. Oregon, 343 U.S. 790 (1952). GUTTMACHER & WEIHOFEN, op. cit. supra note 115, at 284 et seq. 85952 O-62-21 The uniqueness of the sanity issue has been recognized by the courts to such a degree that a strong plea can be made to discard usual concepts of self-incrimination where investigation of an accused's sanity is proposed. This argument would support the use of truth drugs or any medically-recognized technique for discovering state of mind. A rationale might be proposed-along the lines of the Esposito case11o___ that a defendant, if insane at the time he is mentally examined, will be conclusively presumed to have consented to the use of truth drugs by a qualified psychiatrist or psychologist, since such use will lead to the discovery of his true mental condition, and this, in turn, will redound to his benefit. On the other hand, if the accused is sane at the time of his examination, he is required to submit to truth serum or other recognized methods of psychiatric evaluation as a condition to presenting any insanity defense. Actually, such a rationale amounts to little more than saying that in so far as an insanity defense is concerned-whether it be insanity at the time of the offense or at the time of trial-there simply is no privilege against self-incrimination or against the administration of truth drugs and the like. If any such argument is to be accepted, the courts must take care to assure that any incriminatory revelations to the psychiatrist by the accused not be communicated to the police and, a fortiori, that they not be used in evidence. In some instances, the psychiatrist may be limited by this restriction in expressing the predicate for his opinion, but any other result would reduce the privilege against self-incrimination to a shambles. Indeed, the police in that event might make it a routine practice to investigate sanity through the vehicle of a psychiatric examination under truth serum. Of course, at any trial, the defendant's counsel would still be free to elicit from the witness the contents of any factual revelations by his client. Some will insist that no matter how reliable a truth serum or lie detector may become, the suspect will be deprived of his privilege against self-incrimination if the tests are made of the witnesses against him. According to this argument, if witnesses against the accused are examined with such devices and are corroborated thereby, then the accused is impliedly forced to take the same tests in order to exonerate himself. In so far as the pretrial investigation is concerned, this argument seems unrealistic. As a practical matter, many an accused is 287 N.Y. 389, 39 N.E.2d 925 (1942). 119 forced to break silence during an investigation as reliable evidence piles up against him, and there seems little room for complaint on his part as to the obtaining of such evidence by the administration of tests to other persons.120 121 If in some way it is brought out in evidence that the prosecution witnesses have "passed" a truth-serum or lie-detector test, the dilemma of the accused obviously is heightened. In so far as the results of such tests are not admissible in evidence, either directly or as a predicate for a psychiatric opinion as to credibility,1 any reference to the taking of the test should be held improper.122 Indeed, it seems best to exclude mention of a test, even if the results would on some theory be admissible, unless, in fact, they are admitted in evidence. However, in a jurisdiction that has determined that the results of a truth-serum or liedetector test are reliable enough to be admissible for the purpose offered, then it is submitted that the defendant has no more of a just complaint than in any other instance where the presence of strong evidence against him forces him to come forward with some explanation. If he does not wish to take a lie-detector test or truth-serum test himself, let him bring out by cross-examination or independent evidence the unreliability of the tests used on prosecution witnesses as to which evidence has been admitted. In jurisdictions which recognize a patient-physician privilege,123 an effort may be made to invoke it in some cases with reference to truthserum results. However, it is probable that such situations will generally fall outside the policy of this privilege, which seems designed chiefly to instill confidence of the patient in the sanctity of disclosures he is making for medical, rather than investigative, purposes.124 Actually the administration of truth serum by a physician should not in itself affect the operation of the patient-physician privilege one way or the other. Some jurisdictions permit a defendant who takes the stand to be questioned as to his silence or his plea of self-incrimination on previous 130 The accused has no standing to complain, for his own rights have not been violated. Cf. Goldstein v. United States, 316 U.S. 114 (1942). 191 See Lindsey v. United States, 237 F.2d 893 (9th Cir. 1956). 1" See Kaminski v. State, 63 So.2d 339 (Fla. 1953); Knight v. State, 97 So.2d 115 (Fla. 1957); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957). 133 See 8 WIGMORE, op. cit. supra note 11, 88 2380-91. 134 Id. § 2380a. |