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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."

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. 116 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."

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See note 20 supra.

As noted above, trustworthiness does not allow admission of a coerced confession. See, c.8., Rochin v. California, 342 U.S. 165 (1952).

People v. Esposito, 287 N.Y. 389, 39 N.E.ad 925 (1942).

GUTTMACHER & WEIHOFEN, PSYCHIATRY AND THE LAW, 257 et seq. (1952). 110

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.

Sec Leland v. Oregon, 343 U.S. 790 (1952).
GUTTMACHER & WEIHOFEN, op. cit. supra note 115, at 284 et seq.

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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 case11– 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).

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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

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, 12 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 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. 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

an

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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).

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).

See 8 WIGMORE, op. cit. supra note 11, 88 2380-91. 19 12. 2380a.

occasions.123 Would it be permissible to ask a defendant.on crossexamination whether he had refused to take a lie detector or truth-serum test? Certainly, with both investigative techniques in their present fallible state, such a question would seem of very dubious propriety. The refusal to take the test may be the result not of consciousness of guilt, but, instead, of ignorance concerning the test's administration, distrust of the operator's ability or integrity, and, with truth serum, fear of possible physical or psychological aftermaths. Of course, it can be said that the defendant can explain to the jury his reasons for declining the test; but, on balance, probably the best course would be to prohibit this whole line of cross-examination. Even as to witnesses other than the defendant, it should certainly be within the discretion of the trial judge to prohibit such questioning in order to avoid getting too far from the main issues of a trial.

A defendant may claim that he was deprived of a fair trial because he was denied the opportunity for a lie-detector or truth-serum testeither of himself or of certain witnesses. Certainly, the courts will be unwilling to accept such a claim until such tests have become more reliable; since the test results could not be used as evidence in most instances, the courts would hardly be willing to reverse a convictic: because of any refusal of the prosecution to give the tests. 128 Of course, as the accuracy of such investigative techniques increases, some legislatures may decide to require that they be used at the defendant's request in certain instances regardless of whether the results would be directly admissible in evidence. However, without legislative action, the accused's chance of success is poor.

Where the accused's mental condition is at issue, he might urge that the failure to provide for the testing of that condition by all available means, including narcoanalysis, deprived him of “due process and even of his "right to counsel.” As to requests to test prosecution witnesses, he might insist that, to have the full benefit of court process in securing evidence, at his request such witnesses should be scientifically tested; and that to deny such a demand deprived him of his rights as

Campare Grunewald v. United States, 353 U.S. 391 (1957), with Raffel United States, 271 U.S. 494 (1926). See also 8 WIGMORE, op. cit. supra note 11 g

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Cf. People v. Porter, 136 Cal. App.2d 461; 288 P.ad 561 (1955); Commonwealth v. Dilworth, 179 Pa. Super. 64, 115 A.2d 865 (1955); State v. Perlin, 368 Wis. 529, 68 N.W.2d 32 (1955). Nor would a court grant a petition for a new trial based on lie-detector or truth-serum evidence. United States v. Bourchier, s U.S.C.M.A. 15, 17 C.M.R. Is (1954).

much as to refuse him court aid in subpoenaing witnesses. The tendency in recent years has been to put more and more of a burden on the government; 127 but—in part because of probable solicitude for the welfare of prospective witnesses—it seems doubtful that courts would accept the defense position on this point, even if satisfied of the infallih-lity of the lie detector or truth serum.

In the event that a judge were willing to order that prospective witnesses be subjected to a truth-serum or polygraph test, what would be the validity of such an order? Not infrequently, this would involve a possible deprivation of the witness' own privilege against self-incrimination,128 although there might be some question as to the proper procedure by which the witness could vindicate his privilege. 120 Sometimes the witness might have to resort ultimately to a criminal prosecution or a civil suit initiated against the persons who subjected him to the test against his will. Even apart from self-incrimination problems, a judge, as against proper objection, would probably be unwilling to force a witness to be examined under truth serum and, perhaps to a lesser extent, would hesitate to force submission to a lie-detector test. The only recourse, then, for the defendant would be the possibility of bringing out by cross-examination the witness' refusal to be tested.180

A defendant will often seek to bring to the jury's attention the circumstance that he volunteered for a lie-detector or truth-serum test. Actually, the volunteering may have been simply a last-ditch maneuver by a guilty man.181 At best, it is only an implied pretrial assertion of innocence and would be admissible in evidence only under circumstances when a prior consistent statement by a witness would be admissible.182

For a typical case, sec Griffin v. Illinois, 351 U.S. 12 (1956).

Not only would there be the possibility that the witness might be incriminating himself as to the offense under investigation, but also as to some offense predicated on false information previouly furnished.

*** The witness, not being a party to the criminal proceeding against the accused, would have no standing to make a motion in the cause. On the other hand, he might seek an injunction, or a writ of prohibition, or mandamus, according to the procedure of the particular jurisdiction. If he were being held in custody to be tested, a writ of habeas corpus might be the appropriate relief.

*** See note 125 supra for some relevant authorities. There is probably more reason to permit such cross-examination of a witness than of a defendant, since with the defendant there is always the risk that a jury will "penalize” him for his refusal to cooperate with investigators by inferring guilt too readily.

This point is made in Highleyman, supra note 81; See also People v. Parrella,

Cal.ad — 322 P.2d 83 (1958); Commonwealth v. Saunders, 386 Pa. 149, 125 A.ad 442 (1956).

Sec * WICMORE, op. cis. supra note 11, 88 1122-44. North Carolina is ap

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