Metropolitan News-Enterprise


Tuesday, June 3, 2008


Page 1


Court: Defendant’s Mental Examination Cannot Be Compelled


By SHERRI M. OKAMOTO, Staff Writer


A trial court may not compel a criminal defendant presenting a diminished actuality defense to grant access to a prosecution mental health expert for purposes of a mental examination, the California Supreme Court held yesterday.

The state high court reversed Riverside Superior Court Judge Robert J. McIntyre’s order granting the prosecution’s discovery request to have its expert examine Jose de Jesus Verdin, as unauthorized by state law, in a unanimous decision,

Police officers were called to Verdin’s residence and encountered him naked, sitting on his front porch. He admitted that he had tried to suffocate his two-year old daughter because “she wouldn’t shut up,” and then attacked his wife and attempted to shoot her because he was “mad.” 

Verdin was charged with the attempted premeditated murder of his wife, felony child endangerment and other crimes. He noticed his intention to defend against the charges by relying on a diminished actuality defense and produced a psychological evaluation from an examining psychiatrist.

State at Issue

The prosecution cited People v. Carpenter (1997) 15 Cal.4th 312, People v. McPeters (1992) 2 Cal.4th 1148, and People v. Danis (1973) 31 Cal.App.3d 782, which held that a criminal defendant who places his mental state at issue creates the prosecution’s right to access the defendant for purposes of a mental examination in support of its motion to compel. 

McIntyre granted the request, and the Court of Appeal denied relief.

The passage of Proposition 115, commonly known as the Crime Victims Justice Reform Act, however, created new discovery rules for criminal cases, Justice Kathryn Mickle Werdegar explained. Under these new rules, any prosecutorial discovery must be statutorily authorized  or mandated by the U.S. Constitution, she wrote.

“Although we have in the past found merit in a rule authorizing such discovery when a defendant places his mental state in issue,” Werdegar continued, “…we are no longer free to create such a rule of criminal procedure, untethered to a statutory or constitutional base.”

Pretrial Discovery

Because a psychiatric examination of a party is a form of pretrial discovery within the meaning of the criminal discovery statutes, and is neither authorized by the criminal discovery statutes or any other statute, nor mandated by the Constitution, Werdegar reasoned, Danis, McPeters, and Carpenter are  not longer valid authority.

The case law principle that a defendant who places his mental state at issue must submit to a prosecution examination has been abrogated by the passage of Proposition 115, she concluded, and the government is precluded from proving its case by compelling a defendant to grant a prosecution expert access for a psychiatric examination.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carlos R. Moreno, and Carol A. Corrigan joined Werdegar in her opinion.

The case is Verdin v. Superior Court (People), 08 S.O.S. 3191.


Copyright 2008, Metropolitan News Company