IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

Transcription

1 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA REYNALDO A. MALDONADO, Petitioner, Case No. S [1st DCA, Div. 5, Case No. A126236] vs. SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE ON BEHALF OF PETITIONER REYNALDO A. MALDONADO (RULE 8.520(f)) AND BRIEF IN SUPPORT OF PETITIONER John T. Philipsborn (CBN 83944) Law Offices of J.T. Philipsborn Civic Center Building 507 Polk Street, Ste. 350 San Francisco, CA (415) Attorney for Amicus Curiae CACJ

2 TABLE OF CONTENTS Page I. APPLICATION OF AMICUS CACJ TO APPEAR ON BEHALF OF PETITIONER REYNALDO A. MALDONADO... 2 A. Identification of CACJ...2 B. Statement of interest of amicus curiae...2 II. BRIEF ON THE MERITS 1. THE CURRENT STATUTORY SCHEME ADDRESSING COMPELLED MENTAL CONDITION EXAMINATIONS OF THE ACCUSED FOR THE STATE S BENEFIT FAILS TO COVER CRITICAL ASPECTS OF THE PROCESS, AND THIS COURT SHOULD MAKE CLEAR, IN ANY RULING IN THIS MATTER, THAT IN THE ABSENCE OF AN EXPANSIION OF THE STATUTORY SCHEME THAT ADDRESSES THE MANY ISSUES RAISED BY A COMPELLED EXAMINATION OF THE ACCUSED BY A STATE EXAMINER, COURTS MUST CAREFULLY CONSIDER THE APPLICABILITY OF THE DECISIONS OF BOTH CALIFORNIA AND FEDERAL COURTS TO THE EXAMINATION PROCESS; TO THE DISSEMINATION OF THE FRUIT OF THE EXAMINATION; AND TO THE PROTECTIVE MEASURES THAT ARE REQUIRED WHEN SUCH AN EXAMINATION IS COMPELLED A. Introduction... 4 B. Discussion and authorities CONCLUSION ii-

3 Cases TABLE OF AUTHORITIES Page Brown v. U.S. (1958) 356 U.S Buchanan v. Kentucky (1987) 483 U.S , 6, 11, 12 Estelle v. Smith (1981), 451 U.S , 6, 11 Gibbons v. Frank (3d Cir. 2004) 387 F. 3d Hess v. McKaskill (9th Cir. 1995) 67 F. 3d In Re Spencer (1965) 63 Cal.2d , 6, 7, 11, 15 Kastigar v. U.S. (1972) 406 U.S Maldonado v. Superior Court (2010) 184 Cal.App.4th passim People v. McPeters (1992) 2 Cal.4th Powell v. Texas (1989) 493 U.S Satterwhite v. Texas (1988), 486 U.S U.S. v. Byers (D.C. Cir. 1984) 740 F.2d U.S. v. Davis (6th Cir. 1996) 93 F. 3d U.S. v. Hall (5th Cir. 1998) 152 F.3d , 13 U.S. v. Johnson (N.D. Iowa, 2005) 362 F.Supp.2d , 7, 11, 14 -iii-

4 U.S. v. Taylor (N.D. Ind. 2004) 320 F.Supp.2d U.S. v. Williams (D.Haw. 2010) 731 F.Supp.2d U.S. v. Wilson (E.D. NY, 2006) 493 F.Supp.2d Verdin v. Superior Court (2008) 43 Cal.4th , 4, 5 U.S. Constitution Fifth Amendment...3, 5, 6, 7, 9, 10, 11, 12, 14 Sixth Amendment...3, 6, 7, 9, 10, 11, 14 Federal Rules of Criminal Procedure (b)...7, (c)...7, 11, 15 State Statutes California Penal Code , 7, (b)...9, 11, 12, 13, 14, 15, (b)(1)(B)...11, 13 California Rules of Court (f) (f)(2)...2 Evidence Code iv-

5 -v-

6 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA REYNALDO A. MALDONADO, Petitioner, Case No. S [1st DCA, Div. 5, Case No. A126236] vs. SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE ON BEHALF OF PETITIONER REYNALDO A. MALDONADO (RULE 8.520(f)) AND BRIEF IN SUPPORT OF PETITIONER TO: THE HONORABLE TANI CANTIL-SAKAUWE, CHIEF JUSTICE, CALIFORNIA SUPREME COURT, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT: California Attorneys for Criminal Justice (hereafter CACJ), apply under California Rules of Court, Rule 8.520(f) to appear as amicus curiae on behalf of Petitioner Reynaldo Maldonado. The application is made in compliance with Rule 1

7 8.520(f)(2) in that Real Party In Interest (hereafter Real Party) filed their reply brief on January 28, Thus, this brief is filed within 30 days of that brief, and complies with Rule I. APPLICATION OF AMICUS CACJ TO APPEAR ON BEHALF OF PETITIONER REYNALDO A. MALDONADO A. Identification of CACJ 1 CACJ is a nonprofit California corporation. According to Article IV of its bylaws, CACJ was formed to achieve certain objectives including to defend the rights of persons as guaranteed by the United States Constitution, the Constitution of the State of California and other applicable law. CACJ is administered by a Board of Governors consisting of criminal defense lawyers practicing within the State of California. The organization has approximately 2,000 members, primarily criminal defense lawyers practicing before Federal and State courts. These lawyers are employed throughout the State both in the public and private sectors. CACJ has often appeared before this Court, the United States Supreme Court, and the Courts of Appeal in California on issues of importance to its membership. CACJ s appearance as an amicus curiae before this Court has been recognized in a number of the Court s published decisions. B. Statement of interest of amicus curiae Amicus curiae CACJ has a demonstrated interest in the subject matter of this 1 The undersigned, John T. Philipsborn, as Chair of the Amicus Committee of CACJ, certifies to this Court that no party involved in this litigation has tendered any form of compensation, monetary or otherwise, for legal services related to the writing or production of this brief, and additionally certifies that no party to this litigation has contributed any monies, services, or other form of donation to assist in the production of this brief. 2

8 litigation. CACJ appeared as an amicus curiae both on brief, and in argument, when this Court considered Verdin v. Superior Court (2008) 43 Cal.4th The current case, Maldonado v. Superior Court (2010) 184 Cal.App.4th 739, raises issues framed by the response to this Court s ruling in Verdin. 2 As a result of this Court s ruling in Verdin, the Legislature responded by amending Penal Code , and adding Penal Code (b). The Maldonado litigation arises in part because of an Order entered under Evidence Code 730 by the Respondent trial court commanding Petitioner, who is a defendant in a pending criminal case, to be examined on the issue of his mental condition so as to permit the State to respond, and rebut, defense expert evidence of Maldonado s mental condition at the time of the crime. Petitioner s case provides this Court with its first opportunity to address in detail the procedures for a compelled examination of the accused pursuant to the post-verdin legislative scheme. This is an issue of importance to the members of CACJ who regularly defend persons accused of criminal offenses, including those who will raise a mental condition defense in non-capital as well as capital cases. In addition, CACJ regularly offers training to the criminal defense bar on the procedures applicable to the defense of criminal cases, and the organization has followed the litigation in the Maldonado litigation, given its importance to the beginning of the development of procedures to protect the Fifth and Sixth Amendments, and their California constitutional analogues, when a trial court issues a pre-trial Order compelling the accused to be examined by a State-employed examiner. For these reasons, CACJ respectfully asks that this Court grant CACJ 2 The citation in Maldonado is supplied for the convenience of the Court and parties. 3

9 permission to appear as amicus curiae on behalf of Petitioner. II. BRIEF ON THE MERITS 1. THE CURRENT STATUTORY SCHEME ADDRESSING COMPELLED MENTAL CONDITION EXAMINATIONS OF THE ACCUSED FOR THE STATE S BENEFIT FAILS TO COVER CRITICAL ASPECTS OF THE PROCESS, AND THIS COURT SHOULD MAKE CLEAR, IN ANY RULING IN THIS MATTER, THAT IN THE ABSENCE OF AN EXPANSION OF THE STATUTORY SCHEME THAT ADDRESSES THE MANY ISSUES RAISED BY A COMPELLED EXAMINATION OF THE ACCUSED BY A STATE EXAMINER, COURTS MUST CAREFULLY CONSIDER THE APPLICABILITY OF THE DECISIONS OF BOTH CALIFORNIA AND FEDERAL COURTS TO THE EXAMINATION PROCESS; TO THE DISSEMINATION OF THE FRUIT OF THE EXAMINATION; AND TO THE PROTECTIVE MEASURES THAT ARE REQUIRED WHEN SUCH AN EXAMINATION IS COMPELLED. A. Introduction This case presents this Court with the opportunity to review the statutory discovery procedure has forth in response to the ruling by this Court, Verdin v. Superior Court, supra, 43 Cal.4th 1096 which held that the lack of a pertinent statutory scheme deprived trial courts of the ability to order a mental condition examination of the accused on behalf of the State, given that since June 5, 1990, discovery in criminal cases is regulated by statute. Maldonado Superior Court (2010) 184 Cal.App.4th CACJ fully understands that even before this Court s ruling in Verdin, there had been a number of Court rulings that had set forth an architecture for compelled examinations of the accused where he or she put mental condition at time of offense at issue. Years ago, this Court reviewed the issues, and provided for such 3 Citation to the Court of Appeal s decision is provided for convenience. CACJ realizes that the opinion is currently being reviewed. 4

10 a process in In Re Spencer (1965) 63 Cal.2d 400 well before the U.S. Supreme Court revisited the subject, and ruled that while the Fifth Amendment does not prohibit compelled examinations of the accused after arraignment, the Fifth Amendment rights of the accused may be compromised where the compelled examination, generally, exceeds the scope of the notice provided to the accused. More than 15 years after Spencer, the United States Supreme Court held that the Fifth Amendment applies to a compelled, post-arraignment, mental health examination. Estelle v. Smith (1981), 451 U.S. 454, Subsequently, in Buchanan v. Kentucky (1987) 483 U.S. 402, , the U.S. Supreme Court ruled that where the accused presents mental condition expert evidence, then at the very least the State may rebut it with evidence from the defendant s requested examinations. Accord, Powell v. Texas (1989), 493 U.S. 680, 684 (per curiam). These are only some of the procedural rules involved in these compelled examinations. After all, the examinations arise after the accused is the subject of criminal charges; arraignment has taken place; in the overwhelming number of cases there is defense counsel either retained or appointed. As this Court has explained, part of the reason to allow these invasive examinations, notwithstanding the right to remain silent embodied in the Fifth Amendment, is to allow the State to address... spurious mental illness defenses... People v. McPeters (1992) 2 Cal.4th 1148, 1190, citing Buchanan, supra, 483 U.S On the other hand, Estelle v. Smith, supra, illustrates the mischief that can occur where a compelled examination of the accused, outside the presence of 4 McPeters was overruled on other grounds in Verdin, supra, 43 Cal.4th at The point made by this Court in McPeters is seconded by Real Party in his Reply at pp.3-4 relying on U.S. v. Byers (D.C.Cir. 1984) 740 F.2d 1104, (en banc). 5

11 defense counsel takes place. In Estelle, the accused had sought to have his competence assessed - and the State examiner s response was, among other things, to inquire into the offense, and to obtain sufficient information from Smith to formulate an opinion regarding his future dangerousness. This was particularly problematic in a capital case since then both the State, and the penalty jury, could rely on the examiner s opinions on future dangerousness (which had not been part of the noticed reason for the examination) to seek deals. Estelle v. Smith, supra, 451 U.S The U.S. Supreme Court recognized two interrelated issues raised by a compelled psychiatric examination. First, as the Buchanan, supra, Court explained it (and as subsequent courts have found), the Fifth Amendment will not be offended where the accused is compelled to provide information that will permit the State the means to offer a rebuttal to any mental state defense raised by the accused. Second, the Sixth Amendment will be satisfied where the accused and his counsel have fair notice of the examination and of its scope. Buchanan, 483 U.S. at Third, the Court then confirmed in Satterwhite v. Texas (1988) 486 U.S. 249, 254, that in capital cases especially, compelled examinations conducted without the guiding hand of counsel will violate the Sixth Amendment. Since the U.S. Supreme Court s rulings in Estelle, supra, and Buchanan v. Kentucky, supra, and their immediate progeny, there have been a number of efforts undertaken by legislative and rule-making bodies on the one hand, and courts on the other, to define the structure of the examination focus. See the discussion of the pertinent history in U.S. v. Johnson (N.D. Iowa 2005) 362 F.Supp.2d. 1043, This Court both designed, and anticipated, some of that fabric in its 6

12 ruling in In Re Spencer, supra, which permitted a compelled examination; allowed counsel to be excluded from the examination itself; and required a jury instruction limiting the use of the statements obtained from the accused in the compelled examination. Id. at The framers of the Federal Rules of Criminal Procedure also attempted to provide an architecture for compelled examinations which has undergone several transformations as the rules have become increasingly elaborate. See, generally, FRCP 12.2(b) and (c), as explained by the Federal District Court in U.S. v. Johnson, supra, 362 F.Supp.2d 1043, at Petitioner s arguments underscore that the issues presented here do not revolve around a court s power to compel the examination of the accused. Rather, his arguments are rooted in the recognition that a prematurely conducted State examination, or the premature disclosure of compelled statements of the accused and related anecdotal information and diagnoses may rub against the accused s Fifth and Sixth Amendment rights if an insufficient array of protective measures does not exist. CACJ s concern in appearing in this matter is to address what is made obvious by the Court of Appeal s attempt to craft a well-supported, and reasoned, procedure for disclosure of the fruit of a compelled mental condition examination - addressing the timing of that disclosure at the same time. As the Court of Appeal s analysis demonstrates, it is difficult to rely on only California law, and on the spare structure provided by Penal Code , in arriving at the proper procedure for the timing and the extent of the disclosure of information from the compelled examination that can be provided to the State before the accused actually begins presenting his mental condition defense testimony. Indeed, 7

13 Maldonado was focused on only some of the issues that arise in a compelled examination process. He had not challenged, in any major way, the sufficiency of the notice of the scope of the State s examination; the relevance and reliability of proposed testing; the scope of any interview of him, etc. Thus, the Court of Appeal focused on some of the nature of the disclosure permitted (it can include pre-trial statements made, and the timing of the disclosure, together with the protections of use and derivative use immunity and case-specific protective measures to uphold Respondent court s Order (Maldonado at pp ). Real Party has argued that the Court of Appeal went too far on this last point. The Court of Appeal decided that disclosure to the State can be ordered prior to the accused s presentation of evidence. Id. at The question of whether defense counsel can insist on redacting the contents of any report produced that exceeds the permissible scope prior to the commencement of trial is only alluded to indirectly. Id. at So is the mechanism to protect against derivative use of the defendant s statements during the examination. Id. at If the Court adopts the analysis of the Court of Appeal in these areas, it will have helped map the analysis that should be used in California - though, as noted, the Court of Appeal s opinion identifies a series of issues and discusses pertinent law, without framing all the necessary procedures to address the issues presented. Notwithstanding Real Party s opposition to judicially created protective measures, this Court should endorse them. Real Party is not recognizing the direction that courts have traveled in with respect to protective measures of various kinds. This case is, in essence, the beginning of the process of defining required procedures that will help implement the new statutory scheme. The question, for example, of whether the sealing of the penalty-related interview of a 8

14 death-penalty defendant is discussed in Maldonado v. Superior Court, supra, 184 Cal.App.4th 739, relying in part on U.S. v. Hall (5th Cir. 1998) 152 F.3d 381 at But the analysis offered is cursory, and arguably unnecessary to the discussion of a non-capital case like Maldonado. The issues presented in Maldonado are relatively simple, given the many issues issuing from compelled examinations of the accused that have resulted in a wide variety of court rulings. Maldonado, at pp CACJ supports Petitioner Maldonado in his arguments before this Court. CACJ recognizes, however, that some courts have taken the viewpoint that an Order permitting the fruit of the examination (usually a report containing a combination of the defendant s statements reported by the State examiner, test results and opinions) should be provided at a given point in advance of the presentation of the defense at trial to allow the Government to address the defense during its rebuttal. As noted, however, this Court should explain that the Court of Appeal was correct in explaining that case-specific protective measures may be required, and that contrary to Real Party s position, use and derivative use immunity are not sufficient protections against all contingencies. Also, the Court should explain that death penalty case-specific measures should be considered in capital cases, and that the Court is not purporting to decide here all that may arise in a capital case. Thus, further decisions will likely be required to clarify death penalty case procedures. Part of the reason that CACJ supports Maldonado s position at this juncture is that California s statutory scheme (Penal Code (b)) is so sparse in its 5 The Maldonado is again cited here simply for the convenience of the Court, in the knowledge that it is not binding. 9

15 definition of a process that protects both Fifth and Sixth Amendment rights that in the absence of a wide-ranging decision from this Court providing the many ingredients of the structure of both the examination and discovery process that have been omitted by the legislature, the protection of the accused s Fifth and Sixth Amendment rights will be a matter left to the understanding of trial courts which will, undoubtedly, address the issues in varying ways. CACJ respectfully urges this Court to make it clear that trial courts must view Penal Code as addressing only a few of the many matters that must be considered in addressing compelled examinations of the accused - and the Court should remind trial courts that there will be complexities injected into the analysis, and into the procedures associated with such an examination process, where the case involves the death penalty, or other proceedings. For example, other cases might call for: limited disclosure of examination reports and compelled defendant statements prior to trial; consideration of a Taint Team procedure; allowing pre-trial litigation of the scope of the examination (and exclusion of matters that exceed the scope); and temporary sealing of matters specific to penalty and/or other case issues. Real Party is mistaken in arguing that there is no reason to allow room for additional protective measures where a State allows compelled examination of the accused when the Fifth and Sixth Amendment rights of the accused have attached. In addition, as Maldonado pointed out in his original litigation, trial courts must be instructed to consider any appropriate protective measures, only some of which were addressed by the Maldonado Court of Appeal. B. Discussion and authorities Years ago - and long before the re-introduction of the death penalty in the 10

16 late 1970s - this Court had provided a forward-thinking structure for compelled examinations of the accused - having decided that such examinations should be permitted, notwithstanding assertion of Fifth Amendment objectives. See, generally, In re Spencer, supra, 63 Cal.2d 400 at As the Maldonado, supra, Court of Appeal discovered, analyzing the application of Fifth and Sixth Amendment rights to a compelled examination of the accused by a State examiner focused on mental state/condition at the time of the crime is no longer as simple an endeavor as it was at the time this Court decided Spencer, supra. At this point, a number of nuanced rulings are in existence - most of them rooted in Estelle, supra, and Buchanan, supra. A number of recent decisions reference the procedure for compelled examinations provided for under Federal Rule of Criminal Procedure 12.2(b) and (c). See, generally, U.S. v. Johnson, supra, 362 F.Supp.2d, , discussing: the sufficiency of defense notice of intent to use mental condition expertise; the breadth of the Government s prerogative to conduct an examination; measures such as videotaping to protect Sixth Amendment rights; use of taint teams (to avoid contamination of the trial team by receipt of defense s penalty-related expertise in advance of the conclusion of the guilt trial); Fifth Amendment-related discussions of the appropriate scope and nature of Governmental notice of its mental condition examination; etc. Many of the nuances at issue have yet to be considered by this Court, in part because prosecutors in California have not sought compelled examination of the accused as a matter of routine, notwithstanding the existence of Spencer, supra, and the few cases related to it. Thus, to date, this Court has not had occasion to determine (though it will, since the current statutory scheme, Penal Code (b)(1)(B), requires a determination of reasonable relation of testing to 11

17 the mental state placed at issue) whether a Court-ordered examination is excessively broad in its scope, or unrelated to the legally permissible objective of rebuttal of the defense evidence. Federal decisions indicate that a compelled examination can address issues similar to those addressed by the defense - but the compelled examination is not without limits. See, for example, the decision in Hess v. McKaskill (9th Cir., 1995) 67 F. 3d 307, approving of the limitation imposed by State Court on an examination to avoid a fishing expedition, the notion being that the Fifth Amendment is waived only as far as the accused can be cross-examined based on his direct testimony. Brown v. U.S. (1958) 356 U.S. 148, The point was also made by the Third Circuit in Gibbons v. Frank (3d Cir. 2004) 387 F. 3d. 268, 274. The waiver of the Fifth Amendment brought about by the introduction of a mental-state defense is not limitless:...it only allows the prosecution to use the interview the provide rebuttal to the psychiatric defense [citations omitted]. Indeed, the Sixth Circuit suggested in U.S. v. Davis (6th Cir., 1996) 93 F. 3d. 1286, 1293 that unlike in an insanity case, a mental-condition defense...requires a case-by-case analysis to determine whether a psychiatric or psychological examination of the defendant will be necessary for the government fairly to rebut the defendant s expert evidence. Even years after the decision in Buchanan, supra, a Federal District Court noted in 2006 that there was a...dearth of federal precedent on Rule 12.2 mental condition... evidence issues, particularly post-2002 when Rule 12.2 was amended. U.S. v. Wilson (E.D. NY 2006) 493 F.Supp.2d. 348, Very likely, in the future, this Court will be called upon to assess whether certain classes of psychological tests may either be too unreliable to be employed 12

18 in a criminal case, or whether the defendant can seek to limit the inferences that can be drawn, and opinions that can be given, based on compelled examination and testing in the penalty trial of a capital case, given the text of Penal Code (b)(1)(B). See, for example, U.S. v. Taylor (N.D. Ind., 2004) 320 F.Supp.2d. 790, where the accused had indicated he wanted to present evidence concerning the implications of his alcohol and drug usage, and where the Government indicated that it wanted to use wide-ranging Multi-Scale Inventories to assess his personality, as well as a Psychopathy Checklist. Id. at Clearly, Penal Code (b) contemplates that concerns about such testing may be addressed since now before ordering an examination of a specific kind...the trial Court must make a threshold determination that the proposed tests bear some reasonable relation to the mental state placed in issue by the defendant in a criminal action or a minor in a juvenile proceeding. P.C (b)(1)(B). This same section allows the clinical interview or mental status examination scope to be at least considered prior to the examination. Thus, in Taylor, supra, the trial court ruled that the Psychopathy Checklist was insufficiently reliable to be employed in a penalty trial and that the Multi-Scale Inventories could be used only to counter the defendant s substance abuse testimony. Id. at Presumably, in order for the scope of testing and examination (including the clinical interview, per Penal Code (b) to be determined, notice of the scope of testing and assessment must be sufficiently detailed - this is another issue that is not addressed in Maldonado, and which this Court will likely need to address at a future point in time. Moreover, the question of how a trial Court determines the propriety of testing ( reasonable relation to defense mental state) or the propriety of the breadth of the clinical interview also has yet to be 13

19 addressed. Under the statutory scheme, this decision can be made as a threshold decision prior to the examination. Presumably, some Courts may allow the defense to bring a separate challenge to this propriety of testing administered as part of a post-assessment review of the scope of the examination (the recording of it; the report of it; the notes of it; the test results of it). Would this happen prior to the dissemination of the disclosure of the State expert s report that is currently contemplated in Maldonado, supra? Maldonado does not answer that questions because the issue has not precisely been framed. Nor, for that matter, does Maldonado address whether trial Courts in California should consider protecting the accused s Sixth Amendment rights during the interview by requiring it to be recorded in specified ways (video or audio) for the reasons set forth in the analysis in U.S. v. Johnson, supra, 362 F.Supp.2d. at 1085, Thus, it is in part because of the many known procedural issues, and practical realities, discussed in the case law are not addressed in Penal Code (b) that CACJ urges this Court to make it clear that a number of variables will need to be considered when trial courts address the compelled mental-condition examination process left undefined by the statutory scheme. If the Court decides to uphold the Court of Appeal s ruling on timing (which CACJ opposes for the reasons advanced by Maldonado), nonetheless, the Court should announce that thare are undoubtedly cases in which the combination of Fifth and Sixth Amendment issues will require that some or all of the disclosure of the State examiner s report (and record of interview of the defendant) be delayed - notably in capital cases where the examination also addresses penalty issues. The Court of Appeal was correct in noting that additional protective measures may be necessary. 14

20 CACJ also respectfully urges the Court to explain that where the defense suitably frames and defines the nature of the mental condition that will be testified about, and the techniques used by defense experts to assess that mental condition, then the trial Court, applying the new statutory scheme (PC (b)), should be able to rule effectively on scope of interview and nature of testing issues. The Court should also explain that while the timing of the disclosure of the report to the State may provide the prosecutor with advance notice of the defendant s statements to the examiner, and that examiner s opinions and test score results, it is proper for a trial court to allow defense counsel to seek to limit the dissemination of such information, particularly statements of the accused, or test results, that are so clearly outside the scope of the permissible assessment as to not be properly transmitted to the State. The Court should also take this opportunity to decide whether, under the rule of In Re Spencer, supra, which has never been abrogated (except, arguably, in certain areas by the advent of Penal Code (b)), trial Courts will be compelled to give the Spencer instruction that the accused s compelled statements are only admitted for limited purposes. Id at Additionally, CACJ respectfully urges the Court to underscore that the procedures applicable to non-capital cases should not be deemed automatically applicable in a capital case, for all the reasons explained in the existing case law. In so explaining, the Court should - more forcefully than did the Court of Appeal - address the concern that a future ruling specific to capital cases may well result in the employment of a procedure like that required by Federal Rule of Criminal Procedure 12.2(c) - which forces omission of penalty-related information, or reports purely pertinent to penalty, until such time as it is clear that the accused 15

21 has been convicted, and that a penalty trial will be held - to avoid what would surely, in some cases, be the objectionable derivative use discussed in Maldonado s majority opinion. However, regardless of whether a case is capital or non-capital, CACJ respectfully urges the Court to reject Real Party s argument that the Kastigar v. U.S. (1972) 406 U.S. 441 use and derivative use immunity protection is sufficient as a protective measure (Reply Brief at p.11). The reason that trial courts continue to formulate case-specific protective measures in cases is to avoid having to conduct a traditional Kastigar hearing after the fact. Once evidence of use or derivative use of the fruit of a compelled examination surfaces in the case, any advantage presented by pre-trial examination of the accused and disclosure of the compelled examination is lost. The attention of the parties at that point is no longer devoted to the trial, but rather to the implications of allegedly prohibited use of the fruit of the examination. The better view, expressed by the Court of Appeal, and more forcefully by Federal trial courts, is that the trial court should use recognized protective measures to ensure adequate and timely notice of the compelled examination; adequate opportunity to limit excessive disclosure (or premature disclosure of material such as penalty-related information prior to the guilt trial in a capital case); procedures to seal material outside the scope of the examination, etc. See, for example, U.S. v. Williams (D.Haw. 2010) 731 F.Supp.2d 1012 [reviewing objections to specific testing in a capital case, the implications of premature disclosure of death penalty-related material, scope of examination and protectuve measure issues]. CONCLUSION 16

22 CACJ has explained its view that there is a fabric of judicial decisions, from a variety of quarters, that anticipate, and address, issues likely to arise in California as a result of Penal Code (b), which is not the focus of the issues here - but which is the statutory scheme that permits compelled examination of the accused. The utility of the Court of Appeal s opinion is that it methodically reviewed the issues presented in Maldonado, and explained, usefully, that California Courts may wish to review and employ the analysis of other Courts in assessing the appropriate response. However, ultimately, the Maldonado Court failed to justify the specific rulings on the timing of the disclosure of the State s report. This Court should take the opportunity to address the issues; forewarning trial Courts and prosecution and defense that the statutory scheme in use today (PC (b)) addresses only some of the critical issues, and that courts will need to address the particulars of each case in deciding the appropriate procedures. Dated: February 24, 2011 Respectfully submitted, JOHN T. PHILIPSBORN Attorney for Amicus Curiae CACJ CBN

23 CERTIFICATE OF COMPLIANCE I certify that the attached APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE ON BEHALF OF PETITIONER REYNALDO A. MALDONADO (RULE 8.520(f)) AND BRIEF IN SUPPORT OF PETITIONER uses a 14 point Times New Roman font and contains 5,587 words. Dated: February 24, 2011 Respectfully submitted, JOHN T. PHILIPSBORN Attorney for Amicus Curiae CACJ CBN

24 I, Steven Gray, declare: PROOF OF SERVICE BY MAIL That I am over the age of 18, employed in the County of San Francisco, California, and not a party to the within action; my business address is 507 Polk Street, Suite 350, San Francisco, California On February 24, 2011 I served the within APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE ON BEHALF OF PETITIONER REYNALDO A. MALDONADO (RULE 8.520(f)) AND BRIEF IN SUPPORT OF PETITIONER thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at San Francisco, California, addressed as follows: Jeffrey Lawrence (Counsel for Real Party) Deputy Attorney General Office of the Attorney General 455 Golden Gate Ave., Suite San Francisco, CA Paul F. DeMeester (Counsel for Petitioner) Attorney at Law 1227 Arguello St. Redwood City, CA The Honorable Stephen Wagstaffe District Attorney San Mateo County District Attorney s Office 400 County Center, Third Floor Redwood City, CA County of San Mateo Main Courthouse - Hall of Justice Superior Court of California 400 County Center Redwood City, CA First Appellate District, Division Five Court of Appeal of the State of California 350 McAllister Street San Francisco, CA (hand delivery) 19

25 Attn: Executive Director First District Appellate Project 730 Harrison St., Room 201 San Francisco, CA I declare under penalty of perjury that the foregoing is true and correct. Executed on February 24, 2011 at San Francisco, California. Steven Gray 20