United States District Court, Eastern District of New York
September 25, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
MICHAEL BLOOME, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
The defendant Salvatore Fusco seeks an order directing a
mental examination of a major government witness, Dominick
Costa. His motion is predicated upon what he alleges to be a
pre-existing history of psychological disturbance and the
traumatic effect of bullet wounds to his head in which
fragments of bullets still remain. The motion was denied at the
commencement of the trial without prejudice to renew when Costa
was called. See, e.g., United States v. Khoury, 901 F.2d 948,
966 (11th Cir. 1990).
Although not clearly articulated as such, the motion will
nevertheless be regarded as raising two issues, namely, (1)
Costa's competence to testify, and (2) his credibility. As
regards the distinction between the two, United States v.
Ramirez, 871 F.2d 582, 584 (6th Cir.), cert. denied, ___ U.S.
___, 110 S.Ct. 127, 107 L.Ed.2d 88 (1989) is instructive. The
court there noted that the credibility of a witness is for the
jury to determine but the competency of the witness is for the
judge to decide. As to competency, that determination is to be
made in the context of Rule 601, Fed.R.Ev., which provides
Every person is competent to be a witness except
as otherwise provided in these rules.
In United States v. Khoury, supra, it was said that "the
Federal Rules of Evidence provide an initial presumption of
competence." 901 F.2d at 966.
The Federal Rules of Evidence make reference only to judges
(Rule 605) and jurors (Rule 606) as being incompetent to
testify. As a general rule, the competence of a witness depends
upon a capacity to observe, to remember, to communicate and to
understand the nature of an oath
and the duty it imposes to tell the truth. Measured by those
fundamental criteria, Costa's status as a competent witness is
beyond question. The excerpts of hospital records the defendant
regards as warranting a mental examination and which were
annexed to his motion papers fall far short of his assessment
of them. They contain no indication of a prolonged history of
mental illness nor do they suggest any other significant basis
which would cast doubt upon his capacity to testify. On the
contrary, attachments to his motion of the reports of a
neurological resident and a psychologist each concludes with
precisely the same words: "His visuo-constructional skills are
quite intact. There was also no evidence of any deficits in
long-term memory for both verbal and visual information.
Immediate recall of visual information was intact as well." In
addition the court observed and listened to this witness over
a period of days during which he was vigorously cross-examined.
He was responsive to questions in a coherent and forthright
manner and made it manifestly plain that he understood the
importance of his oath to testify truthfully, a matter
concerning which he was aggressively pressed by defense
As to credibility, the courts are virtually unanimous in
holding that district courts have wide discretion in deciding
whether witnesses should undergo mental examinations. See,
e.g., United States v. Fountain, 840 F.2d 509, 517 (7th Cir.),
cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564
(1988). The courts are also virtually unanimous in holding that
that discretion should be exercised sparingly. See, e.g.,
United States v. Ramirez, supra; United States v. Raineri,
670 F.2d 702, 709 (7th Cir.), cert. denied, 459 U.S. 1035, 103
S.Ct. 446, 74 L.Ed.2d 601 (1982). In United States v. Russo,
442 F.2d 498 (2d Cir. 1971), cert. denied, 404 U.S. 1023, 92
S.Ct. 669, 30 L.Ed.2d 673, reh. denied, 405 U.S. 949, 92 S.Ct.
930, 30 L.Ed.2d 819 (1972) the defendants asserted that the
government's star witness was a "pathological liar" and "a
liar, thief, cheat and perjurer." They strenuously argued that
the trial court erred in refusing to order a psychiatric
examination. In rejecting their argument, the court wrote:
Itkin may well have possessed all of these
characteristics and the Government may have been,
and probably was, following the precept "Set a
thief to catch a thief" but in cases involving
crime, the Government's witnesses are rarely
pillars of the Church. As long as the jury from its
observation has the opportunity to appraise the
credibility of the witness in the light of facts
impugning his veracity, this constitutes the
constitutional safeguard of a defendant's rights.
442 F.2d at 502 (emphasis added).
The courts are virtually unanimous too in holding that
psychiatric testimony regarding the credibility of a witness
will not be admissible. That view has been expressed in many
ways. In United States v. Fountain, supra, the court refused to
require a witness to submit to a psychiatric examination before
testifying and made this observation:
The district court was entitled to be leery of
both psychiatric examinations of witnesses and
psychiatric testimony about witnesses, because the
jury can observe for itself . . . the witness'
behavior. Criminal trials are complex enough
without turning them into collateral
investigations of the witnesses — investigations
that would not only drag out trials and confuse
jurors but also discourage people from serving as
840 F.2d at 517.
In United States v. Eschweiler, 745 F.2d 435, 438 (7th Cir.
1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1188, 84 L.Ed.2d
334 (1984) the court reaffirmed its reluctance to encumber
criminal proceedings with psychiatric examinations of
witnesses, a determination that the court previously made in
United States v. Gutman, 725 F.2d 417, 420 (7th Cir.), cert.
denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 183 (1984).
In United States v. Ramirez, supra, the court held that it
cannot order a non-party witness to be examined by a
psychiatrist. At best, it could merely condition such witness'
testimony on a prior examination. Citing and quoting from
United States v. Gutman, supra, the court continued:
The courts that have addressed the question
agree, however, that the power not to allow a
witness to testify unless he submits to a
psychiatric examination should be exercised
sparingly. (Citations omitted).
If the doors are opened to a battle of experts
testifying as to a witnesses' credibility, there
would be no end to the collateral consequences.
There would be just as much reason to want such
testimony as to an accomplice witness, an
informer, or a witness who had cut a deal with the
government as there would be to a drug user. In
this era of increasing use of experts in both
civil and criminal trials, the sad truth is that
an "expert" can be found to testify on behalf of
almost any viewpoint or position. Wisely, we have
historically left credibility determinations to
the trier of fact, and we see no reason to depart
from that procedure under the facts of this case.
871 F.2d at 585.
Returning to United States v. Gutman, supra, the defendant
there, prior to trial, moved for an order that a government
witness be given a psychiatric examination before being
permitted to testify. The district court's denial of that
motion together with the defendant's motion for a pretrial
hearing on the witness' competency to testify was affirmed. As
is true here, the court concluded that the psychiatric reports
put before the trial judge did not create a doubt serious
enough to warrant a hearing and permitted the conclusion
that the reports taken as a whole did not suggest
that Odom was incapable of telling the truth or of
appreciating the significance of his oath as a
witness. We are reluctant to open the door to
sanity hearings for witnesses. . . . It is
unpleasant enough to have to testify in a public
trial subject to cross-examination without also
being asked to submit to a psychiatric examination
the results of which will be spread on the record
in open court to disqualify you, or at least to
spice up your cross-examination.
725 F.2d at 420.
In United States v. Barnard, 490 F.2d 907 (9th Cir. 1973),
cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310
(1974), the defendants sought to introduce the testimony of a
psychiatrist and a psychologist as to their opinions of a
government witness' competency and reliability as a witness.
The psychiatrist and the psychologist had read the Army
psychiatric evaluation and the grand jury testimony of the
witness and observed him during part of his testimony in court.
On the basis of the foregoing, each had formed the opinion that
the witness would lie if it were to his benefit to do so and
was a sociopath. The trial judge did not permit that testimony.
In affirming that ruling, the court said, at pages 912-13:
As we have seen, competency is for the judge, not
the jury. Credibility, however, is for the jury
— the jury is the lie detector in the courtroom.
Judges frequently instruct juries about factors
that the jury may or should consider in weighing
the veracity of a witness. In this respect it can
be said that judges assume that they have certain
expertise in the matter, and that juries have less
of that expertise than judges. It is now suggested
that psychiatrists and psychologists have more of
this expertise than either judges or juries, and
that their opinions can be of value to both judges
and juries in determining the veracity of
witnesses. Perhaps. The effect of receiving such
testimony, however, may be two-fold: first, it may
cause juries to surrender their own common sense in
weighing testimony; second, it may produce a trial
within a trial on what is a collateral but still an
important matter. For these reasons we, like other
courts that have considered the matter, are
unwilling to say that when such testimony is
offered, the judge must admit it.
See also United States v. Provenzano, 688 F.2d 194
(3d Cir.), cert. denied, 459 U.S. 1071
, 103 S.Ct. 492
L.Ed.2d 634 (1982); United States v. Pacelli,
521 F.2d 135
, 149 (2d Cir. 1975), cert. denied, 424 U.S. 911
, 96 S.Ct.
1106, 47 L.Ed.2d 314 (1976). In United States v. Jackson,
576 F.2d 46
, 49 (5th Cir. 1978) the court, in declining a request
for the mental examination of prosecution witnesses observed
that in addition to seriously impinging upon a witness' right
to privacy, such an examination could also be used to harass,
deter witnesses from coming forward and cause a chilling effect
on the detection of crime.
For the foregoing reasons, the defendant's motion is denied.
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