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September 25, 1991


The opinion of the court was delivered by: Glasser, District Judge:


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 that:

  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.

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 ...

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