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Mendendez Brothers' 1/95 Response To Motion To Compel Psychiatric Examination

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CASE NO. BA068880





Date: January 23, 1995
Time: 9:00 a.m.
Court: Department Northwest


The defendants, Erik Galen Menendez and Joseph Lyle Menendez, through their attorneys, submit the following response to the prosecution's Motion to Compel Defendants To Submit To Psychiatric Examination and Psychological Testing, dated October 28, 1994. DATED: January 12, 1995

Respectfully submitted,

Leslie H. Abramson
Marcia A. Morrissey
Attorneys for Defendant Erik Galen Menendez

Charles Gessler
Terri Towery
Attorneys for Defendant Joseph Lyle Menendez
By: /S/ Charles Gess


The prosecution's most recent Motion to Compel Defendants to Submit to Psychiatric Examination and Psychological Testing (hereafter "Motion to Compel")' asks this Court to order psyc:hiatric examination of Erik Galen Menendez and Joseph Lyle Menendez by Dr. Park Dietz, whom the prosecution describes as a licensed psychiatrist, and Dr. Margaret Singer, described as a licensed psychologist.2 In support of its motion for a court ordered psychiatric and psychological examination of Erik and Lyle Menendez by experts retained by the state, the prosecution argues that it is entitled to conduct testing because "the defendants placed their mental state in issue in the first trial." Motion to Compel, at p.3. However, as will be explained below, the case law cited by the prosecution does not support its present request for court ordered psychiatric and psychological examination of Erik and Lyle Menendez. In addition, the prosecution is not now entitled to concluct its own psychiatric or psychological examination of the Menendez brothers because such request is untimely, in that the prosecution waived its right to conduct testing by failing to pursue its Notice of Motion at the appropriate time during the first trial. The prosecution's present motion is also premature, in that the requested psychiatric and psychological examinations may not be required unless and until a "mental state defense" is presented at the brothers' retrial. Finally, although the prosecution has at this time no right to conduct the tests it seeks this Court to authorize, the defense may nonetheless agree to psychiatric examination and/or psychological testing, provided that certain questions regarding the scope of such examinations are satisfactorily answered and that the conditions under which the testing and interviews are conducted are adequate to insure the integrity of these procedures.


The prosecution's motion for psychiatric and psychological examination relies upon the case of People v. McPeters, 2 Cal. App.4th 1148, 1190 (1992). However, a reading of People v. McPeters demonstrates that the case is inapposite. The issue of the prosecution's psychiatric examination of the defendant in McPeters arose during the penalty phase of the case, not during the guilt phase and certainly not before the guilt phase had commenced.

At penalty phase, McPeters presented the testimony of two psyc:hiatrists: one doctor testified he was a schizophrenic and the second doctor testified he was suffering from drug-induced psychosis at the time of the murders. The state requested that a prosecution psychiatrist be allowed to examine McPeters before the prosecution called that psychiatrist to testify as a rebuttal witness at penalty phase. The defendant refused to participate in the court-ordered examination, and the psychiatrist testified about his refusal to participate in the psychiatric examination during his testimony as a prosecution penalty phase rebuttal witness. The California Supreme Court found no error in this procedure:

By tendering his mental condition as an issue in the Penalty phase, defendant waived his Fifth and Sixth Amendment rights to the extent necessary to permit a proper examination of that condition. Therefore, those rights were not violated when the examining psychiatrist testified to defendant's refusal to cooperate. (Buchanan v. Kentucky (1987) 483 U.S. 402 [97 L.Ed. 2d 336, 107 S.Ct. 2906]; see also People v. Poqqi (1988) 45 Cal.3d 306, 330 (246 Cal. Rptr. 886, 753 P.2d 1082]; People v. Williams, supra, 44 Cal.3d 883, 961-962). Any other result would give an unfair tactical advantage to defendants, who could, with impunity, present mental defenses at the penaltv phase, secure in the assurance that they could not be rebutted by expert testimony based on an actual psychiatric examination. Obviously, this would permit, and indeed, encourage spurious mental illness defenses. Cal.4th 1190 (emphasis added).

People v. Poqqi, 45 Cal.3d 306, 229-330 (1988), which is cited by the McPeters court, involves the admission of prosecution psychiatric testing at penalty phase in an entirely different context than that presented in this case. In Poqqi, the doctors who testified for the prosecution, Saul Faerstein, M.D. and Kaushal Sharma, M.D., had been previously appointed to examine the defendant on the issue of sanity, pursuant to Penal Code section 1026. The doctors testified at penalty phase based on their examination on the Penal Code section 1026 issue, and the defense sought to strike their testimony because neither psychiatrist gave the defendant the advisement required by Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed. 2d 359 (1981).3 The California Supreme Court rejected this argument, based upon the United States Supreme Court's decision in Buchanan v. KentuckY, 43 U.S. 402, 107 S.Ct. 2906, 97 L.Ed. 2d 336 (1987), which held that Estelle v. Smith does not apply where the defendant had initiated a psychiatric examination by court appo.inted experts by a plea of insanity and had presented psychiatric testimony on the issue as evidence in mitigation at penalty phase. Poqqi, 45 Cal. 3d 229-30.

This case is in a different procedural position than that presented in McPeters. First, McPeters involved the penalty phase of the trial, where the issue is one of sentencing, not guilt or innocence. Here, there has been no decision on guilt; indeed, the guilt phase of the present proceeding has not yet begun. Second, in McPeters there had been proceedings pursuant to Penal Code section 1368 to determine the defendant's competence to stand trial and non-confidential psychiatric examination of the defendant by court appo:inted psychiatrists pursuant to section 1368 of the California Penal code. McPeters, 2 Cal.4th at 1168- 1169. Cf. In re Spencer, 63 Cal.2d 400, 412 n. 10 (1965) (defendant's presentation of psychiatric testimony in support of a diminished capacity or insanity defense permits the prosecution to present opinion from a court-appointed psychiatrist in rebuttal during the guilt phase of trial, with certain conditions to safeguard the constitutional rights of defendant, including an instruction that any statements made by defendant to the psychiatrist are not to be regarded as proof of the truth of the facts disclosed by the statements and may only be considered for the limited purpose of showing the information upon which the psychiatrist based his opinion). The Menendez brothers have not offered a defense of diminished capacity or insanity and there have been no court-ordered, non-confidential examinations on competence or sanity. In re Spencer is therefore inapplicable to this case.

The prosecution's reliance on Edney v. Smith, 425 F.Supp. 1038, 1050-54 (1976) in support of its motion is also misplaced. First, decisions of the federal district courts are not binding on this Court. People v. Bradlev, 1 Cal. 3d 80, 86 (1969). Second, Edney is factually distinguishable from the case before the Court. In Edney, testimony about a court-ordered psychiatric examination of the defendant was introduced at the guilt phase of the state court kidnapping and murder trial of a defendant who advanced the defense of legal insanity. 4 Moreover, the issue in Edney was the constitutionality of the New York statutory procedure applicable where there is a plea of not guilty by reason of insanity which provides for an examination of the defendant on the issue of sanity which may later be used by the prosecution if the defense at trial is legal insanity. 5

The prosecution has previously represented that "Granviel (v. Estelle, 655 F.2d 673, 682 (Sth Cir. 1981)) applied the same principals (as Edney v. Smith) to a mental state defense." Notice of Motion, at p.6. However, this statement is incorrect. In Granviel, the issue of testimony as to an examination of the defendant by a psychiatrist called by the prosecution arose as a result of defendant having proffered an insanity defense at trial.6. Granviel was examined by a psychiatrist on the issue of sanity, pursuant to a Texas statutory scheme that provided, inter alia, for the appointment of qualified disinterested experts to examine on the issues of competence and sanity and gave both the prosecution and the defense the right to call such disinterested experts. 655 F.2d at 681. The State of Texas then called an expert who examined the defendant on the issue of sanity as a witness at the trial, to dispute his proffered insanity defense.7 The facts of Granviel are therefore not analogous to the present case, and provide no support for the prosecution's present motion for a court-ordered psychiatric and psychological examination before the guilt phase of the case has commenced.

Finally, the prosecution relies upon the Federal Rules of Criminal Procedure, section 12.2, which requires that pretrial notice of a mental state defense be provided to the prosecution and further provides that the district court may order the defendant who gives notice of such a defense, to submit to a psychiatric examination "[i]n an appropriate case."8 However, the Federal Rule of Criminal Procedure do not apply to this state court trial. The Menendez brothers are not required to provide the prosecution with notice of their intent to present a mental state defense. Nor may pretrial psychiatric examination be compelled based on the prosecution's expectations as to the nature of the defense to be presented at trial.


It is well-established that "for reasons of policy the psychotherapist-patient privilege has been broadly construed in favor of the patient." People v. Stritzinqer, 34 Cal. 3d 505, 511- 12 (1983). Judges are required to construe narrowly any exception to the psychotherapist-patient privilege and to apply this exception "only when the patient's case falls squarely within its ambit." Id. at 513.

During the first trial of this case, over the objection of the Menendez brothers, this Court ruled that the manner in which the defense was presented brought the case within the "litigant- patient exception" to the psychotherapist-patient privilege9 because the Menendez brothers tendered their mental condition. (113 R.T. 19449-51); see also this Court's order dated July 29, 1994. Throughout the prosecution's present Motion to Compel, the state makes reference to the Menendez brothers having placed their mental state in issue during the course of the first trial.10 However, the fact that this Court found a waiver of the patient- litigant privilege by virtue of the defense presented in the first trial does not create waiver of that privilege at the retrial.

This Court has previously ruled, in the context of the prosecution's ability to relitigate this Court's evidentiary rulings during the first trial (167 R.T. 27276-77), that the ending of trial proceedings, whether by the granting of a mistrial, a motion for new trial or by reversal on appeal, returns parties to the position they were at prior to the beginning of the first trial. Cf. Guzman v. Superior Court, 19 Cal. App. 4th 705, 707-08 (1993); see also People v. Thompson, 50 Cal. 3d 134, 177 (1990) (declaring a mistrial in a capital case renders the retrial "a judicial proceeding in which the matter in issue is again examined and resolved.")

The limited nature of the patient-litigant privilege exception codified in Evidence Code 1016 requires that this exception not be applied unless and until the Menendez brothers present a mental defense during the second trial of this case. There has been as yet no tender of a defense of any kind at the second trial. Clearly, such a defense may be offered at retrial, as it was at the first trial. However, the defense may well decide, based on the manner in which the new prosecution team presents its case-in- chief at the retrial, that the brothers will not present the testimony and evidence that they presented during the first trial. There has been no defense testimony presented in this case, and no firm defense decision on what witnesses we will in fact call during the trial. The list of witnesses provided to the prosecution pursuant to this Court's order regarding defense discovery is a list of potential witnesses who might be called at trial, but certainly does not require the defense to call any one of those witnesses. On the contrary, the fact is that the defense may never call any witness as part of its case during this retrial. Nor can this Court require us to make a decision at this point as to what evidence, if any, we will in fact present.

During the first trial, this court found that the defense had placed the mental state of the defendants in issue only after hearing much of the defense case, including testimony presented from both Erik and Lyle Menendez. See 113 R.T. 19449-5-1. Although the prosecution had argued on a number of occasions prior to October 25, 1993, the date of the Court's ruling, that the defense, by virtue of its opening statement or by virtue of calling defense witnesses, had placed mental state in issue, this Court declined to rule that mental state had been placed at issue until that point in the trial where the defense had in fact presented its case to the jury. See, e.g., 57 R.T. 8540-8545, 78 R.T. 13095-13101.

During the first trial, the prosecution filed a motion seeking to compel a psychiatric and psychological examination of Erik and Lyle Menendez. However, the prosecution did not seek a ruling from the Court on the issue of its right to conduct a psychiatric examination during the course of the first trial. Having failed to pursue a psychiatric examination of the defendants during the first trial, the prosecution is not now entitled to obtain such a belated examination.

Although the prosecution's motion states in conclusory fashion that this Court is authorized to invoke the waiver section of Evidence Code 1016 in anticipation of a defense,ll the prosecution cites no authority for this proposition, and none exists. This Court may not violate the well-settled requirement that the Evidence Code 1016 litigant-patient exception be narrowly construed with all doubts resolved in favor of the patient by acceding to the prosecution's demand for the anticipatory application of that provision. On the contrary, the case law discussed above, and in related pleadings on this issue filed by the defense, 12 clearly indicates that the exception is limited only to those issues which are actually tendered by the litigant-patient. The prosecution's request for a psychiatric examination and psychological testing of both defendants in this case, based upon either this Court's finding that mental state was at issue during the first trial or the prosecution's own speculation as to whether or not defense witnesses will, in fact, place mental state at issue is not legally cognizable.


For the reasons discussed above, the prosecution has no right to a pre-guilt phase psychiatric examination or psychological testing of Erik and Lyle Menendez. Although the prosecution has no right to such testing, the defense may nonetheless have no objection to such procedure, provided that any testing or evaluation is conducted by qualified, unbiased mental health professionals, provided that any tests administered are propriate to this case and these defendants, and provided that the raw data obtained is scored by impartial, unaligned third parties.

A. the Prosecution Has Provided Insufficient Evidence Regarding its Proposed Psychological Testing of the Defendants by Dr. Nargaret Singer

The prosecution has proposed a two-step method of evaluation. First, the prosecution proposes that Margaret Singer conduct "[psychological] tests traditionally used in the assessment of cognitive and emotional status of individuals." l3 The information provided by the prosecution is not sufficiently specific for the defense to evaluate whether to participate in the proposed examinations. Although the areas to be tested are generally described by the prosecution, the state fails to name any specific tests that Dr. Singer intends to administer to Erik and Lyle Menendez. The names of the tests that the state seeks to administer are necessary, for a number of reasons. First, it has been demonstrated that some standard psychological tests are in fact unreliable when administered to abused children. For example, the literature suggests that the Minnesota Multiple Personality Index (MMPI) psychological test does not yield valid results when administered to abuse victims. Secondly, the malingering aspect of the MMPI test is particularly problematic when this standard psychological test is administered to an individual who has been the victim of abuse as a child and young adult. Studies have shown that victimized children often show scores of 90 or greater on the malingering scale as a result of their victimization, not because of malingering in the standard psychological sense.

Because of the body of literature which demonstrates that standard psychological tests are not necessarily appropriate where there are allegations of a history of abuse, it is necessary for the prosecution to identify the tests Dr. Singer intends to administer in order for the defense to decide whether to participate in such a test procedure. Specification of the tests to be administered is necessary because if there are inappropriate psychological tests administered, then the psychological evaluation by Dr. Singer will be unreliable, and this in turn will affect any evaluation by Dr. Park Dietz.(14)

B. The Prosecution Has Not Provided Sufficient Information About the Scope of the Examination to be Conducted by Dr. Park Dietz

The prosecution proposes that Dr. Dietz conduct an "extensive psychiatric examination" of Erik and Lyle Menendez, and that such examination would "last[] approximately 20 hours each." There is further description of the examination as consisting of an interview"covering general information as well as observation of each defendant's affect and emotion, ability to think and reason, and gross assessment of each defendant's cognitive function." The prosecution has not offered any further information as to what Dr. Dietz proposes to talk about during the 20 hours he plans to spend with each brother. Conspicuously absent is any suggestion that Dr. Dietz will discuss Erik and Lyle Menendez' history of abuse at the hands of their parents. Another issue to be considered prior to any final decision on whether to allow Erik and Lyle Menendez to consent to the proposed psychiatric examination is the scope of such examination. The prosecution has in this case filed a number of motions aimed at limiting the scope of the defense expert testimony to be presented at the trial. See, e.g., People's Motion to Exclude Expert Opinion Concerning "Planning to Avoid Detection," People's Motion to Exclude Expert Testimony Criticizing the December ll Therapy Session with Dr. Oziel, and People's Motion to Exclude Testimony Concerning the Limbic System and the Theory of Genetic Recoding seeks to. If the prosecution seeks to so limit the scope of defense expert testimony, it could not then itself conduct a psychiatric evaluation of Erik or Lyle Menendez covering areas beyond the limits they now seek to impose on the defense. Therefore, it appears it may be necessary to resolve the issues of the prosecution's attempts to limit defense expert testimony prior to agreeing to any examination by prosecution expert.

C. Appropriate Conditions for Psychiatric Examination and Psychological Testing In order for Erik and Lyle Menendez to voluntarily agree to participate in the proposed examination and testing by the prosecution, the defense will seek to insure the integrity of the examination, interview and testing process.

The defense requests the opportunity to voir dire each of the prosecution's experts on the following issues:
l. Their qualifications to perform the tests or conduct interviews on the specific issues that the prosecution seeks to address.
2. Any biases that the expert might bring to the interviewing process.

This inquiry is necessary to determine the qualifications of the two individuals retained by the prosecution. In addition, because there has been a tremendous volume of pretrial publicity regarding the case, it is not unreasonable to expect that each of these experts may have followed the publicity that both preceded and postdated the first trial, and may have formed tentative opinions about one or both of the Menendez brothers, the defense or the defense experts as a result of their exposure to such publicity. The defense therefore requests the opportunity to probe such attitudes.

Further, the defense could only consent to testing and evaluation if the prosecution agrees that any results that they obtain by their psychological testing or psychiatric examination would not be used in their case-in-chief or in the penalty phase of this case. See Estelle v. Smith, 451 U.S. 461-69.

The defense will also request that the raw data obtained pursuant to any test procedures be scored by impartial third parties. Finally, we will ask that this Court order that all interviews of either Erik and Lyle Menendez, as well as all psychological testing, be recorded on videotape.


For the reasons set forth above, Erik Menendez and Lyle Menendez respectfully request that this Court deny the prosecution's motion to compel a psychiatric examination at the present time and require the prosecution provide the defense with the information requested in this response.

DATED: January 12, 1995

Respectfully submitted,

Leslie H. Abramson Marcia A. Morrissey
Attorneys for Defendant Erik Galen Menendez
By: /s/ Marcia A. Morrissey

Charles Gessler Terri Towery
Attorneys for Defendant Joseph Lyle Menendez
By:/s/ Charles Gessler


1 The prosecution filed a similar request, entitled "Notice of Motion to Compel Psychiatric Examination" (hereafter "Notice of Motion"), in October of 1993.

2 The prosecution notified counsel for the Menendez brothers of the identities of its experts in a two-page letter dated December 30, 1994.

3 In Estelle v. Smith, the United States Supreme Court held that the penalty phase admission of testimony from a psychiatrist who examined the defendant to determine his competence to stand trial violated his Fifth Amendment privilege against compelled self- incrimination because he was not advised prior to the psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at sentencing proceedings. 451 U.S. at 461-69.

4 Indeed, in Edney v. Smith "the only significant issue [at trial] was sanity. 425 F.Supp. at 1039

5 The New York statutory scheme is in many respects analogous to that set forth in California Penal Code section 1026, et seq.

6 Granviel's complaint before the Fifth Circuit was that the Texas sentencing statute, as applied in that case, violated his rights under the Eighth and Fourteenth Amendments because it did not allow the jury to consider as a mitigating factor at penalty phase evidence of his mental instability. 655 F.2d at 674.

7 The court in Granviel was careful to note that the expert who test:ified for the prosecution, a Dr. Holbrook, did not relate any statements made to him by Granviel, but testified only to his expert opinion on the issue of sanity derived from the psychiatric examination .

8 The prosecution's motion quotes a version of Section 12.2 of the Federal Rules of Criminal Procedure that is no longer in efflect. Motion to Compel at p.9. The present Section 12.2 of the Federal Rules of Criminal Procedure provides as follows:

Rule 12.2. Notice of Insanity Defense or Expert Testimony of Defendant's Mental Condition

(a) Defense of Insanity. If a defendant intends to rely upon the defense of insanity at the time of the alleged offense, the defendant shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, insanity may not be raised as a defense. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(b) Expert Testimony of Defendant's Mental Condition. If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of guilt, the defendant shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(c) Mental Examination of Defendant. In an appropriate case the court may, upon motion of the attorney for the government, order the defendant to submit to an examination pursuant to 18 U.S.C. 4241 or 4242. No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony.

(d) Failure To Comply. If there is a failure to give notice when required by subdivision (b) of this rule or to submit to an examination when ordered under subdivision (c) of this rule, the court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant's guilt.

(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under subdivision (a) or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.

9 Evidence Code 1016.

10. see, e.g., p.1, line 6, p.l, line 27, p.5, lines 23-24, p.8, line 8-9, p.ll, lines 5-27, p.13, lines 1-27.

1l See, e.g., the prosecution's Motion to Compel, at p.6, where it is urged that this Court should "order that the defendants submit to examinations now, rather than await such time as the defendants are willing to concede that they will offer mental state again."

12 See Opposition to People's Motion Pursuant to Evidence Code Section 1016, filed July 28, 1993.

13 The prosecution goes on to state that Dr. Singer is to administer psychological tests "covering the following areas:" (1) standard measures of intellectual functioning; (2) standard measures of cognitive functioning, including memory, spatial processing and language, test of concept formation and reasoning and motor ability; (3) measures of personality, mood and affect; (4) tests to detect a learning disability; and (5) tests to detect malingering.

14 The prosecution has stated that Dr. Dietz would rely upon testing by Dr. Singer in his psychiatric evaluation: Dr. Singer's testing would be utilized by Dr. Dietz in a psychiatric evaluation of the information that the defendants give him, and specifically her results will aid him in confirming, contradicting or raising questions concerning their state of mind at the time of the crime.

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