Jenkins v. United States

Decision Date12 April 1962
Docket NumberNo. 16306.,16306.
PartiesVincent E. JENKINS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

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Mr. Gerald Golin, Washington, D. C. (appointed by the District Court) for appellant.

Mr. Anthony G. Amsterdam, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., and Harry T. Alexander, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee. Messrs. Nathan J. Paulson and David J. McTague, Asst. U. S. Attys., also entered appearances for appellee.

Messrs. Arthur B. Hanson, Dean Farrington Cochran and Samuel J. L'Hommedieu, Jr., Washington, D. C., filed a brief on behalf of American Psychological Association, as amicus curiae, urging reversal.

Mr. Warren E. Magee, Washington, D. C., filed a brief on behalf of American Psychiatric Association, as amicus curiae, urging affirmance.

Before WILBUR K. MILLER, Chief Judge, EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting in banc.

On Rehearing in Banc.

BAZELON, Circuit Judge.

Appellant relied solely upon the defense of insanity in a jury trial which culminated in his conviction for house-breaking with intent to commit an assault, assault with intent to rape, and assault with a dangerous weapon. He alleges that the District Court erred in (1) determining his competency to stand trial, (2) excluding diagnostic opinions of two defense psychiatrists on the ground that their opinions were without "proper basis," (3) instructing the jury to disregard the testimony on three defense psychologists that appellant had a mental disease or defect on the ground that "a psychologist is not competent to give a medical opinion as to a mental disease or defect," and (4) depriving him of a fair trial by conducting a lengthy and disparaging examination of some expert witnesses.

I. The Facts

The record discloses the following pertinent information. After indictment, appellant was committed to the District General Hospital for a mental examination on September 4, 1959, to determine his competency to stand trial and his condition at the time of the alleged offense.1 Appellant was given a series of psychological tests on October 20 and 22, 1959, by staff psychologists under the supervision of the Chief Psychologist, Dr. Bernard I. Levy. Appellant scored 63, high moron, on the I.Q. section of the tests. He was also interviewed three or four times by Dr. Richard Schaengold, Assistant Chief Psychiatrist. Appellant's test performance and his "dullness and inability to relate correctly" led Dr. Schaengold to consider and reject the possibility of undifferentiated psychosis in favor of a diagnosis of mental defect: a basic, unchanging deficiency in brain function.2 His findings were confirmed by Dr. Mary V. McIndoo, District General's Chief Psychiatrist, on the basis of interviews on November 23, 24 and 25, and a review of appellant's history and test results. By letter of November 25, 1959, signed by Dr. Schaengold and countersigned by Dr. McIndoo, the District Court was advised that appellant was "suffering from an organic brain defect resulting in mental deficiency and impaired judgment. He is, therefore, psychotic, incompetent, and incapable of participating in his own defense." Appellant was adjudicated incompetent to stand trial on the basis of this report and was committed to "Saint Elizabeths Hospital until he is mentally competent to stand trial pursuant to Title 24, Section 301, District of Columbia Code, 1951 Edition, as amended August 9, 1955."

At St. Elizabeths, Dr. Lawrence Tirnauer, a staff psychologist, administered another battery of psychological tests on February 25 and March 2, 1960, in which appellant scored 74 on the I.Q. section. Dr. Tirnauer concluded that appellant was suffering from schizophrenia. Thereafter Dr. David J. Owens of St. Elizabeths interviewed appellant several times, "probably for fifteen or twenty minutes," and saw him at a staff conference on October 3, 1960. Dr. Owens found no evidence of mental disease or defect. He classified appellant as "a borderline intelligence." Dr. William G. Cushard, another psychiatrist at St. Elizabeths, who saw appellant at the staff conference, reviewed the test reports and agreed with Dr. Owens' findings. Dr. Margaret Ives, Chief Psychologist at St. Elizabeths, was also present at the staff conference. Subsequently, she reviewed Dr. Tirnauer's test results and appellant's past history and administered one part of a six-part Szondi profile test. She agreed with Dr. Tirnauer that appellant "had a mental illness by name of schizophrenia."

Ten days later, the Acting Superintendent of the Hospital notified the District Court that "it has been determined that he appellant is, at this time, mentally competent to stand trial and to consult with counsel and assist properly in his own defense. He is not suffering from mental disease * * *. Although he is not suffering from mental deficiency, he has only borderline intelligence." Upon appellant's objection to this report, the court conducted a hearing on November 4, 1960, wherein appellant was found competent and ordered to stand trial.

In preparation for their testimony at trial, Drs. McIndoo and Schaengold noted the later and different diagnosis and the apparent change in appellant's I.Q. reported by the St. Elizabeths psychologists. They requested Dr. Levy of their staff to re-test appellant in order to reconsider their diagnoses that he was mentally defective on June 10, 1959, the date of the alleged offenses. This time appellant scored 90 on the I.Q. test, an improvement inconsistent with mental defect. In reporting this result, Dr. Levy, who had previously been unable to make a diagnosis, concluded that upon review of all test data appellant "is psychotic and schizophrenic." Considering this report in the light of the hospital record and "reports" from St. Elizabeths, Drs. McIndoo and Schaengold revised their previous diagnoses without seeing appellant again. Dr. McIndoo concluded that appellant was schizophrenic, and Dr. Schaengold diagnosed his condition as undifferentiated psychosis.

II. Admissibility of the Psychiatrists' Opinions

The trial court, sua sponte, excluded the revised diagnoses of Drs. McIndoo and Schaengold and instructed the jury to disregard testimony of the three defense psychologists that appellant had a mental disease when he committed the crimes charged.

We discuss first the exclusion of Dr. Schaengold's testimony. After questioning him at great length about the basis of his revised opinion, the court ruled: "All I will allow is that in his opinion on June 10, 1959 the date of the alleged offenses, the defendant was mentally defective"; it excluded Dr. Schaengold's later diagnosis of mental illness because "there isn't any testimony here that is based on any proper evidence that he was suffering from a mental disease. I am not going to allow it on the basis of a report of a psychologist." The court gave no further explanation.

The Government suggests that the ruling rests on the familiar principle that an expert witness' knowledge of "basic facts" must be adequate to support his conclusion.3 It urges that the later psychological reports could not provide Dr. Schaengold with such information, "absent a personal re-examination of appellant," since thirteen months had elapsed between his personal examination of appellant and his revised diagnosis. The proposition seems to be that a psychiatric witness may not rely on psychological test reports unless he has considered them in conjunction with a contemporaneous personal examination. We are aware of no authority for such a rigid and artificial stricture.4

Dr. Schaengold, whose expert qualifications were unquestioned, testified that he could arrive at a valid diagnosis on the basis of an earlier examination and later test reports. The court must be deemed to have rejected this statement. We find no basis for such action. We think it clear that Dr. Schaengold's ability to make the revised diagnosis without conducting a personal re-examination presents a question for the consideration of the jury, under appropriate instructions, in assessing the weight of his testimony and not a question for the court upon which it may rest exclusion of the diagnosis as a matter of law.

It is at least as likely, however, that the court predicated its ruling on cases which bar an expert's opinion based upon facts not in evidence unless it is derived solely from his own observations.5 But we agree with the leading commentators6 that the better reasoned authorities admit opinion testimony based, in part, upon reports of others which are not in evidence but which the expert customarily relies upon in the practice of his profession.7 The Wisconsin Supreme Court has forcefully stated the policy underlying the application of this rule to medical testimony:

"In order to say that a physician, who has actually used the result of * * * tests in a diagnosis * * * may not testify what that diagnosis was, the court must deliberately shut its eyes to a source of information which is relied on by mankind generally in matters that involve the health and may involve the life of their families and of themselves — a source of information that is essential that the court should possess in order that it may do justice between these parties litigant.
"This court * * * will not close the doors of the courts to the light which is given by a diagnosis which all the rest of the world accepts and acts upon, even if the diagnosis is in part based upon facts which are not established by the sworn testimony in the case to be true" Sundquist v. Madison Ry., 197 Wis. 83, 221 N.W. 392, 393 (1928).

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