Maraman v. State

• Decision Date: 25 January 2008
• Docket Number: No. 2D06-3701.,2D06-3701.
• Citation: 980 So.2d 1096
• Court: Florida District Court of Appeals
• Parties: Sylvia MARAMAN, Petitioner, v. STATE of Florida, Respondent.

980 So.2d 1096

Sylvia MARAMAN, Petitioner, v. STATE of Florida, Respondent.

No. 2D06-3701.

District Court of Appeal of Florida, Second District.

January 25, 2008.

Rehearing Denied May 19, 2008.

Bob Dillinger, Public Defender, and Violet M. Assaid, Assistant Public Defender, Dade City, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

Sylvia Maraman has raised an insanity defense to a pending charge of second-degree murder. In this certiorari proceeding she asks us to quash an order refusing to allow the videotaping of her court-ordered sanity examination. We grant the petition.

On the State's motion, the circuit court directed Maraman to submit to an examination by Dr. Jamie Barron, a clinical psychologist. Maraman appeared at Dr. Barron's office with her attorney and an investigator who planned to videotape the examination. Dr. Barron objected to the videotaping and refused to proceed. As a result, the State moved to strike Maraman's insanity defense, asserting that she had thwarted the State's ability to have an independent doctor evaluate her. Defense counsel responded with a motion to permit the examination to be videotaped.

The circuit court held an evidentiary hearing at which the defense presented testimony from Dr. Robert Berland, a forensic psychologist who practices in the criminal setting. Dr. Berland worked at the Florida State Hospital for seven years. He now has a full-time private practice in which he devotes the majority of his time to pretrial and postconviction proceedings in capital cases.

Dr. Berland testified that he has conducted many examinations that were videotaped and that he favors the practice. He observed that videotaping mental examinations is useful in evaluating the examiner's conclusions because a consulting expert reviewing the videotape may discover that no questions were asked in an important area or that the questions asked were of a type known by research to be ineffective. He further explained that this process was far more effective than attempting to review the examination based on a second-hand report by an attorney who attended it; lacking training or credentials in the mental health field, the attorney likely would not recognize or report many salient details.

Dr. Berland knew of no ethical prohibitions against videotaping examinations. He was unaware of any research that found the practice to be disruptive, although he acknowledged on cross-examination that the presence of a third-party observer can create potential for distraction or interruption. Even so, he noted that examinations in the criminal setting are prone to many potential contaminants, beginning with the fact that court-ordered examinations are inherently coercive. Dr. Berland observed that examinations in jails or prisons are not performed in sterile environments. He has conducted examinations in which guards were present, in which loud noises could be heard, and in which the subject defendants were in physical restraints. He stated that the tests employed in such examinations must be robust enough to withstand these and other contaminants and that different sources of information must be considered to reach valid findings.

The State presented testimony from Dr. Barron, the appointed expert in the case. She opposed the attendance of any third parties at examinations, citing concerns about the impact on the validity of the results and about the release of test questions that are used. Indeed, although Florida Rule of Criminal Procedure 3.216(d) allows for attendance by defense counsel and the prosecutor at sanity examinations, Dr. Barron would prefer that they did not attend, either. She referred generally to research showing that attendance by third parties may skew examination results.

Following the hearing the circuit court denied the motion to videotape. In a written order the court noted that, whereas rule 3.216(d) provides that attorneys for the state and defendant may be present at a court-ordered sanity examination, "[t]he rule does not say that the examination may be video taped over the objection of the examiner." This reasoning was faulty, as can be seen when examining the corresponding rule in civil cases.

Unlike the rule of criminal procedure permitting the attendance of counsel at court-ordered mental examinations, the rule governing compulsory examinations in civil cases makes no express provision for the attendance of anyone other than the examiner and the subject. Yet, case law provides that parties in civil cases are generally entitled to have their attorneys and court reporters or videographers attend both physical and mental examinations unless there are good reasons for excluding them. See, e.g., U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla. 2000) (holding that insured seeking PIP benefits was entitled to have attorney or videographer present at examination absent valid reason for exclusion); Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 2d DCA 1997) (holding that, absent reason for exclusion, personal injury plaintiff was entitled to have court reporter present at physical exam and "[t]here is no reason that the presence of a videographer at an examination should be treated differently"); Toucet v. Big Bend Moving & Storage, Inc., 581 So.2d 952 (Fla. 1st DCA 1991) (finding departure from essential requirements of law in order excluding plaintiff's attorney from exam); Gibson v. Gibson, 456 So.2d 1320 (Fla. 4th DCA 1984) (holding that wife was entitled to presence of court reporter at psychiatric exam).

This right to the presence of others at a compelled examination appeared in the opinion by then Chief Judge Anstead in Gibson, 456 So.2d 1320. In that case, the court granted certiorari relief and quashed a trial court order that authorized the attendance of counsel at a court-ordered psychiatric examination but denied the examinee's request to have a court reporter present. Judge Anstead wrote that the petitioner should have the right "to preserve by objective means the precise communications that occur during the course of the examination," and he noted that "[b]oth the examiner and patient should benefit by the objective recording of the proceedings, and the integrity and value of the examination as evidence in the judicial proceedings should be enhanced." 456 So.2d at 1321. Gibson also noted that the examination implicated the petitioner's privacy, not the examiner's, such that the petitioner should be entitled to ensure that the intrusion was accurately preserved. 456 So.2d at 1321. Notably, Gibson did not derive its ruling from the rules of civil procedure; it relied on the dissenting view in Edwards v. Superior Court, 16 Cal.3d 905, 130 Cal.Rptr. 14, 549 P.2d 846, 849 (1976).

The State argues that this right is established only in the civil arena and it should not be extended to criminal cases. The supreme court rejected a similar argument in Cimino, 754 So.2d 697, in which an insurer argued that the right to the presence of an attorney or videographer had been established only in regard to examinations conducted pursuant to rule 1.360 and in workers' compensation cases but not to examinations of PIP insureds conducted pursuant to insurance statutes and policy provisions. Nevertheless, the court approved the holding of the First District that an insured who had claimed PIP benefits under her insurance policy was entitled to have her attorney or videographer present at an independent medical examination demanded by the insurer.

"It is well established that Florida follows a liberal view when determining whether attorneys may attend examinations," the court wrote. 754 So.2d at 701. "As a result, the First District concluded the burden should fall on the insurer to exclude an observer. We agree with this approach." Id. at 700-01 (citing Broyles, 695 So.2d at 834) (footnote omitted). The court could find no reason to treat PIP examinations differently than examinations under rule 1.360 or in workers' compensation cases. "Because the potential is there for an adversarial contest, the insured should be afforded the same protections as are afforded to plaintiffs for rule 1.360 and workers' compensation examinations." Id. at 701; see also Bartell v. McCarrick, 498 So.2d 1378, 1380 (Fla. 4th DCA 1986) (citing cases from foreign jurisdictions that describe adversarial nature of such examinations and noting that the opposing party's doctor "is not necessarily a disinterested, impartial medical expert").

Cases such as Gibson and Cimino demonstrate that Florida's liberal policy governing the attendance of third persons at examinations in adversarial settings is doctrinal; it is not limited to the specific terms of court rules, statutes, or insurance policy provisions, which may or may not address the question. We find no precedent or basis in the law for bestowing the protection of this doctrine only on civil claimants. To the contrary, the potentially adversarial nature of a court-ordered mental examination in a criminal case is self-evident, and the stakes — the defendant's liberty interests — are far higher than a civil litigant's monetary concerns. And, indeed, in one of the only cases addressing this issue in the criminal context, the First District found no basis for certiorari relief when the trial court denied a defense request to have his expert attend a neuropsychological exam, but its decision was without prejudice to a defense request on remand to...