United States ex rel. Edney v. Smith

Decision Date24 November 1976
Docket NumberNo. 76-C-1289.,76-C-1289.
Citation425 F. Supp. 1038
PartiesUNITED STATES of America ex rel. Herbert EDNEY, Petitioner, v. Harold SMITH, Superintendent, Attica Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

Denis Dillon, Dist. Atty. of Nassau County, for respondent; William C. Donnino, Robert N. Zausmer, Mineola, N. Y., of counsel.

James J. McDonough, Legal Aid Society, Mineola, N. Y., for petitioner.


WEINSTEIN, District Judge.

Petitioner seeks a writ of habeas corpus. 28 U.S.C. § 2254. He was found guilty in a New York State court of the kidnapping and killing of the eight-year-old daughter of his former girlfriend. People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976). His claim now is that the State violated his federal constitutional rights by calling a psychiatrist who had interviewed petitioner before trial at his counsel's request. While the rules of privilege relied upon by petitioner are preferred, they are not constitutionally mandated. For the reasons detailed below the petition must be denied.


At the trial the only significant issue was sanity. A defense psychiatrist testified that defendant, as a result of mental illness, was unaware of the nature and quality of his acts and did not know that his acts were wrong. In rebuttal, the prosecution called Dr. Daniel Schwartz, a psychiatrist, who had examined defendant at the request of defendant's attorney. The attorney had not been present during the examination. The defense objected on the grounds of the attorney-client and physician-patient privileges. Dr. Schwartz found no evidence of an underlying disease or defect. It was his opinion that at the time of the murder defendant knew and appreciated the nature of his conduct and knew that his conduct was wrong. Another psychiatrist for the prosecution supported the conclusions of Dr. Schwartz. Additional psychiatrists, produced by the defense, were unable to form opinions as to whether defendant knew or appreciated the nature of his acts, or whether such acts were wrong, although they did agree that defendant had some form of mental illness.

The jury found the petitioner guilty and he was sentenced to 25 years to life. He appealed, chiefly on the ground that the admission of Dr. Schwartz's testimony over objection was reversible error. The Appellate Division unanimously affirmed. 47 A.D.2d 906, 366 N.Y.S.2d 219 (1975). Its order was in turn affirmed by the Court of Appeals, 39 N.Y.2d 620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976).

The State's highest court, in a full opinion, with one judge dissenting, discussed the privilege issue. It held that where the defense of insanity was asserted and the defendant offered evidence to establish the claim, a waiver of privileges was effected. Under such circumstances, it concluded, the prosecution could call a psychiatric expert who had examined the defendant at his attorney's request.

The sole issue before this court in this habeas corpus proceeding is whether the admission of Dr. Schwartz's testimony violated petitioner's federal constitutional rights. Petitioner anchors his constitutional claim primarily to the Sixth Amendment guarantee of effective assistance of counsel. He argues that unless the communications of a defendant to a psychiatrist are protected by either the physician-patient or attorney-client privilege an accused, fearing revelation of these communications to the State will not be candid with the psychiatrist. This will, in turn, impede the lawyer's ability to present the effective defense guaranteed by the Constitution. Thus, his argument goes, by necessary implication, either the attorney-client or physician-patient privilege is, to the extent indicated by the facts of this case, embodied in the Sixth Amendment.


The physician-patient relationship, unlike that of attorney-client, did not give rise to a testimonial privilege at common law; a physician called as a witness had a duty to disclose all information obtained from a patient. See generally 8 Wigmore, Evidence §§ 2380-2391 (McNaughton rev. 1961). In 1828 New York became the first jurisdiction to alter the common-law rule by establishing a statutory privilege. N.Y.Rev.Stat. 1828, 406 (pt. 3, ch. 7, Tit. 3, Art. 9, § 73). Since that time approximately three-quarters of the states have followed New York's lead and enacted similar statutory provisions. 8 Wigmore, Evidence § 2380 (McNaughton rev. 1961).

Legal scholars have been virtually unanimous in their condemnation of these legislative attempts to foster the doctor-patient relationship by rules of exclusion. See, e. g., 8 Wigmore, Evidence § 2380a at 831-32 (McNaughton rev. 1961); Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 10 U.Chi.L. Rev. 285, 290-92 (1943); Slovenko, Psychotherapy, Confidentiality, and Privileged Communication 20-24 (1966). They repeatedly argue that while the adverse impact of the privilege on the fact-finding function of the courts is immediate and unquestionable, empirical evidence of the alleged benefits of the privilege is speculative at best and more realistically non-existent. Professor Chafee's well-known criticism is typical:

The reasons usually advanced for extending the privilege of silence to the medical profession are not wholly satisfactory. First, it is said that if the patient knows that his confidences my be divulged in future litigation he will hesitate in many cases to get needed medical aid. But although the man who consults a lawyer usually has litigation in mind, men very rarely go to a doctor with any such thought. And even if they did, medical treatment is so valuable that few would lose it to prevent facts from coming to light in court. Indeed, it may be doubted whether, except for a small range of disgraceful or peculiarly private matters, patients worry much about having a doctor keep their private affairs concealed from the world. This whole argument that the privilege is necessary to induce persons to see a doctor sounds like a philosopher's speculation on how men may logically be expected to behave rather than the result of observation of the way men actually behave. Not a single New England state allows the doctor to keep silent on the witness stand. Is there evidence that any ill or injured person in New England has ever stayed from a doctor's office on that account?
The same a priori quality vitiates a second argument concerning the evils of compelling medical testimony, namely, that a strong sense of professional honor will prompt perversion or concealment of the truth. Has any member of the numerous medical societies in New England observed such a tendency among New England doctors to commit perjury for the sake of "professional honor"?

Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale L.J. 607, 609-10 (1943).

Legal practice in the states which have adopted a general medical privilege confirms the criticism of the commentators. Although no state has repealed the privilege once it has been adopted, recognition of its undesirable effects has led to judicial and legislative whittling away so that its scope has been considerably reduced. Numerous nonuniform exceptions have evolved which have rendered the privilege "substantially impotent," Comment, Federal Rules of Evidence and the Law of Privileges, 15 Wayne L.Rev. 1286, 1324 (1969), and difficult to administer.

In the federal sphere awareness of these difficulties led the Advisory Committee on the Federal Rules of Evidence to omit any provision for a general physician-patient privilege. It noted that:

while many states have by statute created the privilege, the exceptions which have been found necessary in order to obtain information required by the public interest or to avoid fraud are so numerous as to leave little if any basis for the privilege.

Advisory Committee's Note to Proposed Rule 504, 56 F.R.D. 183, 241-242 (1972).

These extensive criticisms bear strongly on whether the states and federal government are subject to constitutional pressures to afford protection to physician-patient communications. It is implausible that a privilege that has almost uniformly been found to be practically undesirable and burdensome should nonetheless be constitutionally compelled. Nonetheless, it has been suggested that the doctor-patient relationship, even absent statutorily privileged status, is entitled to constitutional protection. Thus, in criticizing the absence of a general doctor-patient privilege in the proposed Federal Rules of Evidence, Professor Charles L. Black, relying on the right to privacy, eloquently declared:

There is something very important at stake in these Rules of Evidence. At several points they give major aid and comfort to that diminishment of human privacy which is one of the greater evils of our time, thus raising not only prime questions of value, but also questions of constitutional law which could never have been dismissed as trivial, but which are even more plainly substantial in the light of such recent decisions as Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). . . . The question here is not only whether people might be discouraged from making full communication to physicians, though it seems flatly impossible that this would not sometimes happen — a consideration which would in itself be enough to make incomprehensible the absolute subordination of this privacy interest to any trivial interest arising in litigation. But evaluation of a rule like this entails not only a guess as to what conduct it will motivate, but also an estimate of its intrinsic decency. All of us would consider it indecent for a doctor, in the course, say, of a television interview, or even in a textbook, to tell all he knows, naming names, about patients who have been treated

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