6.2 Proceedings in Which the Privilege May Be Asserted

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

6.2 PROCEEDINGS IN WHICH THE PRIVILEGE MAY BE ASSERTED

6.201 In General. Notwithstanding the actual phrasing of the constitutional privilege, the privilege may be asserted in any governmental inquiry, ⁹ whether of a judicial ¹⁰ or legislative ¹¹ nature, as long as the privilege is otherwise applicable. ¹² In Miranda v. Arizona, ¹³ the privilege was

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extended to pretrial custodial interrogation. ¹⁴ Two areas that have proven troublesome, however, are the applicability of the privilege to pretrial discovery against the defense and the applicability of the privilege to court-ordered psychiatric examinations of the defendant.

6.202 Pretrial Discovery. The privilege against self-incrimination only becomes applicable in pretrial discovery when the prosecution seeks to have the defense disclose information relevant to the pending case, usually information such as an alibi defense and the place at which the defendant claims to have been at the time of the offense. ¹⁵ Since this information is likely to have to come from the defendant, the privilege would seem to be applicable. The Supreme Court, however, has held that rules requiring such disclosure are constitutional ¹⁶ as long as the prosecution has a reciprocal discovery obligation. ¹⁷ The Court has also ruled that, under appropriate circumstances, the trial court may exclude the testimony of defense witnesses (but not the testimony of the defendant) for intentional violations of the requirement of advance notice. ¹⁸

6.203 Psychiatric Examinations. There is a particular problem concerning psychiatric examinations ordered, either at the prosecution's request or sua sponte by the court, to determine whether a defendant was sane at the time of an offense or whether the defendant is competent to stand trial. Because of the nature of such a psychiatric inquiry, it is highly likely that the accused will be asked (and will answer) questions bearing on the offense for which he or she is to stand trial. Yet, to allow the accused to avoid such inquiry while raising a defense of insanity would place the Commonwealth in a difficult if not fatal tactical position. The general rule that has evolved to resolve this conflict is that the defendant is deemed to have made a partial waiver of the privilege against self-incrimination by raising a defense of insanity and that this waiver permits the court's (or prosecution's) psychiatric inquiry. However, as a general matter, the examining doctor is

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limited at...