Can Inculpatory Statements During a Pretrial Psychiatric Examinations Be Used for Impeachment Purposes ?

In People v. Barber (114 Misc 2d 409 [Sup Ct, Erie County 1982]), the court found that inculpatory statements made by the defendant during a pretrial psychiatric examination could be used for impeachment purposes as prior inconsistent statements, if the defendant chose to testify, and even though he had abandoned his defense of lack of criminal responsibility by reason of mental disease or defect. This the court found, despite the language of CPL 60.55 (2) which provides statements to the psychiatrist or psychologist "shall be inadmissible ... on any issue" other than that of such defense. The question, said the court, is one of interpretation of the Legislature's intent. "To construe the word issue in a manner tending to sacrifice or prejudice the public interests in maintaining judicial process as a truth-finding mechanism is to be avoided unless it clearly appears that the Legislature intended such a result (see McKinney's Cons Laws of NY, Book 1, Statutes, 152)." (Supra, at 410.) There being doubt of the legislative intent, the court allowed the People to use the statements for impeachment purposes, preserving the rights of appellate review. Barber's utility in the within matter, however, lies as much in its difference as in its similarity. CPL 60.55 only applies if the defense is one of lack of criminal responsibility by reason of mental disease or defect (Penal Law 40.15). No comparable statute exists when, as here, the notice was one for extreme emotional disturbance. Here, by its failure to act, the Legislature clearly did not wish to "sacrifice or prejudice" the "truth-finding mechanism" of the "judicial process." ( People v. Barber, supra, at 410.)