In Estelle v. Smith, 451 U.S. 454 (1981), a defendant in a murder trial was ordered by the trial court to undergo psychiatric evaluation in order to determine if he was fit to stand trial. Once convicted, the same psychiatrist who examined the defendant before trial testified against him. Id. at 458-60. The Court held that "a criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Id. at 468. In Estelle v. Smith, the trial judge ordered a psychiatric examination of the defendant to determine whether he was competent to stand trial. Smith, 451 U.S. at 456-457. The defendant was in custody at the time. Id. at 467. As a witness for the State in the punishment phase of trial, the psychiatrist expressed opinions tending to show that the defendant was a future danger to society. Id. at 458-459. The Supreme Court held that the testimony violated the defendant's Fifth Amendment right against self-incrimination because he was not given Miranda warnings before he made statements in the interview that were ultimately used by the psychiatrist to form opinions about the defendant's future dangerousness. Id. at 467-469. The Court also found a violation of the Sixth Amendment's right to counsel because criminal proceedings had already been initiated by indictment, the defendant was represented by an attorney, and defense counsel was not notified that the psychiatric interview would encompass the issue of the defendant's future dangerousness. Id. at 469-471. The Supreme Court ruled that testimony by a government psychiatrist that the defendant was a dangerous person, which was based upon a court ordered interview of the defendant which was neither requested nor consented to by the defendant, violated the defendant's Fifth Amendment rights. In Smith, the defendant did not present a mental status defense or present any expert testimony. The United States Supreme Court observed, however, that (id. at 465) "Nor was the interview analogous to a sanity examination occasioned by a defendant's plea of not guilty by reason of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist." The Supreme Court found that the defendant's right to counsel attached at the time the trial judge informally ordered the state's attorney to arrange a psychiatric examination to determine whether he was competent to stand trial, which the court described as a " 'critical stage' of the aggregate proceedings" against him. ( Id. at p. 470 101 S. Ct. at p. 1877.) The court found that the Sixth Amendment was violated because defense counsel "were not notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness, and respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed." ( Id. at p. 471 101 S. Ct. at p. 1877, ) At the time the defendant had to make the critical and extraordinarily complex determination whether to assert his Fifth Amendment privilege, he was "without 'the guiding hand of counsel.' " (Ibid.) The high court ruled that the Fifth Amendment privilege against self-incrimination is generally applicable to custodial mental competency examinations, and specifically discussed the provision of immunity for statements made during such examinations. ( Estelle v. Smith, supra, 451 U.S. at pp. 466-469 68 L. Ed. 2d at pp. 371-373.) The competency examination in Estelle was initiated sua sponte by the court, not by the defendant, who never introduced psychiatric evidence or indicated he might do so. At the penalty phase, the state used information obtained from the court-ordered competency examination as affirmative evidence to persuade the jury to return a sentence of death. The United States Supreme Court found a Fifth Amendment violation because "the State used respondent's own statements, unwittingly made without an awareness that he was assisting the State's efforts to obtain the death penalty." (451 U.S. at p. 466.) Estelle holds that "a criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." ( Id. at p. 468 101 S. Ct. at p. 1875, ) The court also stated that if the defendant had been warned his statement to the psychiatrist could later be used against him at trial and he refused to answer the psychiatrist's questions, "the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose." (Ibid.) Stating the proposition differently, the court made it clear that if the information obtained by the psychiatrist during the inquiry into competency "had been confined to serving that function, no Fifth Amendment issue would have arisen." ( Id. at p. 465 101 S. Ct. at p. 1874.) In Estelle v. Smith, the United States Supreme Court held that a criminal defendant has a Fifth Amendment right to decline to participate in a psychiatric examination to the extent that: (1) the results of the examination are to be introduced by the State either to prove the defendant's guilt or to enhance the defendant's sentence, and; (2) the psychiatric evaluation will be based on the defendant's statements elicited during the examination. (451 U.S. at 461-66.)