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Privilege against self-incrimination waived in second trial when defendant presented mental capacity defense at first trial.

The Pennsylvania Supreme Court has upheld the decision of the Superior Court that a defendant who voluntarily waived his 5th Amendment right against self-incrimination by presenting a mental capacity defense at his first trial opened the door to the Commonwealth's introduction of inculpatory statements at retrial, even though the defendant did not utilize the defense at his retrial. Commonwealth v. Rosen, 2012 Pa. LEXIS 965 (April 25, 2012).

The defendant was charged with first degree murder in the stabbing death of his wife and sentenced to life in prison. The defendant's wife had been stabbed to death in the early morning hours of June 30, 2001. The defendant initially claimed that two intruders in ski masks and parkas committed the murder. He later gave multiple explanations for the murder and ultimately admitted killing his wife, stating they were arguing and each had a knife. He said his wife swung the knife at him, he stabbed her in the chest, and she then plunged the knife into her own neck. At his jury trial in 2002, the defendant relied on the defense of diminished capacity. His expert psychiatrist testified that the defendant suffered from manic-depressive illness accompanied by psychotic features and paranoia. He testified that the defendant was psychotic and incapable of forming the intent to kill his wife. The Commonwealth's expert testified that the defendant had no mental disorder that would impair his capacity to form intent to kill his wife, relying on the fact that the wife planned to divorce him, that he delayed an hour in calling police and that he initially fabricated events. The jury convicted the defendant of first degree murder and the trial court sentence him to life in prison. The Pennsylvania Superior Court upheld the conviction and the Pennsylvania Supreme Court declined review.

The defendant then filed a post-conviction petition for relief alleging ineffective assistance of counsel for failure to call character witnesses that would have established that his mental instability prompted his actions and that he neither planned nor intended to kill his wife. The trial court conducted a hearing and dismissed his petition. The Superior Court reviewed the petition on appeal, reversed and remanded the case for a new trial. At retrial, the Commonwealth sought to introduce evidence of his mental stability presented by its expert at the original trial. The trial court ruled that since the defendant was not presenting mental infirmity as a defense on retrial, the Commonwealth could not present its expert psychiatric testimony as substantive evidence in its case in chief, but if the defendant testified on his own behalf, the Commonwealth could use the admissions of guilt contained in its expert's testimony as rebuttal evidence. The defendant waived his right to a jury trial and proceeded with a bench trial. The Court found him guilty and again sentenced him to life in prison.

The Superior Court affirmed the trial court. On appeal from the Superior Court, the Pennsylvania Supreme Court relied on the decision in Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995) in which the court held that the defendant's waiver of the psychiatric-patient privilege carries over to his retrial and on Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982), holding that if a defendant waives his 5th amendment privilege against self-incrimination and testifies at his first trial, his testimony is admissible at retrial even if he does not take the stand in the second trial. The Pennsylvania Supreme Court held that the two cases taken together support the admission of psychiatric testimony at the second trial. Once the privilege is waived, it is always waived, and no distinction need be made between the defense expert and Commonwealth's expert. Either side may therefore introduce substantive evidence admitted in the first trial in the second trial.

(i) In Virginia, community services boards are responsible for the delivery of publicly-funded local mental health services. Virginia Code [section][section] 37.2-500 and 37.2-601.

(ii) Virginia Code [section] 2.2-2001.1.
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Title Annotation:Recently Decided Cases
Publication:Developments in Mental Health Law
Date:May 1, 2012
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