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58. What is the strongest basis for a defense objection to the psychologist's testimony regarding the defendant's mental state?
After a defendant was indicted on federal bank fraud charges and released on bail, his attorney filed notice of the defendant's intent to offer an insanity defense. The prosecutor then enlisted the help of a forensic psychologist who was willing to participate in an «undercover» mental examination of the defendant. The psychologist contacted the defendant and pretended to represent an executive personnel agency. She told the defendant about an attractive employment opportunity and invited him to a «preliminary screening interview» to determine his qualifications for the job. As part of the purported screening process, the psychologist gave the defendant psychological tests that enabled her to form a reliable opinion about his mental state at the time of the alleged offense.
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C is correct. Because the defendant's right to counsel attached upon being indicted, he had a Sixth Amendment right to counsel going forward during all critical stages of the proceedings. The prosecution coordinated an effort to deliberately and covertly elicit statements by the defendant without giving him access to his attorney, absent a valid waiver, in violation of his Sixth Amendment right to have counsel present.
A is incorrect. The Fourth Amendment applies to unreasonable searches and seizures, which typically occur before the defendant is charged when the police are investigating the crime. The Fourth Amendment does not apply to the government's efforts to obtain confessions from criminal defendants post-indictment.
B is incorrect. The Fifth Amendment protects criminal defendants from being compelled to give self-incriminating testimony. Although the privilege against self-incrimination forbids the admission of evidence based on a psychiatric interview of a defendant not warned of his right to remain silent, it is not directly applicable to this case, where the government specifically used deception to obtain a suspect's otherwise voluntary admissions.
D is incorrect. Despite the fact that federal common law does ensure that communications between a psychiatric professional and patient are confidential, that privilege is related to obtaining psychiatric services. By contrast, the facts here do not support applying this rule because the government used deception to covertly evaluate the defendant without his knowledge that he was being evaluated, without counsel present.