HRS 0704-0416 ANNOTATIONS

Physician-patient privilege, psychologist-client privilege, see §626-1, rules 504 and 504.1.

The Code takes the position that statements made by the defendant to an examiner in the course of an examination under this chapter should be admissible in penal proceedings on the issue of the defendant's physical or mental condition notwithstanding any privilege which might be imported from the law of evidence.[1] However, "to safeguard the defendant's rights and to make possible the feeling of confidence essential for effective psychiatric [and other medical] diagnosis or treatment, the defendant's statements made for this purpose may not be put in evidence on any other issue,"[2] e.g., whether the defendant in fact engaged in the proscribed conduct, in penal proceedings.

The final clause of this section provides that any statement made for the purpose of examination and treatment pursuant to this chapter, which constitutes an admission of guilt of the offense charged, in addition to being inadmissible on other issues, will also not be admissible in evidence on the issue of defendant's mental or physical condition. The intent of the Code is to meet two problems: (1) the inability of a jury to divorce a statement containing an admission of guilt from the determination of all issues, and (2) an objection to the examination of the defendant on the basis of defendant's privilege against self-incrimination.[3]

Error to admit defendant's statement to physician to attack defendant's credibility; cannot be said error harmless. 69 H. 68, 733 P.2d 690.

Overrides Hawaii Rules of Evidence Rule 702.1. 71 H. 591, 801 P.2d 27.

Statements not prejudicial where elicited to show declarant's emotional state and no objection made by declarant's counsel. 74 H. 141, 838 P.2d 1374.

§704-416 Commentary:

1. See H.R.S. §621-20.5, which also limits the physician-patient privilege to civil proceedings.

2. M.P.C., Tentative Draft No. 4, comments at 201 (1955).

3. See M.P.C. §4.09, notes at 78 (1962).