Should the Privilege Against Self-Incrimination Apply to Compelled Psychiatric Examinations?

Publication Title

Stanford Law Review


privileged communications, psychiatric examinations, self-incrimination

Document Type



The purpose of this Article is to evaluate the arguments that have been made by judges and legal commentators regarding the applicability of the privilege to compelled psychiatric examinations and to suggest an alternative analysis. As necessary background, a brief description of the psychiatric examination itself will first be given. After discussion of the policies underlying the privilege against self-incrimination, the arguments favoring application of the privilege will be examined. Reasons that have been given for excepting psychiatric interviews from the scope of the privilege will then be analyzed. The Article will show that these traditional arguments, as exemplified particularly by a group of recent, significant cases, fail to reflect adequately the needs of either society or the mentally ill. Finally, the Article will outline an alternative analysis that does take these interests into account. It will be shown that in certain instances, most notably when an individual is to be institutionalized but not treated, the privilege should be applied. On the other hand, when substantial efforts toward treatment are being made or when the defendant has waived the privilege by entering an insanity plea, these competing interests can be reconciled without resort to application of the privilege.

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