704-416 Statements for purposes of examination or treatment inadmissible except on issue of physical or mental condition. A statement made by a person subjected to examination or treatment pursuant to this chapter for the purposes of such examination or treatment shall not be admissible in evidence against the person in any penal proceeding on any issue other than that of the person's physical or mental condition, but it shall be admissible upon that issue, whether or not it would otherwise be deemed a privileged communication, unless such statement constitutes an admission of guilt of the offense charged. [L 1972, c 9, pt of 1; gen ch 1993]

 

Cross References

 

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

 

COMMENTARY ON 704-416

 

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]

 

Case Notes

 

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 (1987).

Overrides Hawaii rules of evidence rule 702.1. 71 H. 591, 801 P.2d 27 (1990).

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 (1992).

Because the plain language of this section does not address non-statements, and because an ordinary reading of the statute does not produce an absurd result, this section does not govern non-statements. 116 H. 200, 172 P.3d 512 (2007).

Trial court did not err in permitting prosecution to cross-examine defendant regarding defendant's non-statements to defendant's mental examiners where defendant's failure to mention defendant's concerns regarding aliens was clearly relevant to the question of whether defendant was being truthful when defendant testified at trial about having those concerns at the time of the incident, and this section only addresses the admissibility of defendant's statements, not non-statements; thus, as the introduction of defendant's non-statements did not violate this chapter, defendant's right to a fair trial was not prejudiced by admission of the testimony. 116 H. 200, 172 P.3d 512 (2007).

 

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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).

 

 

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