Impeaching with what was NOT said.

State v. Plichta (HSC Nov. 30, 2007)

Plichta stripped down a car in a parking lot with a hatchet one morning near Sand Island. After being confronted by the owner of the car, dousing him with pepper spray, trying to flee, and spray the police, he was apprehended. He told the police that they were in big trouble because he was the President of the United States, the chief of police, and part of an international agency.

Plichta’s defense counsel was preparing to go with the insanity defense and filed a motion for a three-doctor panel pursuant to HRS § 704-404. The circuit court granted the motion and three doctors examined Plichta to determine whether he was competent for trial and whether he was legally insane. Three doctors interviewed him and their reports were given to the parties and the court. At no time during the interview did Plichta talk about his belief that he was being chased by extra-terrestrial life.

At trial Plichta’s lawyer argued that at the time of the incident, he was under the belief that the police were humanoids from outer space who wanted to kill him. Over Plichta’s objection, the State cross-examined the doctors about whether Plichta told them about aliens. Plichta testified about his unconventional worldview and again the State cross-examined him about whether he told the doctors about the aliens. Plichta’s counsel then requested a motion to withdraw because she would have to testify that before undergoing the medical examinations, Plichta told her that he believed the police were aliens. Counsel also moved for a mistrial. Both motions were denied. Plichta was found guilty of all, but one, counts and was sentenced for almost 20 years. The ICA affirmed; Plichta appealed.

Statements Are Inadmissible, But Non-Statements are Not Implicated in HRS § 704-416. When doctors are appointed to determine penal responsibility (the new way of saying legally insane), HRS § 704-416 provides that a “[s]tatement made by a person subjected to 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 . . . unless such statement constitutes an admission of guilt[.]” The majority of the HSC held that under the plain language of the statute, a person’s omissions are not “statements” and, thus, the statute is not implicated. A “statement,” explained the majority, is an intentional assertion. An omission, or rather, what the defendant does not say, is not an assertion.

This is Not Absurd. The majority further held that the statute does not lead to an absurd result. The purpose of HRS § 704-416 is to protect a defendant’s right against self-incrimination and ensure confidence during the examination. Omissions, since they are not statements, cannot be incriminating.

The Non-Statements Are Admissible. The majority concluded that the non-statements were relevant to whether he was being truthful when he testified that he held these beliefs on direct. Moreover, the probative value for impeachment was not outweighed by prejudice under HRE Rule 403. Thus, there was no error in allowing the cross-examination and no error in denying the motion for mistrial.

Stick It Out, Counsel. The HSC also held that the circuit court did not err in denying the motions to withdraw. The kind of withdrawal here is not mandatory and thus is left to the court’s discretion. The HSC examines factors: the significance of the matters the lawyer may testify, whether alterative witnesses are available, and the timeliness of the motion are some. Here, one of the doctors would have been an alternative witness about the aliens, and that the motion was untimely because counsel was aware of this issue before trial.

Justice Acoba’s Dissent (Justice Duffy Joins). Justice Acoba objected to the majority’s HRS § 704-416 analysis. The defendant has really no choice but to answer the doctors’ questions, and cannot avoid examination. Justice Acoba does not object to the plain language of the statute being silent on the non-statements. That said, “silence as to unmade statements does not invariably sanction admission of the failure to make a particular statement into evidence for impeachment purposes.”

The holding of the majority dramatically changes the medical examination. It “opens up a universe of possible inquiries that [the Defendant] would have had to prepare for and to speculate upon prior to examination.” It turns the medical examination into adversarial questioning. Moreover, to rebut possible impeachment, the Defendant would be pressed to give more information than called upon by the doctors.


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