The opinion of the court was delivered by: LEGGE
At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
The court has read the parties' papers and finds that there is reasonable cause to grant defendant's motion for a competency hearing under the standard above, and to order a competency examination by an expert.
The parties disagree on what use may later be made at trial of defendant's statements elicited in the course of the competency examination. The government preliminary contends that any ruling by this court on that issue is now premature, because no evidence yet exists which the government might want to use. However, a witness seeking the protection of the Fifth Amendment privilege against self-incrimination must assert the privilege before he testifies in order to avoid waiving it. United States v. Kordel, 397 U.S. 1, 7-10, 25 L. Ed. 2d 1, 90 S. Ct. 763 (1970). Nguyen has reasonably established that he would incriminate himself during a competency examination. Therefore this court should rule before the examination on what use the parties may make of Nguyen's statements so that defendant may decide whether to make statements.
I. Statutory Bases for Exclusion of Defendant's Statements
Nguyen seeks the protection of Federal Rule of Criminal Procedure 12.2(c) for his statements. That rule provides:
In an appropriate case the court may, upon motion of the attorney for the government, order the defendant to submit to an examination pursuant to 18 U.S.C. 4241 or 4242. No statement made by the defendant in the course of any examination provided for by this rule whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such testimony, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony.
On its face, this rule applies only if the motion for the examination of the defendant is made by "the attorney for the government." Defendant Nguyen urges that, properly read in the context of its history of amendment and the legislative history of 18 U.S.C. § 4244, the rule also applies to motions by the defense. This court disagrees.
Prior to 1984, 18 U.S.C. § 4244 provided defendants a large part of the exclusionary protection that Nguyen now seeks:
No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
In 1984, however, Congress enacted the Insanity Defense Reform Act, which includes present 18 U.S.C. §§ 4241 - 4247. Although the legislative history to that Act states that new section 4247(g) codifies the provisions of old section 4244 regarding statements made by a defendant during the course of an examination, this is not in fact the case. The provisions of old section 4244 have not been carried forward into the new Act, and the new Act is silent on the issue of exclusion which old section 4244 addressed. It is unclear whether this was an unintentional omission, or was a late change not reflected in the legislative history.
Nguyen nonetheless argues that by this change the Committee intended to extend to defendants undergoing competency examinations pursuant to 18 U.S.C. § 4241 the protections that Congress had withdrawn in the 1984 Insanity Defense Reform Act, and that the Committee only accidentally left in the language restricting Rule 12.2(c)'s availability to motions made by the ...