# FILED
June 9, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION Filed: June 9, 1997 STATE OF TENNESSEE, ) ) Appellee, ) KNOX CRIMINAL ) ) Vs. ) HON. RICHARD BAUMGARTNER, ) JUDGE ) DAVID PAUL MARTIN, ) ) Appellant. ) No. 03-S-01-9604-CR-000 40

For Appellant: For Appellee: Herbert S. Moncier John Knox Walkup Ann C. Short Attorney General & Repor ter Knoxville, Tennessee Michael E. Moore Solicitor General Kathy Morante Deputy Attorney General Eugene J. Honea Assistant Attorney Gener al Nashville, Tennessee At Trial: Randall E. Nichols District Attorney General Knoxville, Tennessee Robert Jolley Assistant District A

ttorney Knoxville, Tennessee



## O P I N I O N

AFFIRMED ANDERSON, J.-2- We granted review in this cas e to determine whether a cour t-ordered mental evaluation viol ated the defendant’s right agai nst self-incrimination and the right to counsel under the United States and Tennessee Constitutions.
The Court of Criminal Appeals concluded that the de fendant waived his right against self-i ncrimination by asserting an insanity defense and that the mental evaluation, whic h was ordered by the t rial court and conducted pur suant to Tenn. R. Crim. P. 12.2(c) , did not violate the ri ght to counsel because it di d not constitute a critical s

tage of the proceedings. The Co urt then affirmed the defendant’s conviction for v oluntary manslaughter.

We hold that where a defendant asserts a defense based on his or her mental state, a court-ordered mental evaluation does no t violate the right against self-incrimination prov

ided any statements made during the evaluation, and any “fruits” derived from suc h statements, are used by the pr osecution only for impeachment or rebuttal of the defense. We also hold that the defendant does not have the right to cou nsel during the mental ev aluation itself.
Accordingly, w

hile we employ different r easoning, we affirm the judg ment of the Co urt of Cri minal Ap peals fo r the reas ons artic ulated b elow.

BACKGROUND David Paul Martin, the defendant, and the victim, his second wife, had a tumultuous marriage marked by domestic disputes, physi cal violence, and numerous separations and reconci liations.
In May of 1991, the victim entered Martin’s house, cursed his daughter, argued with him, and then said she wanted “to see him locked up again.” According to one witness, Martin responded, “Well, here I go.” Martin’s-3- daughter, however, d enied that Martin made such a s tatement. In any event, Martin knocked the vic

tim from her chair and strang led her to death. He then showered, gave his

children some keys and money, and waited for the police t o arrive.

Martin was indicted for first-degree murder, and he filed notice of his intent to rely on a mental responsibility defense. The State moved, and th e trial court ordered, that the defendant undergo a ment al examination. Martin moved for an order to protect his ri ght to counsel, his rig ht against self-incrimi nation, his right to confrontation, his right to a fair trial, and also t o assure that the examination was fairly administered. He specifically asked that his counsel or a defense expert be permitted to attend the mental examination.
At a hearing on Martin’ s motion for a protective or der, Dr. Clifton Tennison, a psychiatrist with the Helen Ross M cNabb Center, testified that: My opinion is that, to have anyone else present during psychiatric evaluations hinder and hamper s the accuracy of the eval uation. The person will color and change their responses, based on who is in the room. Following the heari ng, the trial court enter ed an order compelling Mar tin to undergo a mental evaluation to determine his competency and his mental state at the time of the offense. The order prov ided that Tennison could determine who could be present duri ng the evaluation and w hether it would be recor ded by video or audio tape.

Dr. Tennison decided that neither defense counsel nor experts e mployed by Martin would be present at the evaluation; ho wever, he allow

ed the examination to be videotaped.When Tennison completed his examination, he sought permission for Dr.James Burrell, a clini cal psychologist, to conduct an additional interview. The trial court authoriz ed Burrell’s invol

vement over1 At the t ime of the offense,insanit y was a defense t

o prosecutio n if “at

the ti me of such condu ct, as a res ult of a m ental disea se or de fect, the pe rson lac ked su bstantial ca pacity either to appreciate the wrongful ness of the person’s conduct or to conform that conduct to the requirements of l aw.” Tenn. Code Ann. § 39-11-501(a)( 1991). If the eviden ce raised a reason able dou bt as to the person ’s sanity, the bu rden of p roof fell to the state to es tablish san ity beyond a reason able dou bt. State v. Jackson , 890 S.W.2d 436 (Tenn. 1994). Effecti ve July 1 , 1995, the l aw was amended to provide t hat the defen dant must prove, by “clear and co nvincing evidenc e,” that “as a result of a severe men tal disease or defec t, [he or she ] was un able to appreciate the nature or wrongfulness of

[his or her] acts. ” Tenn. Code Ann. § 39- 11- 501(a)(Supp. 1995).
-4- defense objection. Dr. Burrel l did not allow defense couns el or defense experts to be present, nor did he allo w the examination to be r ecorded.

After Martin renewed his notice to rely on a mental responsibility defense, the trial court en tered an order whic h stressed the f ollowing: [N]o statements made by [the defendant] during the court ordered examination, or any fruit s of those statements, shall be int roduced at the trial of this cause unl ess and until the issue of mental responsibility is

raised by [the defendant], or for impeachment purposes as provided by Rule 12.2(c), Tenn. R. Cr im. P. Any party who intends to use such statements, or the fruits thereof , shall first make application to the bench outsi de the hearing of the jury prior to eliciting testimony or introducing evidence contemplated by this Order. At trial, Martin pres

ented the testimony of Dr. John Kandilakas, a clinical psychologist who

treated him after the offense. Dr. Kandi lakas testified that at the time of the offense, Martin was s uffering from a major depressiv e disorder and had suffered a disassociativ e reaction. He concluded that Martin met the test for insanity pursuant to Tenn. Code Ann. § 39-11-50 1(a)(1991). 1 In rebuttal, Drs. Tennison and Burrell both agreed that Martin suffered maj or depression at the time of the offense. They concluded, how ever, that he did not meet the l egal standard for insanity at the time he committed the offense.
After deliberation, the jury convicted Martin of the l esser offense of voluntary manslaught

er. The Court of Criminal Appea ls upheld the conviction on appeal, as well as the defendant’s five-year sentence. We granted this appeal to2 For e xam ple, th e Co urt of Crim inal A ppe als de term ined t hat R ule 12 .2(c) did no t limit the State t

o a single examination or a single exper

t, that the defendant

was not prejudi ced by the inclusion o f a com petenc y evaluation, th at the orde r did not sh ift the burde n to prove insanity to the defendant,and that t he order did not result in the appl icati on of the wrong st andard for insa nity. -5- determine whether the court-ordered mental evaluation violated the de fendant’s right to counsel or r

ight against self-incrimination.

MENTAL EXAMINA

TIONS We begin our analysis by exami ning the procedural rul e which governs court-ordered mental exami nations of criminal defendants in Tenness ee. The rule provides that if the defendant intends to rely on the de fense of insanity at the time of the offense, he or she must notify the prosecution in writi ng prior to trial. Likewise, if the defendant intends to “introduce expert t

estimony relating to a mental disease or defect or any other mental condition of the defendant bear ing on the issue of his or her g uilt,” he or she shall n otify the prosecution in writing prior to trial. Tenn. R. Crim. P. 12.2(a) & (b).
Under the rule, the prosecution may request that the t rial court order the defendant to undergo a “mental examination b y a psychiatrist or the other expert designated for this purpose i n the order of the court.” The ru le, however, limit s the use of statements made by the defendant: No statement made by the defendant in the course of any examination provided for by this rule, whether th e examination be with or without the

consent of the defendant, no testimony by the expert based upon such statement,and no other fruits of the statement shall be admitted in evidence against the def endant in any criminal proceeding except for impeachment purposes o r on an issue respecting mental c ondition on which the defendant has introduc ed testim ony. Tenn. R. Crim. P. 12.2(c).
The defendant has challenged the entir e process under this rule on constitutional and other proc edural grounds, whic

h the lower courts re

jected. 2-6- Although we granted r

eview in this cas

e to address the right to counsel and right against self-incrimination issues, the defendant insists th at the courts must exercise more superv

ision and control to ensure the fairness of the mental examination process and the reliability of its results. The State responds, in short, that Rule 12.2 sufficientl y protects the interest

s of both the defendant and the prosecution.
Preliminarily, w

e recognize that there are obvious concerns g enerated when a defendant is compelled to unde rgo a mental examination at which he or she will, in all likelihood, discuss not only details of his or her life but also information about the charged offense. While numerous federal and state jurisdictions have confronted these issues, there has been little discussio n in Tennessee and essentially no detailed analysis of the proced ures set forth in Rule 12.2.

SELF-INCRIMINA TION The Fifth Amendment to the United St ates Constitution provides in part that “no person . . . shall be compelled in any criminal case to be a witness against himself.” Similar ly, article I, § 9 of the Tennessee Constitution states tha t “in all crim inal pros ecution s, the acc used . . . s hall not b e compel led to give evidence against himself.”
These provisions protect the accused from being compelled t o provide evidence of a testimonial or communicative nature. While we are free to extend greater protection to ci

tizens under our state C onstitution than is grant ed under the federal Constitution, w e have traditionally

interpreted article I, § 9 to be no broader than the Fifth Amendment. Mor eover, we have nev

er adopted a literal interpretation of the term “ev idence” used in article I, § 9. See Delk v. State , 590-7- S.W.2d 435, 440 (Tenn. 1979); State v. Frazier, 914 S.W.2d 467, 473-74 (Tenn. 1996).
The defendant has vigorously argued that without adequate safegua rds, the cour t-order ed mental

examin ation pr

ocess v iolated his ri ght aga inst se lfincrimination under the Uni ted States and Tennessee Constituti ons. U.S. Const. amend. V; Tenn. Const. art. I, §9. He maintains tha t the courts should balance the “competing interests at stake” by requir ing (1) that the mental ex amination be monitored by defense experts and counsel, (2) that the ex amination be recorded, and (3) that the prosecution no t have access to statements and information from the examination until such time as it may be used at tr ial for impeachment or rebuttal under Rule 12.2(c). On the other hand, the State argues th at Rule 12.2(c) protects the defendant’s right against self-i ncrimination by prohibi ting the use of statements, or any fruits derived from the statements, ex cept for impeachment or rebuttal of mental res ponsibility eviden ce introduced by the defense.
To support their respectiv e positions, both the State and the defendant rely o n the U.S . Suprem e Court decisi on of Estelle v. Smith , 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). In Estelle , the court ordered the defendant to be examined to determine his competency to stand trial . Later, during the sentencing phase of the capital trial, the State used the examining psychiatrist’s testimony to prove an aggravating factor - the defendant’s future dangerousness. The Estelle court held that the defendant, who had not raised the issues of competency or sanity, had not introduced evidence r egarding sanity, an d had not been given notice that the examination could be used against him in the penalty phase, was denied his Fifth Amendment right against sel f-incrimination. 451 U.S. at 466, 101 S.Ct. at 1874.-8- Significantly, the cour

t in Estelle distinguished its facts from those which we now confront:
Nor was the interv

iew analogous to a sanity examination occasioned by a defendant’s plea of not guilty by reas on of insanity at the time of his offense. When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only means it has of controverting his proof on an issue that he interjected into the case

. Accordingly, several Courts of Appeal have held that, under such circumstances, a defendant can be r equired to submit to a sanit y examination conducted by th e prosecution’s psychi atrist. 451 U.S. at 465, 101 S.Ct. at 1874 ( emphasis added); see also Buchana n v. Kentucky , 483 U.S. 402, 107 S.Ct. 290 6, 97 L.E d.2d 336 (1987). A ccordingl y, the limi ted hold ing of Estelle with respect to the Fifth Amendment is that “a criminal defendant, who neither initiates a psychiatr

ic evaluation nor attempts to introduce any psychi atric evidence, may no t be compelled to respond to a psychiatrist if his s

tatements can be used against hi m at a capital sentencing proceeding.” 451 U.S. at 468, 101 S.Ct. at 1875; see also State v. Bush , 942 S.W.2d 489 (Tenn. 1997).
By cont rast, i n the Tenn essee ca se of State v. Thompson , 768 S.W.2d 239 (Tenn. 1989), cert. denied , 497 U.S. 1031 (1990), the cr iminal defendant initiated a psychiatr

ic evaluation and introdu ced psychiatric ev idence. The State used the psychiatric report to rebut the testimony of the defen dant’s expert in the sentencing phase of the capital trial. The defendant argued that us e violated his right against self-incrimination. We held that the evidence was properly admitted to rebut the defense evidenc e and to impeach the opinion of the defense expert. Id . at 248.
Virtually every

federal and state court juri sdiction has held that w here a defendant

raises an insan ity defe nse, the Fifth Am endment r

ight against selfincrimination is not v

iolated by a court-orde red psychiatric ex amination or by the3 See Presnell v . Zant , 959 F.2 d 1524 , 1534 (1 1th Cir. 19 92); United States v. Byers , 740 F.2d 11 04, 1115 (4th Cir. 19 84); Nog gle v. M arsh all , 706 F.2 d 1408 , 1415 (6 th Cir.), cert

. denied , 464 U .S. 1010 (1983); United Stat es v. Cohen , 530 F.2 d 43, 48 (5 th Cir.), cert

. denied , 429 U.S. 855 (19 76); State v. Schackart , 858 P.2d 639, 645 (Ariz. 1993 ), cert

. denied , 511 U.S. 1046 (1994); State v. Steiger , 590 A.2d 408, 416 (Conn . 1991); White v. United St ates , 451 A.2d 848, 852 (D.C. App. 1982); Brasw ell v. State , 371 So.2d 992, 997 (Ala. Crim. App. 1979), among others. -9- prosecution’s use of evidenc e from the examination to rebut ev idence introduced by the defendant. 3 Various rationales hav e been advanced by these cour ts: that the defendant waives the ri ght by asserting an insanity defense; that a mental examination compels “phy sical” or “real” evidence, as opposed to “tes timony” or “communications”; and that the r ight against self-incrimination is not applicab le to statements concerning the is sue of sanity. See , e.g. , United States v. Byers , 740 F.2d at 1111-1113 (discussing each rationale).
An important point, in our v iew, is one sugges

ted in Estelle : “When a defendant asserts the insanity defense an d introduces supporting psychiatric testimony, his silence may deprive the State of the onl y effective means it has of controverting his proof on an issue that he interjec ted into the case.” 451 U.S. at 465, 101 S.Ct. at 1 874. The New Jersey Su preme Co urt expres sed it thi s way: It would be most anomalous to say that a defendant m ay advance the defense of insanity, have hi mself examined by his ow n experts and then invoke

the cons

tituti onal gu arantees again st selfincrimination for the purpose of preventing examinatio n by the State. [Citation omitted]. It would be a strange doct rine, indeed, to permit a person charged w ith [a] crime to put in is sue his want of mental capacity to commit it, and in order to make his pl ea invulnerable, prevent all inquiry i nto his mental state or condition.
State v. Whitlow , 210 A.2d 763, 767 (N.J. 1965). Moreover, the right against self-incrimination is pr

eserved in that any st

atements made during the examination, or fruits der ived from the statements, may be used at trial only for impeachment or rebuttal of the mental r esponsibility defense. Noggle v. Marshall , 706 F.2d at 1415-1416.-10- We conclude that Rule 12.2 (c) safeguards the defendant’s right against self-incrimination under the United States and Tennessee Consti tutions. The defendant must initiate the process by providing notice of his or her intent to rely on a mental responsibility defense and to introduce expert testimony on the issue. The prosecution may r equest, and the trial cour t may order, that the defendant undergo a psychiatri c examination so as to inq uire further into the defendant’s mental state. The prose cution’s use of the defendant’s statem ents, or the “fruits” deriv

ed from such statements, is expr essly limited to impeach ment or rebuttal of the evidence c oncerning mental state intr oduced by the defendant. In other words, such mater ial may not be used by the prosecution to prove the guilt of the defendant and may not be used if the defense does not introduce testimony at trial on mental condition. Moreover, because the defe ndant likewise has access to the information g enerated by the examination,he or she is free to object in limine to any material on the basi s of privilege, rel evance, or any other ground. Tenn. R. Crim. P. 12.2(b).

These limitations, in our v iew, achieve the balan cing of interests stress ed not only in Estelle , supra , but also in virtual ly every other case decided on the issue. Accordingly, we reject the defendant’s argument that further safe guards, such as recording the ex aminations or allowing

third persons to monitor th e
ex am in at io ns , a re

ne ce ss ar

y t o p re se rv

e t he ri gh t a ga in st

se lf -i nc ri mi na

ti on . We also reject the defendant’s assertion that the prose cution should not have access to any information from the exami nation until needed at trial “for impeachment or rebuttal.” Such a restriction def eats the balan cing outlined ab ove and also begs the question of how the prosecution would recogni ze appropriate impeachment or rebuttal without access to the material.
We emphasize, however, that the tri al court ultimately bear s the responsibility to ens ure that the prosecution’s us e of the information complies-11- with Rule 12.2(c). Here, the trial court’ s order, which tracked the restrictions set forth in the rule and also req uired a jury out heari ng prior to any intend ed use of the statements, was appropri ately designed to meet thi s responsibility. A review of the record, moreover, rev eals that no statements or ev idence were admitted at trial in violation of Rule 12.2(c).
In summary, when a defendant indi cates his or her intent to rely on a mental re sponsib ility defe nse, the trial cour t, on mot ion of th e district attorne y, may order a mental examination. No statements made by the defendant, material derived from such statements, or expert testimony based on such statements, are admissible at t rial except for impeachment or rebuttal of the mental responsibility evidence introduced by the defense. W hen these restrictions are properly followed, as in this case, the proceedings under Rule 12.2(c) do not violate the defendant’s right against self-incrimination under the Constitutions of the United Stat es or the State of Tennessee.-12- RIGHT TO COUNSEL Both the United States and Tennessee Constitu tions require the presence of counsel to represent a defendant not onl y at trial but also at “critical stages” of the proceedings “where counsel’s absence might derogate from the accused ’s right to a fair trial. ” The purpose underlying the right is to “pre

serve the defendant’s basic right to a fair trial as affected b y his [or her] right meaningfully to cross examine the w itnesses . . . and to have e ffective assistance of counsel at the trial itself.” United States v. Wade , 388 U.S. 218, 226-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149 (1967).

The defendant asserts that the court-orde red mental examination was a “critical stage” of the proceedings requir ing the presence of counsel under the United States and Tennessee Constitutions. U.S. Const. amend. VI ; Tenn. Const. art. I, § 9. The State mai ntains that the mental examinati on is not a “critical stage” of the proceedings and moreover, that counsel’s presence would impair or limit the effectiv eness of the examination.

In Estelle v. Smith , supra , the Supreme Court held that the Sixth Amendment right to counsel w as violated when the defendant “was denied the assistance of his attorneys in making the signific

ant decision of whether to submit to the [ psychiatric] exami nation and to wha t end the psychia trist’s findings could be employed.” Althoug h the court said that the psy chiatric interview “proved to be a ‘critical stage’ against” the defendant, its holding w as limited to the question of whether the defendant was entitled to con sult with counsel prior to the exami nation. The court did not f ind a Sixth Amendm ent right t o have counsel at the examination and, in fact, noted with appa rent approval the Court of Appeals’ finding that “an attor ney present during the p sychiatric interv

iew could contribute little and might seriously di srupt the examination.” 45 1 U.S. at 470-71, 101 S.Ct. at 1877, n. 14.4 United States v. Byers , 740 F.2 d at 1121 ; United Stat es v. Cohen , 530 F.2d at 48; United States v. Baird , 414 F.2 d 700, 71 1 (2d C ir. 1969), cert

. denied , 396 U.S. 1005 (1970); People v. Mahaff

ey , 651 N.E .2d 1055 , 1064 (Ill. 199 5), cert

. denied , 116 S.Ct. 547, 133 L.Ed. 2d 450 (19 95); State v. Schackart , 858 P.2d at 646; State v. Steiger , 590 A.2d 408, 420 (Conn. 1991); Grand ison v. State , 506 A.2d 580, 593 (Md. 19 86); State v. Hardy , 325 S.E.2d 320, 322 (S.C. 19 85); State v . Brown , 681 P.2d 1071, 10 73 (Kan . 1984); Stricklan d v. State , 275 S.E.2d 2 9, 32 (Ga . 1981); see also Annota tion, Right of Accused i n Criminal Prosecu tion to Presence of Counsel at Court-Appointed or Approved Psychi atric Examinat ion , 3 A.L.R. 4th 930 (1981 & Supp. 1996). Conversely, a minority of courts have held that counsel should either be presen t or receive a record ing of the e xam ination. State v. Hutchison , 766 P.2d 447 (W ash. 19 89); Houston v. State , 602 P.2d 784 (Ala ska 19 79); Shepard v. Bowe , 442 P.2d 238 (Or. 1968). -13- In later clarifyin g Estelle , the court stressed that “ for a defendant charged with a capital crime,the decision whether to submit to a psychiatric examination designed to determine his futur e dangerousness is ‘literally a life and death matter’ which the defendant shoul d not be required to face without ‘the guiding hand of counsel.’” Satterwhite v. Texa s , 486 U.S. 249, 254, 108 S.Ct. 1792, 1796, 100 L.Ed.2d 284 (1988). Simil arly, the court said that “[w]hile it may be unfair to the state to permit a defendant t o use psychiatric tes

timony without allowing the state a mean s to rebut that testimony, i t certainly is not unfair

to the state to provide counsel with notice before examini ng a defendant concerning future dangerousness.” Powell v. Texas , 492 U.S. 680, 685, 109 S.Ct. 3146, 3150, 106 L.Ed.2d 551 (1989); see also State v. Bush , 942 S.W.2d 489 (Tenn. 1997).
While the United States Supreme Court has not d irectly addressed the issue, a substantial majori ty of state and federal jurisd ictions have held that a defendant does not have the right to counsel during a psy chiatric examination. 4 In United States v. Byers , supra , for instance, the court distinguished the need for couns

el befor e an exa minatio n, as opposed to d uring the exami nation itself, by pointing out that before ex amination [the defendant] was confronted by the procedural system at the point at which he had to deci de whether to raise the i nsanity defense, a determination that woul d have several legal consequences, including the likelihood of a court ord er that he undergo a psychiatri c examination. . . .

. . . .5 See also Heflin v. Sta te , 640 S.W .2d 58, 66 (Tex. A pp. 1982 ); People v. Lar sen , 385 N.E.2d 679, 683 (Ill. 1979), cert

. denied , 444 U.S . 908 (19 79); White v. United St ates , 451 A.2d at 854; People v. Mahaff ey , 651 N.E .2d at 106 4; State v. Hardy , 325 S.E .2d at 322 ; State v . Brown , 681 P.2 d at 1073 ; Tenn . R. Evid. 70 5. -14- But at the psychiatric interview itself, [the defendant] was not confronted by the procedural s ystem; he had no decisions i n the nature o f legal st rategy or ta ctics to m ake -- not even, as we h ave seen, the decision whether to refuse, on Fifth Amen dment grounds, to answer the psychiatrist’s questions. The only conceivable role for counsel at the examination w ould have been to observe.

. . . 740 F.2d at 1118-1119.
Similarly, numerous cou rts have considered the “ pragmatic” effect that counsel’s presence, instead of rendering assistance, w ould impede or inhibit the examination. Moreover, a number of courts have stressed that the def endant’s rights to a fair trial and to confrontation are sufficient ly preserved by counsel’s opportunity to interv

iew the witnesses,review the results and information generated by the examination, conduct cross-examination of the psychiatric witnesses, and introduc e defense witnesses. See , e.g. , State v. Schackart , 858 P.2d at 646-47. 5
Accordingly, w

e agree with the court

s which have disti nguished the “c ri ti ca l s ta ge ” p ri or

to a p sy ch ia tr ic ex am in at io n f ro m t he

ex am in at io n i ts el f. We are convinced that the ex amination differs in purpose and proc edure from other stages of the adversarial system, and that counsel’s physical presence in a strictly passiv

e, observational capacit y, is not necessary

to protect the defendant’s related rights to a fair trial and to confron t witnesses. In particular, the defendant has access to the informatio n and results generated by the mental examination, as well as the right to interv iew, subpoena, and cross-examine the experts with regard to their methodology,opinions, and results.

Thus, we conclude that the Six th Amendment of the U.S. Constitution an d article I, § 9 of the Tennessee Cons titution do not require the presence of-15- counsel during a court- ordered mental examination. I t follows that the trial court’s order, whic

h did not specifically per mit counsel to attend and monitor the mental examination, did not v iolate the defendant’s right t o counsel.
Although we hold that recording the mental examination is not constitutionally req uired, our holding shoul d not be interpreted as prohibi ting the trial court from enhancing the integrity of the tri al. We fully endorse and
encoura ge recordi ng the psyc hiatric e xaminati on as a sim ple and e ffecti ve means to preserve evide nce and to enhance the accuracy and reliability of the truth-seeking function of the tr ial. See , e.g. , State v. Jackson , 298 S.E.2d 866, 873 (W.Va. 1982). A verbatim recording of the mental examination process would enhance the integri ty of the trial witho ut the potential hindrance of all owing counsel to be present during the examination itself. Acc ordingly, upon a show

ing that such a safeguard is feasibl e and not unduly intrusiv e in a given case, the trial court has the discretion to require video or audio taping of the psychiatric examination to assist both sides in preparing for tr ial.
Similarly, the trial court has the authority to designate in its order not only the expert who is to perform the examination, but als o the objective of the examination. The New Jersey Supreme Court articulated our purpose best in State v. Whitlow , supra : “[T]he psychiatric interview is a crucial diagnostic tool, [and] the judicial aim must be t o make it an effective instrument o f justice.” 210 A.2d at 772. This aim cannot be fully achieved unless the trial court actively oversees the process and e nsures compliance with Tenn. R. Crim. P. 12.2.

CONCLUSION For the foregoing reasons , we conclude that the cour t-ordered mental examination did not viol ate the defendant’s right agai nst self-incrimination or right-16- to counsel under the United Stat es and Tennessee Constitutions. The costs of this appeal are taxed to the defendant-appellant, David Paul Martin.

________________________________ RILEY ANDERSON, JUSTICE
Concur: Birch, C.J. Drowota, Reid, and Holder, JJ.