B-150346, JUNE 10, 1963, 42 COMP. GEN. 682

B-150346: Jun 10, 1963

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TO OTHER THAN STATES - AVAILABILITY - WITNESS FEES THE USE OF FEDERAL GRANT FUNDS ALLOCATED TO A SCHOOL FOR RESEARCH IN MENTAL DISEASES TO PAY EXPERT PSYCHIATRIC WITNESSES TO TESTIFY IN A COURT ON BEHALF OF A DEFENDANT IN A CRIMINAL CASE IS NO MORE PROPER THAN USING USING THE GRANT FUNDS TO PAY THE DEFENDANT'S ATTORNEY AND. IS BROAD. THE USE OF GRANT FUNDS FOR PAYMENT OF WITNESS FEES IS NOT PROPER. INASMUCH AS THE PAYMENTS WERE MADE IN GOOD FAITH AND ADMINISTRATIVE ACTION HAS BEEN TAKEN TO INSURE THAT FEDERAL GRANT FUNDS WILL NOT BE USED FOR SUCH PURPOSES IN THE FUTURE. NO FURTHER ACTION WILL BE TAKEN. 1963: REFERENCE IS MADE TO OUR LETTER OF NOVEMBER 29. ENCLOSED WITH YOUR LETTER WAS A REPORT IN THE MATTER PREPARED BY THE PUBLIC HEALTH SERVICE AND A COPY OF A MEMORANDUM FROM YOUR GENERAL COUNSEL TO THE SURGEON GENERAL.

B-150346, JUNE 10, 1963, 42 COMP. GEN. 682

FUNDS - FEDERAL GRANTS, ETC., TO OTHER THAN STATES - AVAILABILITY - WITNESS FEES THE USE OF FEDERAL GRANT FUNDS ALLOCATED TO A SCHOOL FOR RESEARCH IN MENTAL DISEASES TO PAY EXPERT PSYCHIATRIC WITNESSES TO TESTIFY IN A COURT ON BEHALF OF A DEFENDANT IN A CRIMINAL CASE IS NO MORE PROPER THAN USING USING THE GRANT FUNDS TO PAY THE DEFENDANT'S ATTORNEY AND, THEREFORE, EVEN THOUGH THE AUTHORITY VESTED IN THE SURGEON GENERAL IN SECTION 301 OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 241, IS BROAD, THE USE OF GRANT FUNDS FOR PAYMENT OF WITNESS FEES IS NOT PROPER, BUT INASMUCH AS THE PAYMENTS WERE MADE IN GOOD FAITH AND ADMINISTRATIVE ACTION HAS BEEN TAKEN TO INSURE THAT FEDERAL GRANT FUNDS WILL NOT BE USED FOR SUCH PURPOSES IN THE FUTURE, NO FURTHER ACTION WILL BE TAKEN.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JUNE 10, 1963:

REFERENCE IS MADE TO OUR LETTER OF NOVEMBER 29, 1962, AND ENCLOSURE, TO YOU, REQUESTING A REPORT CONCERNING FEDERAL GRANT FUNDS ALLOCATED BY THE NATIONAL INSTITUTES OF HEALTH TO THE WASHINGTON SCHOOL OF PSYCHIATRY TOGETHER WITH YOUR VIEWS ON THE PROPRIETY OF USING SUCH GRANT FUNDS TO PAY EXPERT WITNESSES TESTIFYING FOR A DEFENDANT IN A CRIMINAL CASE, AND YOUR REPLY THERETO, DATED MARCH 28, 1963. ENCLOSED WITH YOUR LETTER WAS A REPORT IN THE MATTER PREPARED BY THE PUBLIC HEALTH SERVICE AND A COPY OF A MEMORANDUM FROM YOUR GENERAL COUNSEL TO THE SURGEON GENERAL, PUBLIC HEALTH SERVICE.

OUR REQUEST FOR YOUR VIEWS IN THIS MATTER RESULTED FROM INFORMATION WE RECEIVED INDICATING THAT IN THE TRIAL OF THE CASE OF UNITED STATES V. WILLIE LEE STEWART (HELD IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA) FEDERAL GRANT FUNDS WERE USED BY THE WASHINGTON SCHOOL OF PSYCHIATRY TO PAY EXPERT WITNESSES (ONE PSYCHOLOGIST AND SIX PSYCHIATRISTS) FOR EXAMINING THE DEFENDANT IN THE ABOVE-CITED CASE AND ALSO FOR TESTIFYING IN COURT ON HIS BEHALF. THE INFORMATION WE RECEIVED FURTHER DISCLOSED THAT THE DEFENDANT, ON MOTION OF HIS COUNSEL, WAS EXAMINED AT SAINT ELIZABETHS HOSPITAL BY STAFF OF THE HOSPITAL AND FOUND WITHOUT MENTAL DEFECT OR MENTAL DISEASE. THE REPORT PREPARED BY THE PUBLIC HEALTH SERVICE DISCLOSES THAT IN APRIL 1961, A GRANT, RESEARCH PROJECT NO. M-5009, WAS AWARDED BY THE NATIONAL INSTITUTE OF MENTAL HEALTH TO THE WASHINGTON SCHOOL OF PSYCHIATRY. THE REPORT DISCLOSES THAT PSYCHIATRISTS SERVING AS EXPERT WITNESSES IN CASES INVOLVING INDIGENT DEFENDANTS IN CRIMINAL CASES HAVE RECEIVED COMPENSATION TOTALING $1,970 FROM THE FUNDS AWARDED UNDER THIS GRANT.

IT IS STATED IN THE REPORT THAT THE PARTICULAR PURPOSE OF THIS GRANT OR PROJECT WAS TO CONDUCT RESEARCH ON THE PROBLEM OF THE DEFENSE OF INSANITY WITHIN THE DISTRICT OF COLUMBIA AND ITS SIGNIFICANCE FOR THE GENERAL PROBLEM OF CRIMINAL LAW AND PSYCHIATRY. IT IS FURTHER STATED THAT THIS STUDY WAS DESIGNED TO UNCOVER AND WEIGH VARIABLES INVOLVED IN THE KEY DECISIONS LEADING TO THE DETERMINATION OF CRIMINAL RESPONSIBILITY WHEN AN INSANITY DEFENSE IS INTERPOSED IN A CRIMINAL TRIAL AND THUS SHED LIGHT UPON OPERATIVE LEGAL PSYCHIATRIC CONCEPTS OF INSANITY. THE REPORT DISCLOSES THAT AMONG THE VARIABLES TO BE STUDIED IN THE PROJECT WERE THE FOLLOWING:

1. LEGAL DOCTRINE

2. UNDERSTANDING AND APPLICATION OF LEGAL DOCTRINE

3. APPRAISAL OF LOCAL PSYCHIATRIC AND PENAL FACILITIES

4. CONCEPTIONS OF THE TREATABILITY OF THE OFFENDER

5. ADEQUACY OF DIAGNOSTIC PROCEDURES AND EXPERT TESTIMONY

6. DIAGNOSTIC SENSITIVITY OF LAWYERS

7. IMPACT OF DEFENDANT'S CHARACTERISTICS ON DECISION-MAKERS

8. SOCIO-ECONOMIC AND EDUCATIONAL BACKGROUNDS OF DECISION-MAKERS

9. PSYCHIATRIC AND LEGAL SCHOOLS OF THOUGHT AND/OR PROFESSIONAL BACKGROUNDS

10. PUNITIVE VS. CORRECTIVE ORIENTATION OF DECISION-MAKERS

IT IS STATED IN THE REPORT THAT THE METHODS OF DATA COLLECTION INVOLVE (1) THE USE OF PERSONAL INTERVIEWS, (2) CONTENT ANALYSIS OF JUDICIAL INSTRUCTIONS TO THE JURY, (3) RATINGS BY A PSYCHIATRIC PANEL ASSESSING THE DIAGNOSTIC SENSITIVITY OF LAWYERS, (4) EXAMINATION AND ANALYSIS OF ABSTRACTED COURT CASES, AND MORE IMPORTANTLY, (5) THE USE OF TRIAL CASES WITHIN THE CONTEXT OF WHICH ALL THE VARIABLES REFERRED TO EARLIER WOULD BE EXAMINED IN VIVO, SO TO SPEAK. WE ARE ADVISED THAT IT WAS IN THE COURSE OF THESE TEST CASES THAT THE GRANT FUNDS WERE UTILIZED TO PAY PSYCHIATRIC WITNESSES, SINCE THIS WAS FELT TO BE AN ESSENTIAL PORTION OF THE RESEARCH PROJECT. THE REPORT DISCLOSES THAT THE RESEARCH PROJECT IN QUESTION WAS APPROVED BY THE SURGEON GENERAL UNDER THE BROAD AUTHORITY VESTED IN HIM BY SECTION 301 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, CH. 373, 58 STAT. 691, AS AMENDED,42 U.S.C. 241.

THE PUBLIC HEALTH SERVICE REPORT STATES IN CONCLUSION THAT INASMUCH AS THE USE OF EXPERT WITNESSES CONSTITUTES AN ESSENTIAL ELEMENT IN THE SUCCESSFUL CONDUCT OF THIS PROJECT, AND SINCE THE INVESTIGATOR, IN HIS APPLICATION, CLEARLY INDICATED HIS INTENTION TO USE GRANT FUNDS FOR THIS PURPOSE, IT IS THEIR VIEW THAT THE EXPENDITURE OF GRANT FUNDS FOR THE PROVISION OF PSYCHIATRIC WITNESSES ON BEHALF OF DEFENDANTS INCRIMINAL CASES WITHIN THE CONTEXT OF THE PROJECT INVOLVED WAS APPROPRIATE AND THAT NO QUESTION OF PROPRIETY IS INVOLVED.

YOUR GENERAL COUNSEL IN HIS MEMORANDUM TO THE SURGEON GENERAL STATES THAT THE PUBLIC HEALTH SERVICE REPORT PRESENTS A PERSUASIVE CASE FOR THE PROPRIETY OF THE EXPENDITURES IN QUESTION, IN TERMS OF THE RESEARCH OBJECTIVE AND THE AVAILABILITY OF FUNDS. HOWEVER, THE GENERAL COUNSEL FURTHER STATES THAT HE IS SERIOUSLY TROUBLED BY THE IMPROPRIETY OF CONDUCTING RESEARCH IN THE COURTROOM WITHOUT THE KNOWLEDGE AND APPROVAL OF THE COURT, WHEN THE RESEARCH INVOLVES PARTICIPATION IN THE PROCESSES OF A TRIAL. IN THE MEMORANDUM THE GENERAL COUNSEL ADVISED THE SURGEON GENERAL AS FOLLOWS:

THE SECRETARY HAS ASKED ME TO REQUEST YOU TO TAKE STEPS TO ASSURE THAT IN THE FUTURE NO SUCH PRACTICE IS SUPPORTED BY THE PUBLIC HEALTH SERVICE IN THE CONDUCT OF THIS OR OTHER PROJECTS.

SECTION 301 OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, PROVIDES, IN PART, AS FOLLOWS:

THE SURGEON GENERAL SHALL CONDUCT IN THE SERVICE AND ENCOURAGE, COOPERATE WITH, AND RENDER ASSISTANCE TO OTHER APPROPRIATE PUBLIC AUTHORITIES, SCIENTIFIC INSTITUTIONS, AND SCIENTISTS IN THE CONDUCT OF, AND PROMOTE THE COORDINATION OF, RESEARCH, INVESTIGATIONS, EXPERIMENTS, DEMONSTRATIONS, AND STUDIES RELATING TO THE CAUSES, DIAGNOSIS, TREATMENT, CONTROL, AND PREVENTION OF PHYSICAL AND MENTAL DISEASES AND IMPAIRMENTS OF MAN * * *. IN CARRYING OUT THE FOREGOING THE SURGEON GENERAL IS AUTHORIZED TO---

MAKE GRANTS-IN-AID TO UNIVERSITIES, HOSPITALS, LABORATORIES, AND OTHER PUBLIC OR PRIVATE INSTITUTIONS, AND TO INDIVIDUALS FOR SUCH RESEARCH PROJECTS AS ARE RECOMMENDED BY * * * OR, WITH RESPECT TO MENTAL HEALTH, RECOMMENDED BY THE NATIONAL ADVISORY MENTAL HEALTH COUNCIL * * *.

WHILE THE AUTHORITY VESTED IN THE SURGEON GENERAL BY THE ABOVE QUOTED PROVISION OF LAW IS VERY BROAD, WE HAVE SERIOUS DOUBTS THAT THE CONGRESS CONTEMPLATED OR INTENDED, IN CONNECTION WITH RESEARCH RELATING TO MENTAL DISEASES, THAT FEDERAL GRANT FUNDS BE USED TO PAY EXPERT WITNESSES (PSYCHIATRISTS OR PSYCHOLOGISTS) TO TESTIFY ON BEHALF OF DEFENDANTS, INDIGENT OR OTHERWISE, IN A CRIMINAL TRIAL. IN THIS CONNECTION WE MIGHT POINT OUT HERE THAT AS FAR AS FEDERAL DISTRICT COURTS ARE CONCERNED PROVISION IS SPECIFICALLY MADE IN RULE 17 (B), FEDERAL RULES OF CRIMINAL PROCEDURE, PAGE 3419, TITLE 18, UNITED STATES CODE, FOR ATTENDANCE OF WITNESSES IN THE CASE OF INDIGENT DEFENDANTS. SEE ALSO RULE 28 OF THE SAME RULES, PAGE 3425, TITLE 18, UNITED STATES CODE.

FURTHER, THERE WOULD APPEAR TO BE LITTLE DIFFERENCE IN USING FEDERAL GRANT FUNDS, SUCH AS ARE INVOLVED HERE, TO PAY THE FEES OF EXPERT PSYCHIATRIC WITNESSES IN A CASE WHERE THE DEFENSE OF INSANITY IS INVOLVED AND USING SUCH FUNDS TO PAY THE DEFENDANT'S ATTORNEY IN THE SAME CASE. DOUBT THAT ANYONE WOULD SERIOUSLY CONTEND THAT IT WOULD BE PROPER IN SUCH CIRCUMSTANCES TO USE FEDERAL GRANT FUNDS TO PAY THE DEFENDANT'S ATTORNEY. WHILE IT MAY BE PROPER IN CONNECTION WITH RESEARCH INTO THE PROBLEM OF THE DEFENSE OF INSANITY TO USE FEDERAL GRANT FUNDS IN CONNECTION WITH THE COST OF PSYCHIATRIC EXAMINATION OF DEFENDANTS IN CRIMINAL CASES WHOSE SANITY APPEARS QUESTIONABLE, IT DOES NOT FOLLOW THAT SUCH FUNDS ARE ALSO AVAILABLE TO PAY THE PERSONS CONDUCTING SUCH EXAMINATIONS FOR TESTIFYING IN COURT, ON BEHALF OF SUCH DEFENDANTS.

IN LIGHT OF THE FOREGOING AS WELL AS FOR THE REASON SET FORTH IN YOUR GENERAL COUNSEL'S MEMORANDUM IT IS OUR VIEW THAT FUNDS GRANTED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 301 OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, MAY NOT BE USED TO PAY EXPERT PSYCHIATRIC WITNESSES TO TESTIFY ON BEHALF OF A DEFENDANT IN A CRIMINAL CASE. HOWEVER, INASMUCH AS THE EXPENDITURES INVOLVED IN THE INSTANT CASE APPARENTLY WERE MADE IN GOOD FAITH AND SINCE PURSUANT TO YOUR DIRECTION STEPS ARE TO BE TAKEN BY THE PUBLIC HEALTH SERVICE TO INSURE THAT IN THE FUTURE FEDERAL GRANT FUNDS WILL NOT BE USED FOR SUCH PURPOSE, WE WILL TAKE NO FURTHER ACTION IN THE MATTER.