COMMONWEALTH vs. JAMES H. GIBBONS.

ABRAMS, J. We transferred the case to this court on our own motion to consider the Commonwealth's assertion that a judge of the Superior Court abused his discretion in ordering a complainant in a rape case to submit to an examination conducted by a psychiatrist selected by the defendant James Gibbons. See G. L. c. 123, Section 19. [Note 1] After the complainant refused to submit to such an examination, the judge dismissed the indictment pending against Gibbons, and the Commonwealth appealed. See G. L. c. 278, Section 28E. We reverse the order dismissing the indictment and remand the case to the Superior Court.

We summarize the pretrial proceedings. [Note 2] Gibbons moved for a psychiatric examination of the complainant pursuant to G. L. c. 123, Section 19. In support of Gibbons' motion, defense counsel [Note 3] stated that the complainant has a history of mental illness, that "around this particular time [the complainant] was hospitalized," and that the complainant has been under the care of a psychiatrist for approximately two years. He further stated that this might be a situation where the complainant might be given to "make up things," and that Section 19 is "directed specifically for this type of case." Finally, he added that

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the probable cause hearings were delayed due to the complainant's mental problems and that cross-examination at the probable cause hearing had been curtailed for the same reason.

The commonwealth told the judge that the complainant was twenty-seven years old and had a bachelor of science degree from Boston College. The Commonwealth agreed that the complainant did have a history of mental illness and stated that the complainant's medical records would be made available to the defense and to the judge if the judge so desired. The Commonwealth told the judge that the reason the cross-examination at the probable cause hearing was terminated was that it was "far out of bounds at that point," and not because she was a mental patient. [Note 4]

The judge ruled that it was appropriate to order the examination and asked the defendant to recommend a psychiatrist. The defendant agreed to submit names of psychiatrists to the judge. The judge "guessed" it was "appropriate" to have the defendant select the psychiatrist, since that would ensure an "independent" psychiatrist.

At the subsequent hearing, the Commonwealth informed the judge that the witness would decline to submit to examination by a psychiatrist selected by Gibbons. The judge then dismissed the indictment.

The judge failed to follow the clear mandate of G. L. c. 123, Section 19, and "request the department [of Mental Health] to assign a qualified physician." The legislative requirement that a psychiatric examination under G. L. c. 123, Section 19, be conducted by an impartial physician prevents parties from using the examination as a tool to

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harass or embarrass the person examined. [Note 5] Moreover, appointment of an impartial physician may encourage cooperation by the person examined, without which the value of the examination is highly questionable. There is general agreement that an uncooperative patient cannot be satisfactorily examined by a psychiatrist. See M. Guttmacher & H. Weihofen, Psychiatry and the Law 286-287 (1952). See also Ballard v. Superior Court, 64 Cal. 2d 159, 177 (1966). See generally O'Neale, Court Ordered Psychiatric Examinations of a Rape Victim in a Criminal Rape Prosecution -- Or How Many Times Must a Woman be Raped, 18 Santa Clara L. Rev. 119, 147 (1978). Hence the judge's order that Gibbons, rather than the Department of Mental Health, select the psychiatrist is an error of law.

The Commonwealth also argues that there was insufficient showing of need to justify ordering the witness to submit to a psychiatric examination against her will on the issue of competency. [Note 6] We agree.

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The standard governing the competency of witnesses is clear. A witness is competent to testify if he or she is aware of a duty to tell the truth and has personal knowledge of relevant facts. Competency also depends on the capacity of a witness to perceive, remember, and recount his or her knowledge of the facts. Commonwealth v. Zelenski, 287 Mass. 125, 128-129 (1934). See Commonwealth v. Sires, 370 Mass. 541, 546 (1976); Commonwealth v. Welcome, 348 Mass. 68, 70 (1964). See generally W. B. Leach & P. J. Liacos, Massachusetts Evidence 135 (4th ed. 1967). McCormick, Evidence Section 62, at 140 (2d ed. 1972). If the competency of a witness is placed in issue, "it is the duty of the judge to examine into the question of [the witness's] competency, and to reject [the witness] unless [the judge] is satisfied that [the witness] is competent." Commonwealth v. Reagan, 175 Mass. 335, 340 (1900). See Commonwealth v. Welcome, supra at 69.

The evidence before the judge of the witness's grand jury testimony should have dispelled any doubt raised by the defendant's counsel as to the witness's competency. [Note 7] A reading of the testimony by the complainant and the police reveals that she could perceive, remember and recount the events.

There is no basis in this record on which the judge could have determined that the complainant lacked sufficient understanding to comprehend the oath. The defendant offered no reasons at the hearings or in his motion for examination which indicated that the witness's actual mental condition affected her ability or willingness to tell the truth. Thus the judge had no basis on which to order an involuntary examination for competency.

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The mere fact that a witness has received psychiatric treatment does not render the person incompetent as a witness. A bald assertion that a complainant may be mentally ill is insufficient. See, e.g., People v. Seel, 68 III. App. 3d 996, 1006 (1979); State v. Kahinu, 53 Haw. 536, 547 (1972), cert. denied, 409 U.S. 1126 (1973). Sanity is not the test of a witness's competency. Commonwealth v. Zelenski, supra at 129. Commonwealth v. Sires, supra. Kendall v. May, 10 Allen 59, 63 (1865). See G. L. c. 123, Section 25; G. L. c. 233, Section 20. Compare United States v. Pacelli, 521 F.2d 135, 140-141 (2d Cir. 1975), cert. denied, 424 U.S. 911 (1976) (defects in witness's testimonial capacity obvious to all). See generally Note, Psychiatric Examinations of Witnesses: Standards, Timing and Use by Indigents, 55 Iowa L. Rev. 1286, 1297 (1970); O'Neale, supra at 150 & n.197.

Nevertheless, if the judge were concerned about the witness's competency, he should have held a voir dire examination of the witness, [Note 8] or he should have examined the witness's medical records, or he should have heard from the witness's psychiatrist before ordering the Section 19 examination. In this case the judge could have deferred his ruling until after the Commonwealth's counsel and the defense counsel met with the witness's psychiatrist -- an offer made by the Commonwealth. [Note 9] The Commonwealth

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wealth points out that these suggestions were made to the judge and that the judge summarily rejected all options except the involuntary examination. The record supports the Commonwealth's statements.

We think that a decision to order an involuntary psychiatric examination under G. L. c. 123, Section 19, must be based on informed discretion. "By such expression is implied absence of arbitrary determination, capricious disposition, or whimsical thinking.... The word imports the exercise of discriminating judgment within the bounds of reason. Discretion in this connection means a sound judicial discretion, enlightened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just." Davis v. Boston Elevated Ry., 235 Mass. 482, 496-497 (1920). Accord, Commonwealth v. Dougan, 377 Mass. 303, 317 (1979); Commonwealth v. Amazeen, 375 Mass. 73, 84 (1978); Commonwealth v. Bys, 370 Mass. 350, 361 (1976).

The judge ordered the examination, stating that "it was represented to me she had had some substantial -- or mental delusions in the past." The judge apparently was willing to rely on defense counsel's assertion that because the complainant had a history of psychological problems for which she was being treated she might "make up things." The defendant's attorney was "not qualified to give an opinion with regard to alleged psychological abnormalities." State v. Kaseman, S.D. (1978). [Note a] Moreover, the judge in relying on counsel's assertion knew that counsel had not yet seen the complainant's medical record. Therefore, the judge's exercise of his discretion was arbitrary and capricious; it was not a thoughtful and reasoned decision designed to reach a just result. Of course, "conduct manifesting abuse of judicial discretion will be reviewed and some relief afforded." Davis v. Boston Elevated Ry., supra at 497.

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Moreover, when unsupported allegations and conflicting statements are offered in support of a motion for an involuntary psychiatric examination, at the very least the exercise of discretion implies that an evidentiary hearing be held. State v. Butler, 27 N.J. 560, 605 (1958). We see no reason to base such a vital decision on representations of counsel when witnesses and medical records are available. See State v. Looney, 294 N.C. 1, 4-5 (1978). After reviewing the available evidence, the judge can then determine whether there is a "compelling need" for an involuntary examination and whether there is a likelihood that an involuntary examination will produce substantial evidence bearing on the witness's testimonial capacity. See Ballard v. Superior Court, 64 Cal. 2d 159, 174-175 & n.10, 176-177 (1966); State v. Kahinu, 53 Haw. 536, 546, 547 n.7 (1972). See also State v. Klueber, 81 S.D. 223, 230 (1965); Forbes v. State, 559 S.W.2d 318, 320 (Tenn. 1977); State v. Miller, 35 Wis. 2d 454, 471-472 (1967).

Furthermore, Section 19 requires the judge to order "such examinations as the judge may deem necessary." We think that the language of the statute requires that the judge guide the Department of Mental Health by setting forth the scope and purpose of the Section 19 examination. Such a requirement forces the judge to minimize the seriousness of the invasion of the witness's privacy by the involuntary examination. See State v. Looney, supra at 26-27. "[A] psychiatric examination may seriously impinge on a witness' right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment." United States v. Benn, 476 F.2d 1127, 1130-1131 (D.C. Cir. 1972).

In view of our holding, we need not reach the Commonwealth's further argument that the judge erred in dismissing the indictment over the Commonwealth's objection. See Commonwealth v. Brandano, 359 Mass. 332, 334 (1971).

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See also People v. Mills, 87 Cal. App. 3d 302, 308-309 (1978). However, we note that there are a myriad of possible sanctions less drastic than dismissal of the Commonwealth's case. See, e.g., Ballard v. Superior Court, 64 Cal. 2d 159, 177 (1966) (witness refusing to undergo examination allowed to testify, but jury informed of refusal); McCormick, Evidence Section 62, at 140-141 (2d ed. 1972) (bar witness from testifying). [Note 10]

Finally, we add that, contrary to defense counsel's suggestion, psychiatric examinations under Section 19 are not more appropriate in rape cases that in other criminal cases. In this Commonwealth, the standards governing court-ordered psychiatric examinations are the same for sex offense cases as they are for all other cases. G. L. c. 123, Section 19. See Commonwealth v. Welcome, 348 Mass. 68, 69 (1964). See also United States v. Wiley, 492 F.2d 547, 553-554 (D.C. Cir. 1973) (Bazelon, C.J. concurring). See generally State v. Wahrlich, 105 Ariz. 102, 106 (1969); People v. Rincon-Pineda, 14 Cal. 3d 864 (1975); State v. Looney, 294 N.C. 1, 26 (1978); State v. Clasey, 252 Or. 22, 23-24 (1968). Accord, Note, Corroborating Charges of Rape, 67 Colum. L. Rev. 1137, 1143 (1967); L. Schultz, Rape Victimology 117 (1975). Compare 3A J. Wigmore, Evidence Section 924a at 736 (Chadbourn rev. 1970), with Commonwealth v. Bohannon, 376 Mass. 90, 95-96 (1978).

In sum, we hold that a psychiatric examination under G. L. c. 123, Section 19, must be conducted by a physician assigned by the Department of Mental Health; that the judge must hold some type of evidentiary hearing before ordering an involuntary examination; and that the judge's order must specify the scope and purpose of the examination so as to limit the invasion of the witness's privacy as well as the humiliation and indignity associated with an involuntary examination. [Note 11] See, e.g., United States v. Benn, supra; State v. Looney, supra at 26-27.

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We reverse the order dismissing the indictment and remand the case to the Superior Court.

So ordered.