Request By:
Mr. George T. Raber
Henderson Circuit Court Clerk
Box 675
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question relates to testimony of medical doctors in a lunacy action. Your specific question is whether it is necessary, after giving their testimony in court, that the doctors record their findings of the defendant's mental condition on the petition and sign their names, the clerk attesting the signatures. You are referring to an incompetency proceeding which is begun by the filing of a petition pursuant to KRS 203.012. The answer is "no".
In a recent case in Henderson Circuit Court the presiding judge did not require the doctors' findings in writing or their signatures. The record does show that the doctors were present in court and were sworn to testify, the testimony was recorded, and the jury rendered a verdict.
KRS 203.015 reads:
"(1) When the petition has been properly filed with the clerk of the court, the court shall appoint two (2) physicians or one (1) physician and one (1) certified clinical psychologist licensed under the provisions of KRS chapter 319 to examine the defendant and to certify to the court as to whether they find the defendant mentally disabled.
"(2) Where possible, the physicians or physician selected shall have made a special study of mental deficiency and mental disease. The examiners, either physicians or physician and certified clinical psychologist, shall be entitled to a fee of ten dollars ($10.00) each for such examination and certification, to be paid by the county in which the petition is filed, upon a certified copy of an order of allowance made by the court holding the inquest.
"(3) The certificate shall state that the defendant has been examined by each of the medical examiners making the certificate within three (3) days prior to the date of the certificate. "
Where the two doctors actually appear in circuit court and give their oral testimony on the mental condition of the defendant, and the testimony is recorded or taken by the reporter by way of stenographic notes, it is our opinion that the filing of their affidavits or certificates with signatures, etc., is not necessary and would constitute an error, through not necessarily a harmful one. The point is that the oral testimony takes the place of the affidavits or certificates of the doctors. The second point is that the law will not force any one to do a vain and useless thing.
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821. In this situation the certificates would add nothing to the case. Their testimony is all in the record. A third point is that the certificates would not be proper, since the oral testimony is their evidence before the court and supersedes any affidavit or certificate which they might otherwise file.
Since a lunacy inquest may deprive the defendant of his liberty and property, the courts have characterized the inquest generally as a quasi criminal proceeding. Thus any such deprival of liberty and property should be obtained only by the due processes of law under constitutional guarantees.
Denton v. Commonwealth, Ky., 383 S.W.2d 681 (1964). In Denton the court held that the trial court erred in admitting the evidence of doctors by certificate or affidavit over objection of appellant's counsel, the court saying that the defendant in an inquest must be afforded the same constitutional protection as is given to the accused in a criminal case. Here the court held in effect that the defendant in an inquest is entitled to confrontation and cross-examination of witnesses testifying against him. See § 11, Kentucky Constitution and the Sixth Amendment to the Constitution of the United States, as to this right of confrontation. Thus the court in Denton stands for the proposition that in a lunacy inquest the manner of proceeding, the rules of evidence and burden of proof should be the same as those in any criminal or quasi-criminal trial.
In summary, where the physicians, who have examined a defendant involved in a lunacy proceeding, come into circuit court and give their oral testimony as to the mental condition of the defendant, the filing of their affidavits or certificates as to their medical findings is not necessary and is not proper, since their recorded or stenographically noted testimony is a part of the court record. Such record can be transcribed and made into a transcript in the event an appeal is taken. In