Issue: Whether the violation of Guevara’s right to counsel during a psychiatric evaluation conducted by the prosecution was harmless.

Factual Background:

Guevara told police that he stabbed a roommate after a fight broke out between them. After his arrest, he provided timely notice under C.P.L. § 250.10 that he intended to present psychiatric evidence at trial, and he was twice interviewed by the prosecution’s clinical psychologist. Although defense counsel was present at the first examination, the prosecution’s psychologist denied defense counsel admittance to the second examination. Over defense counsel’s objection that Guevara’s right to counsel had been violated, the trial court admitted this expert’s testimony at trial. The jury ultimately acquitted Guevara of second-degree murder but convicted him of first-degree manslaughter as a lesser. He was sentenced to 20 years’ imprisonment.

On appeal, the First Department unanimously affirmed Guevara’s conviction, holding that his constitutional right to counsel had indeed been violated but that the error was harmless. The court relied on the fact that defense counsel was “provided with a copy of the expert’s report and permitted to cross-examine the expert on the stand.” Further, the court noted that Guevara was permitted to consult with and have his own expert present while the prosecution’s expert testified. The First Department saw no indications that counsel’s presence at the psychiatric examination “would have enhanced cross-examination” or would have “in any way affected the outcome.” Finally, the court explicitly rejected Guevara’s argument on appeal that this type of right to counsel violation requires automatic reversal.

Held: On SSM, in a short memorandum opinion, the court unanimously reversed the First Department and ordered a new trial because it “[could] not say that the error was harmless.” The court reaffirmed that a defendant’s Sixth Amendment right to counsel applies to pre-trial psychiatric examinations because these are a “critical stage of the prosecution.” The court applied the Crimmins standard, which requires that the prosecution—not the defendant—prove there was “no reasonable possibility” that the admission of the expert’s testimony “affected the jury’s verdict.”

CAL Observes: Although the Court of Appeals ordered the correct remedy, such an egregious violation of the right to counsel should have resulted in automatic rather than circumstance-specific reversal.  As Justices Feld and Breitel noted in their dissents in Lee v. Cty. Ct. of Erie Cty., 27 N.Y.2d 432, 446-47 (1971), “to restrict a defendant’s right to a lawyer upon his pretrial mental examination … will frequently have the effect of substantially abridging, if not eliminating, every right he may have to the effective assistance of counsel in the preparation of his defense.” As a result, both justices argued that defense attorneys should not only be present at psychiatric examinations but should be permitted to take an “active role.” Unfortunately, they did not win the day. That we are now in a realm where multiple courts could countenance defense counsel being barred from a psychiatric exam as potentially “harmless” is a disturbing trend away from an already minimally protective rule. The right to counsel is fundamental, and where it is violated in this way, the violation is always harmful.