“Yes, sir.”
“You were endeavoring to treat her?”
“Yes, sir.”
“In order to treat her effectively you felt it was necessary to know certain facts which you felt could be brought out by question and answer under a so-called truth serum test?”
“Yes, sir.”
“And you administered this test as a part of your treatment as a psychiatrist and a physician and surgeon?”
“Yes, sir.”
“Now the defendant was under the influence of drugs at that time?”
“Yes, sir.”
“Did she know what she was doing?”
“Well, there you get into a very peculiar psychological situation, Mr. Mason. A part of her mind knew that she was making a statement and answering questions. A part of her mind was drugged into such a degree of quiescence that there could be no resistance.”
“In other words, her consciousness was impaired by drugs?”
“Yes.”
“Her volition was impaired by drugs?”
“Yes.”
“Those drugs were administered by you as a physician in the course of treatment?”
“Yes.”
“And you asked those questions and received answers from her in the capacity of a physician diagnosing the condition of a patient and as a confidential communication?”
“Yes.”
“You have given many such examinations?”
“Yes.”
“What is the purpose of those examinations?”
“Well, you evaluate certain emotional conflicts because of answers which are received.”
“Are those answers always intelligible?”
“Definitely not.”
“Are they always correct?”
“Apparently not.”
“Then there is a possibility that the answers which you received to your questions in this case are not correct?”
“There is always that possibility.”
“You are familiar with the phenomenon known as talking in one’s sleep?”
“Yes.”
“Was the defendant’s condition similar to that which produces sleep talking?”
“Very much. It was an artificially induced sleep talking.”
“That is all,” Mason said.
“Just a moment,” Hamilton Burger said. “If the statements made by patients under a so-called truth serum examination were incorrect there wouldn’t be any point in giving such an examination, Doctor.”
“I didn’t say that the answers were incorrect. I said there was a possibility that they could be incorrect.”
“Is that possibility sufficiently great so that it negatives the value of the test? In other words, were you taking this patient’s money and taking her time for a treatment that was of no value?”
“Certainly not. One has to understand how to evaluate those answers. Sometimes even when the answers are incorrect the emotional status of the patient can be evaluated.”
“So this test is of some value in your diagnosis?”
“Definitely.”
“And by this test you expected to find out what was causing guilt feelings on the part of the defendant?”
“Objected to,” Mason said, “as calling for a matter of treatment. It is the same question which was asked before and to which an objection was sustained. It seeks to pry into the relationship between the patient and the doctor. It also assumes a fact not in evidence.”
“I think,” Judge Ashurst ruled, “that you have now identified the tape recording, Mr. Prosecutor. I think that any further questions should be limited, except those questions generally as to the mental condition of the patient at the time it was made. I think the question before the Court will now hinge upon an attempt to introduce that tape recording.”
“I ask to have it introduced in evidence,” Hamilton Burger said.
“I object,” Mason said, “on the ground that it is a tape recording of a confidential communication between a physician and a patient. I object because it is a privileged communication. I object because it appears that the defendant was under the influence of drugs at the time the statement was made, and that there’s a distinct possibility that any statements contained in that tape recording are incorrect. I further object on the ground that it is not the best evidence and that no proper foundation has been laid. I further object on the ground that there has as yet been no proof of the corpus delicti, that there is no evidence that Mosher Higley died from other than natural causes, and that until there is some definite evidence indicating a criminal activity in connection with the death of Mosher Higley there can be no evidence of any statements or admissions or confessions made by the defendant.”
Judge Ashurst turned to the jury. “The jury will be excused,” he said, “while this objection is considered by the Court. During the time that the jury is excused you will not comment about the case or about the objection which is being argued before the Court. You will not discuss the case or permit it to be discussed in your presence, nor will you form or express any opinion as to the guilt of the defendant until the matter is finally submitted to you. Now then, the jury will be excused and we will proceed with the arguments.”
Hamilton Burger waited until the jury had left the courtroom, then said, “If the Court please, I may state to the Court outside of the presence of the jury, that on this tape recording there is a definite statement by the defendant, in a voice unmistakably her own, that she poisoned Mosher Higley. I realize that while we haven’t definitely established that Mosher Higley died as a result of cyanide poisoning I do feel that we have definitely established that he did not die as a result of any natural cause. Therefore there must have been some criminal agency. I think we have also raised a sufficient presumption that death was probably due to cyanide of potassium so that we can introduce this statement in evidence.”
Judge Ashurst looked at Perry Mason. “I’d like to hear the position of the defendant on that.”
Mason said, “This is a confidential communication. It was made under the influence of drugs. The witness would not have been permitted to take the stand and testify while in that drugged condition. Therefore she shouldn’t be permitted to testify by means of a tape recorder.
“The rule in this state was originally established in the case of People versus Robinson, 19 California 40, which was to the effect that words uttered by a defendant while not conscious of what he was saying could not constitute evidence of guilt and are inadmissible. This rule was held to exclude statements made by a defendant while asleep.
“That case, if the Court please, was subsequently cited in the case of Chadwick versus United States, 141 Federal 225.”
The judge smiled. “I was wondering why you asked the question about sleep talking, Mr. Mason. I see now that you had a firm objective in mind. The authority in question would seem to be conclusive.”
Judge Ashurst looked over at Hamilton Burger.
“Well, that whole doctrine is obsolete,” Hamilton Burger said. “It was decided in People versus Rucker, 11 California Appellate 2nd 609, 54 Pacific 2nd, 508, that any evidence tending to establish that a defendant was not in full possession of his faculties at the time he confessed guilt would not affect the admissibility of the confession but would be evidence for the jury to consider in determining the weight to be given to the confession.
“I therefore insist that this confession can be heard by the jury. Counsel can then introduce all of the evidence he wants tending to show the mental condition of the defendant at the time the confession was made. The jury can consider that evidence for the purpose of determining whether or not the confession is true. However, if the Court please, all of the physical facts show that that confession is true. The truth is apparent because it dovetails in with every physical fact.