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Admissibility of Psychiatric Testimony: A Case for Full
Disclosure, 53 Iowa L. Rev. 1287 (1968)

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 NOTES
ADMISSIBIUTY OF PSYCHIATRIC TESTIMONY:
A CASE FOR FULL DISCLOSURE

Psychiatrists, as expert witnesses,1 soon discover that much of the

testimony they wish to present at trial is inadmissible. In adhering to
the traditional rules of evidence, courts have attempted to restrict the
information upon which the psychiatrist may base his opinion. There
is reason to believe that this frequently leads to nondisclosure of the
complete basis of psychiatric opinions. As a result, psychiatrists, judi-
cial officers, and lawyers have called for a more meaningful utilization
of the unique expertise of members of the psychiatric profession. 2 This
Note will discuss the general rules and the Iowa position concerning
the admissibility of psychiatric testimony in relation to the desirability
and practical necessity of permitting, and possibly requiring, a com-
plete disclosure of the information that forms the basis of a psychi-
atrist's opinion. Special consideration will be given to the need for
full disclosure in criminal trials and trials involving a question of
testamentary capacity. In addition, various proposals for reform will
be made that are intended to lead to a better relationship between
law and psychiatry and to improve the trial process.

I. INTRODUCTION
The basic problem underlying the conflict between law and psychi-
atry is that some of the information that psychiatry finds useful, the
law finds repugnant. The law has traditionally insisted that only the
best available evidence be used at trial. Fraudulent and erroneous
testimony hinders the trial's search for truth. For this reason, when a
1
An expert need not be a specialist in the field in which he testifies. See Shover
v. Iowa Lutheran Hosp., 252 Iowa 706, 713, 107 N.W.2d 85, 89 (1961). Thus, a
general medical practitioner may testify as an expert in psychiatry. See In re
Estate of Springer, 252 Iowa 1220, 1230, 110 N.W.2d 380, 386-87 (1961). Iowa's test
for the admission of expert testimony is whether it will aid the jury and whether
the expert is qualified. See Kunzman v. Cherokee Silo Co., 253 Iowa 885, 890, 114
N.W.2d 534, 537 (1962). Whether or not the witness is an expert is a question for
the trial court to decide. See Prokop v. Houser, 245 Iowa 480, 483, 62 N.W.2d 781,
783 (1954).
2
See, e.g., W. WHrrE, INsANur AN =H CanNA. LAw (1923); Diamond &
Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Specu-
lations, 63 MicH. L. Pav. 1335 (1965) [hereinafter cited as Diamond]; Dieden &
Gasparich, Psychiatric Evidence and Full Disclosure In the Criminal Trial, 52
CALm. L. Ray. 543 (1964) [hereinafter cited as Dieden]; Guttmacher & Weihofen,
The Psychiatrist on the Witness Stand, 32 BosT. U. L. Rav. 287 (1952); Magnus,
Psychiatric Evidence in the Common Law Courts, 17 BAYLOR L. Rav. 1 (1965);
Overholser, The Psychiatristin Court, 7 GEo. WASH. L. REv. 31 (1938); Overholser,
The Place of Psychiatry in the Criminal Law, 16 BosT. U. L. RPy. 322 (1936).

1287
1288 IOWA LAW REVIEW [VoL. 53
person testifies as to a fact that can be perceived by the senses, he
must have actually observed such fact.3 Requirements that permit only
highly reliable information to be admitted at trial are reasonable and,
for the most part, are sound. To admit all testimony freely could
lead to fraud, error, and virtual chaos in the courtroom. Because it
is a truth-seeking process, there is a very practical need to sedulously
withhold from the decision maker all but the most reliable evidence.
The psychiatrist's professional methods, however, conflict with the tra-
ditional requirements of the rules of evidence. Although a psychi-
atrist is allowed to express an opinion while testifying as an expert,4
as an exception to the normal rule prohibiting opinion testimony, 5
much of the information that a psychiatrist would use in forming an
opinion is inadmissible at trial. In addition, the psychiatrist is in-
structed to disregard all inadmissible information when formulating
an opinion of an individual's mental condition. 6 Psychiatrists gener-
ally believe that they should be able to use and disclose to the jury
any information that they, as trained professionals, deem relevant.
The disclosure of the psychiatric reasoning behind the opinion, how-
ever, might do more harm than good because it would necessitate lec-
turing the jury on the theory of psychiatry or the intricacies of the
psychiatric school of thought to which the testifying psychiatrist sub-
scribes. The crucial need is for full use and disclosure of the infor-
mational basis of the opinion. For the psychiatrist, application of his
proven methods outweighs the demands of the rules of evidence. Al-
though some evidence may not meet the rigorous requirements of the
rules of evidence, it may be quite satisfactory for psychiatric purposes.
The question thus becomes whether the need for exclusion of ques-
tionable evidence is more important than allowing a psychiatrist to use
all the information that he deems relevant. This Note will attempt
to demonstrate the need for resolving this question in favor of the
psychiatrist's method.
As a matter of course, one of two possible harmful results must
obtain whenever some information that a psychiatrist may wish to
admit into evidence is excluded from trial. Possibly, the psychiatrist
will base his opinion solely on the information admitted into evidence
as instructed, thus ignoring information that he deems relevant. This
quite possibly leads to a disjointed and incomplete opinion that differs
from what he would like to present. Second, as one might reasonably
anticipate, the excluded information will still play a part in his opin-
ion, thus hiding the complete basis of the opinion from the jury.
The first possibility, that the psychiatrist will be forced to base his
opinion only on that information admitted into evidence, is quite likely
3 See C. McCoimnCK, LAw OF EVIDENCE § 10 (1954); 2 J. WiGaoRE, EvIDENCE 88
650-70 (3d ed. 1940).
4 See C. McCoincK, LAw oF EvIDCE § 13 (1954); 7 J. WiumoRE, EvIDENCE 8
1917, at 4-10 (3d ed. 1940).
5 See C. McComnncx, LAw OF EvEN CE 11 (1954); 7 J. Wi'GaoRE, EvIDncE §
1917, at 1-3 (3d ed. 1940).
6 See, e.g., Diamond 1350-54; Dieden 546-54; Guttmacher & Weihofen, supra
note 2, at 293-300; Morgan, Suggested Remedy for Obstructions to Expert Testi-
mony by Rules of Evidence, 10 U. Ciir. L. Rsv. 285, 292-94 (1943); Rheingold, The
Basis of Medical Testimony, 15 VA~N. L. REv. 473, 526-31 (1962).
19681 NOTES 1289
the result that the psychiatrist finds most objectionable. 7
A well-
trained psychiatrist learns to search for and use every scrap of avail-
able information concerning the patient in order to establish a firm
foundation upon which to base an opinion of the patient's mental con-
dition. To require him to cast aside some relevant information be-
cause it is barred by the rules of evidence is to destroy the process by
which he works. A competent psychiatrist rebels against fragmenta-
tion evaluations of a person's mental condition. 9 To him, the informa-
tion that the court excludes may be just as important to his opinion
as the information that is admitted into evidence. In his capacity as
an expert, a psychiatrist is likely to be far better qualified than a court
of law to judge what information is valuable and relevant to a psychi-
atric opinion. 0 Psychiatrists themselves argue that once he has deemed
a piece of information worthy of consideration in forming his opinion,
the courts should pay heed to his determination and allow that infor-
mation to serve as part of the basis of his opinion."
The effect of the second possibility, that of hiding the true basis
from the jury, may be discomforting to the psychiatrist, because the
effectiveness of psychiatric testimony depends upon full disclosure and
the psychiatrist is forced to ignore the rules of the court and possibly
misrepresent himself. 12 Moreover, the law itself finds the second pos-
sibility reprehensible. An expert witness serves as an aid to the trier
of fact. He does not supplant the jury, which may accept or reject
his opinion."1 If the jury is to weigh and evaluate the testimony of a
psychiatrist properly, it must know the true basis of the opinion. It
seems reasonable to assume that a better-informed jury would arrive
at a better-reasoned decision. To this end, the jury should be aware
of all information that the psychiatrist has relied upon, especially in
those cases in which the opinions of two psychiatrists are in conflict.' 4

7See Diamond 1343-54.

8 Id. at 1350.
9 Indeed, the psychiatrist argues that a valid psychiatric opinion cannot be given
unless all relevant information is considered. See Diamond 1346, 1350.
10 On the psychiatrists ability to determine what is relevant, it has been said:
The psychiatrist is perfectly aware of the fact that the clinical history
obtained from the patient is distorted and self-serving. He knows that the
information provided by family and friends may have relatively little
validity and that the psychological test report, or the nurses' notes, or the
consultation reports of other physicians are not the whole story of the
case. The psychiatrist is especially trained to assimilate information from
a wide variety of sources, to evaluate each fact, to discount some, to
emphasize others, and to ignore still others. He then makes his own
personal observations of his patient, puts everything together, and arrives
at a conclusion. Diamond 1353.
"1 See C. McCoaxicK, LAw oF EvmiDca § 16, at 33 (1954).
The concept, simply put, is that the doctor validates what he uses. He
follows a process scientifically ingrained: he analyzes what he hears, casts
out what seems inaccurate, pulls together the rest and reaches an opinion
and course of action. Rheingold, supra note 6, at 532.
12 See Diamond 1353.
"3See Lessenhop v. Norton, 153 N.W.2d 107, 114 (Iowa 1967)..
34 See Magnus, supra note 2, at 9-13. Evidence exists that when conflicting
psychiatric opinions are given, the courts and juries are highly skeptical of the
1290 IOWA LAW REVIEW [Vol 53
Naked or fragmented opinions that reveal little or no expressed bases
are of little aid to the jury in its evaluation of such opinions. In order
to decide intelligently which opinion is more sound, the jury must
know the true bases that the psychiatrists relied upon.
Because psychiatrists are restricted in their testimony, one of these
two undesirable results is likely to obtain in almost every trial in which
psychiatric testimony is given. It is presumptuous of the law to think
that the rules of evidence could effectively limit a psychiatrist to basing
his opinion only on that information introduced at trial. A man can't
reasonably be expected to be able to blank out part of what he con-
siders to be relevant to his opinion, especially when this is contrary
to his professional training. Consequently, it appears that the result
most likely to obtain is the hiding of the true basis from the jury. To
avoid any undesirable results, provide better information to the jury,
and promote better relations between law and psychiatry, it is sug-
gested that as a practical necessity the psychiatrist be permitted to
disclose fully the basis of his opinion.
A number of arguments against allowing psychiatrists to use nor-
mally inadmissible evidence have been raised. First, there is no assur-
ance that the psychiatrist will do his best to ascertain the truth of some
information before using it in forming his opinion. Trustworthiness,
however, is a problem with all witnesses, not just psychiatrists. In
addition, seldom does one item of information, without corroborating
evidence, substantially affect a psychiatrist's opinion. Furthermore,
a psychiatrist in giving a professional opinion is always open to the
censure and criticism of his fellow psychiatrists. With his professional
reputation at stake, he has added incentive to use only that informa-
tion that would be acceptable in the psychiatric community. Another
argument is that allowing or requiring full disclosure will encourage
the jury to act as amateur psychiatrists, leading to second-guessing of
the psychiatrist's opinion. But this problem is present any time an
opinion is given in testimony, and the danger that exists in psychiatric
testimony is not significantly greater than in testimony of a different
nature. Furthermore, the need for making a full disclosure so the
jury can properly weigh the testimony would seem to outweigh any
dangers of second-guessing. Finally, a problem may arise as to the
prejudicial effect of some information if the psychiatrist makes a full
disclosure.15 Either the patient or another party may be greatly prej-
udiced by some information that would normally be held inadmis-
sible. This Note will not attempt a consideration of any prejudicial
effects except to point out that some information might be prejudicial
and subject to an objection of irrelevancy. The probative value of
such information found within the context of a psychiatric evaluation
should be balanced by a court with the prejudice, time consumption,
or surprise that it may entail.

value of such opinions and fall back upon common sense and their own personal
knowledge in reaching a decision.
10 A situation can be hypothesized in which it comes to the psychiatrist's atten-
tion that the accused had engaged in continued deviant acts with children and was
a confirmed voyeur. While this information may be very relevant to a psychiatric
opinion, its disclosure in court may have a prejudicial effect.
1968] NOTES 1291
II. THE OBJECTIONABLt RuLES OF EVIDENCE

Most state supreme courts, including the Iowa Supreme Court, do

not allow a psychiatrist to make a full disclosure of the basis of his
opinion. However, the problems psychiatrists face in presenting their
testimony have not gone unrecognized by the court. As early as 1907,
the court paid lip service to the idea that a physician should be allowed
to make a more revealing disclosure to the jury."6 The court more
recently noted that considerable leeway should be allowed in the ad-
missibility of opinion testimony, whether lay or expert, because it re-
mains an opinion that the jury is at liberty to reject.17 However, the
liberality espoused in these cases has not been pursued by the court
with any measure of consistency. As in most jurisdictions, the Iowa
rules of evidence greatly impede the use of psychiatric testimony,
In order to understand the psychiatrist's needs, it is necessary to
review those areas in which the psychiatrist encounters problems of
inadmissibility, 9 the general rules in the areas, and the Iowa rules
that apply.

A. Hearsay and Opinion

The psychiatrist often encounters admissibility problems when he
attempts to base his opinion upon hearsay or the opinions of others.
Hearsay evidence is "testimony in court or written evidence, of a state-
ment made out of court, such statement being offered as an assertion
to show the truth of matters asserted therein, and thus resting for its
value upon the credibility of the out-of-court asserter. ' 20 Even expert

16 See State v. Blydenburg, 135 Iowa 264, 274-75, 112 N.W. 634, 638-39 (1907),
where the court said, quoting from Barber v. Merriam, 93 Mass. 322, 324 (1865):
But it is obvious that it would be unreasonable, if not absurd, to receive
the opinion in evidence, and at the same time shut out the reasons and
grounds on which it is founded. Such a course of practice would take
from the consideration of a court and jury the means of determining
whether the judgment of the expert was sound and his opinion well
7 founded and satisfactory.
1 See Lessenhop v. Norton, 153 N.W.2d 107, 114 (Iowa 1967).
'SAs will be discussed later, one of the bright points in the admissibility of
psychiatric testimony in Iowa concerns the recognition of the theory of diminished
responsibility in criminal law. See notes 90-94 infra and accompanying text.
19 At this point it may be illustrative to hypothesize a fact situation to show
how a psychiatrist gathers his background material.
Suppose that the accused is to stand trial for first degree murder and plans to
use the insanity defense. The psychiatrist would conduct a personal examination
of the accused, interviewing him and administering various psychiatric tests. He
might then discuss these results with fellow psychiatrists to get their views on
the results. He might inquire of friends, neighbors, and acquaintances of the
accused as to his past behavior. He might study the reports of any past psychia-
tric treatment and might ask the opinion of any psychiatrist who had treated him
previously. He might check the police record, prison and probation reports, and
the reports of a parole officer if the accused had ever been in trouble before. All
in all, the psychiatrist tries to gather all the information that he can concerning
the2
accused in order to get as complete a background for study as possible.
0 C. McCoamcx, LAw or Evrmucr § 225, at 460 (1954).
1292 IOWA LAW REVIEW [Vol. 53
witnesses are not permitted to give testimony at trial based upon hear-
say.212 2 Various reasons have been put forth to support the hearsay
rule, including a fear of inaccurate and fraudulent evidence and a
lack of opportunity to cross-examine the person who made the out-of-
court statement.2 3 Because the psychiatrist relies to a great extent
upon information that the law regards as hearsay, he is frequently
denied a large portion of the information that he deems relevant to
his opinion. Unless evidence is introduced at trial concerning out-of-
court statements, medical reports, and other information that may be
regarded as hearsay, the psychiatrist's opinion based 24 thereon will
probably be held inadmissible under the hearsay rule.
In addition, the psychiatrist may not be able to base his opinion on
some information even though admitted into evidence. For example,
in Iowa an expert cannot base his opinions in whole or in part upon
opinions of either laymen or experts, even though such opinions have
been admitted into evidence.25 Opinions are normally questionable
in the eyes of the law, and an opinion built upon an opinion is doubly
suspect.
As a practical matter, however, the effects of the rules of evidence
are often avoided by the courts, and a psychiatrist is allowed to give
his opinion even though it is based on hearsay or the opinions of
others.26 This is accomplished in two ways. First, the trial court may
simply ignore the traditional rules and admit an opinion based on
hearsay or the opinions of others.27 Psychiatrists have declared that
this is a very frequent occurrence, although the admission of such
opinions doesn't always show up in the appellate court review. 28 Sec-
ond, the witness may simply claim that his opinion was not based on
such information.2 9 Neither of these is a satisfactory method of solving
the problem. One method flagrantly abuses existing rules, thus creat-
ing disrespect for the legal system, while the other hides from the
jury the true basis of the opinion.
The Iowa rules on hearsay and opinion are in accord with the gen-
eral rules; however, special problems arise when the expert attempts
to introduce an opinion based on hearsay or opinions from various
different sources. What follows is the Iowa position on the admissi-
bility of such opinions.
If evidence is introduced at the trial concerning statements made
by the subject, the subject's conduct, or hospital charts and other
records, the psychiatrist can give an opinion based in part upon such
evidence because it has been properly admitted before the court. How-
21
See State v. Beckwith, 243 Iowa 841, 848-49, 53 N.W.2d 867, 871 (1952).
22
For a history of the rule see 5 J. WiaoRE, EViENCE § 1364 (3d ed. 1940).
23
See M. LADD, CASES AND MATERIALs oN =E LAW oF EvmENcE 381 (1955).
24 See Dieden 549.
25
See Dulansky v. Iowa-Illinois Gas & Elec. Co., 10 F.R.D. 566, 576 (S.D. Iowa
1950); Ipsen v. Ruess, 239 Iowa 1376, 1388, 35 N.W.2d 82, 91 (1948).
26 See Diamond 1353.
27 Id. at 1352.
28 Id.
20 Id. at 1353. See State v. Beckwith, 243 Iowa 841, 848-49, 53 N.W.2d 867, 871
(1952), where a doctor said he used only his personal examination in forming his
opinion although he had received other information from third parties.
1968] NOTES 1293
ever, difficulties arise when he attempts to base his opinions on infor-
mation that is not a part of the record.
It is clear that if the expert bases his opinion wholly on his personal
examination of the subject and discounts any reliance on statements
made by the subject, the opinion is admissible and cannot be excluded
under the hearsay rule.3 0 It also seems clear that the expert cannot
give an opinion based entirely upon statements made by the subject
concerning his case history.3 1 However, in some instances the medical
expert has been allowed to give an opinion based in part upon the
patient's history as told by the patient himself. 32 The court has called
this a "valuable aid in the discovery of truth. ' 33 However, if the ex-
pert examined the patient only for the purpose of qualifying as an ex-
pert witness in a forthcoming trial, such statements will not be allowed
as a partial basis for the expert's opinion. 34 It is thought that state-
35
ments made under those conditions are colored and self-serving.
Nevertheless, if facts are presented in evidence that tend to establish
the patient's history as it was related to the expert, the fact that he
bases his opinion on the statements of the patient is not a bar to admis-
sibility of the testimony. 36 This is not much of a concession to disclo-
3
0 See State v. Beckwith, 243 Iowa 841, 849, 53 N.W.2d 867, 871 (1952).
31 Although no Iowa cases have been decided directly on point, it appears that
some treatment of the patient is required before any statements by the patient
concerning his case history may be used as a partial basis for an opinion. The
statements would normally be excluded as hearsay and denied as a partial basis
for an opinion if the psychiatrist were engaged solely to qualify as an expert. See
notes 30-36 infra and accompanying text. However, when the statements arise
out of the course of treatment, a presumption exists that they are truthful because
the patient presumably would not lie at a time when he was seeking aid. See
Mitchell v. Montgomery Ward & Co., 226 Iowa 956, 959, 285 N.W. 187, 188 (1939).
Therefore, it appears that the presumption would not arise in a situation in which
the person was not under the treatment of a psychiatrist. However, language is
present in the cases to the effect that the restriction on case histories as told by
the patient only applies when the psychiatrist is engaged solely to qualify as an
expert. See Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1017, 82 N.W.2d 82, 89
(1957). Therefore, it might be argued that if the psychiatrist were not engaged
solely to qualify as an expert, an opinion based entirely upon the case history as
related by the patient should be admissible. As a practical matter, however, the
question will probably never arise because the psychiatrist will be making a
personal examination of the person even while the case history is being told, and
in such situations he will be able to base the opinion upon the personal examina-
tion and the case history combined.
32See, e.g., Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1018-19, 82 N.W.2d 82,
90 (1957); Little v. Maxwell, 183 Iowa 164, 169-70, 166 N.W. 760, 762 (1918); State
v. Blydenburg, 135 Iowa 264, 276, 112 N.W. 634, 639 (1907).
33 State v. Blydenburg, 135 Iowa 264, 276, 112 N.W. 634, 639 (1907).
34
See, e.g., Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1017, 82 N.W.2d 82, 89
(1957); Devore v. Schaffer, 245 Iowa 553, 555 65 N.W.2d 1017, 1021 (1954); State
v. Beckwith, 243 Iowa 841, 849, 53 N.W.2d 867, 871 (1952).
35 See, e.g., Devore v. Schaffer, 245 Iowa 1017, 1021, 65 N.W.2d 553, 555 (1954);
State v. Beckwith, 243 Iowa 841, 849, 53 N.W.2d 867, 871 (1952); Mitchell v. Mont-
gomery Ward & Co., 226 Iowa 956, 959, 285 N.W. 187, 188 (1939).
36 Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1018-19, 82 N.W.2d 82, 90 (1957);
1294 IOWA LAW REIEW [Vol. 53

sure, however, because the expert in effect is doing nothing more than
basing his opinion on his own examination and the facts introduced at
trial, which meets the court's normal test for admissibility.
When the psychiatrist attempts to base an opinion on out-of-court
statements by third persons concerning the patient, it appears that the
opinion will generally be held to be inadmissible on hearsay grounds.3
Such statements, however, may form at least a partial basis for the
opinion if extraordinary conditions exist, such as a factual foundation
in the admitted evidence that supports such statements, in which case
the introduction of the opinion would not be prejudicial to the other
party. 8 The fact that the third party is another expert in the area
has no effect on the rule.30
Special hearsay problems arise when an expert attempts to base an
opinion on written works by authorities in the area. The written
word by an expert is clearly a form of hearsay, and there is a danger
that juries might be overly impressed by such works.40 Nevertheless,
psychiatrists are permitted to base their testimony on what they have
learned from these authorities, 4' even though the books may not be
read or quoted in court in support of an opinion.42 The very realistic
rationale behind this rule is that experts need not gain all of their
knowledge from personal experience but may acquire it from author-
ities.4 3 The rule against using books in court is relaxed upon cross-
examination, however, and an expert may be questioned in regard to
his knowledge of an authority's teachings if he demonstrated some
reliance upon an authority.4 4 Iowa uses the less strict rule that the
expert need not specifically mention a book before he can be cross-
Little v. Maxwell, 183 Iowa 164, 169-70, 166 N.W. 760, 762 (1918). But see Devore-
v. Schaffer, 245 Iowa 1017, 1027-30, 65 N.W.2d 553, 558-60 (1954), where a strong
dissent points out that the court ignored the normal rule that an opinion based
partially on hearsay is admissible if support for the opinion is found in other
evidence already introduced at trial. The dissent charges that the court seized
upon the relatively trivial point that the doctor was appointed solely to qualify
as a witness in order to reverse the lower court.
37 See State v. Beckwith, 243 Iowa 841, 849, 53 N.W.2d 867, 871 (1952). The most
recent word on this subject is Dougherty v. Boyken (filed Jan. 9, 1968, Iowa Sup.
Ct.). A more liberal view is found in Withers v. Director, 244 Md. 702, 703-04,
223 A.2d 796, 797 (1966) (allowing opinion based in part on out-of-court state-
ments from other doctors).
38 See Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1018-19, 82 N.W.2d 82, 90
(1957); Little v. Maxwell, 183 Iowa 164, 169-70, 166 N.W. 760, 762 (1918).
00 See, e.g., Dulansky v. Iowa-Illinois Gas & Elec. Co., 10 F.R.D. 566, 576 (S.D.
Iowa 1950); In re Estate of Scanlan, 246 Iowa 52, 54, 67 N.W.2d 5, 6 (1954); Ipsen
Ruess, 239 Iowa 1376, 1388, 35 N.W.2d 82, 91 (1948).
v. 40
See Dieden 548.
41
See Prokop v. Houser, 245 Iowa 480, 483, 62 N.W.2d 781, 783 (1954); State v.
Donovan, 128 Iowa 44, 48, 102 N.W. 791, 793 (1905).
42
See Morton v. Equitable Life Ins. Co., 218 Iowa 846, 857, 254 N.W. 325, 330
(1934); Ingwersen v. Carr & Brannon, 180 Iowa 988, 1002, 164 N.W. 217, 222 (1917).
43 See State v. Donovan, 128 Iowa 44, 48, 102 N.W. 791, 793 (1905).
44 See e.g., Madsen v. Obermann, 237 Iowa 461, 468, 22 N.W.2d 350, 355 (1946);
Morton v. Equitable Life Ins. Co., 218 Iowa 846, 857 254 N.W. 325, 330 (1934);
Ingwersen v. Carr & Brannon, 180 Iowa 988, 1002, 164 N.W. 217, 222 (1917).
168] NOTES 1295
examined from it. 4 5 He need
46
only say that he relied on some authority
in formulating his opinion.
One further problem in this area involves the admissibility of opin-
ions based on hospital charts and records, and other similar material.
A psychiatrist may base his opinion on the facts that appear on such
charts and records, but not upon any other doctor's opinions that are
also present thereon.47 Quite obviously, a major problem involved
here is the determination of what is fact and what is opinion.4S Any
testimony of an incident involves the witness' impressions of what
occurred, and this necessarily involves both fact and opinion.4 9

I. HYPOM ICAL QUESTIONS

Frequently an expert is asked to give his opinion in answer to a
hypothetical question based on assumptions of fact. 50 The court and
the jury thereby receive the benefit of the expert's opinion, although
he has no personal knowledge concerning the person involved. This,
it might be argued, is the major contribution of the hypothetical ques-
tion: it allows testimony by the "super expert" who may be eminent
in his field, but is unfamiliar with the facts or person involved in the
case at bar.51 However, even though it has been heralded as one of
the truly scientific rules of evidence, 5 2 the hypothetical question has
been attacked by the judiciary, 53 the medical profession,54 and eminent
legal writers.55 Criticisms of the device are that its mechanics are
burdensome and self-defeating, that it leads to distrust of expert testi-
mony, and that it does not achieve its goal of presenting useful infor-
mation to the jury but, rather, tends to confuse them.
It is obvious that the mechanics of the hypothetical question may
45 See State v. Blackburn, 136 Iowa 743, 747, 114 N.W. 531, 533 (1908); Cronk
v. Wabash R.R., 123 Iowa 349, 351, 98 N.W. 884, 885 (1904).
46 The stricter rule requires that the expert make a specific reference to a book
before he can be cross-examined from it. For a discussion of these rules see Wil-
lens, Cross-Examining the Expert Witness With the Aid of Books, 41 J. Camn.
L.C. & P.S. 192, 193-95 (1950).
47 See, e.g., Hemker v. Drobney, 253 Iowa 421, 430, 112 N.W.2d 672, 677 (1962);
In re Estate of Scanlan, 246 Iowa 52, 54-55, 67 N.W.2d 5, 6-7, 1954); Ipsen v.
Ruess, 239 Iowa 1376, 1388-89, 35 N.W.2d 82, 91 (1948).
48 See In re Estate of Scanlan, 246 Iowa 52, 54-55, 67 N.W.2d 5, 6-7 (1954);
Ladd, Expert Testimony, 5 VAND. L. REv. 414, 415-16 (1952).
49 See C. McCoasucx, LAw or EVmNCE § 11, at 22 (1954); 7 J. WcmxoRn, Evi-
DENCE §1919 (3d ed. 1940).
50 See C. McComicx, LAw or EVIDENCE §§ 14, 16 (1954); 2 J.WIGWORE, EVIDENCE
§§ 672-86 (3d ed. 1940).
51 See Ladd, supra note 48, at 425-26.
52
See 2 J.WIGmOnE, EVIDENCE § 686 (3d ed. 1940).
53
See, e.g., JUDGE LEARNEDMTum, NEw YORK BAat AssociATION LEcTUREs ON LEGAL
Topics (1921-1922).
54 See W. WanE, supra note 2, at 81-88; Hulbert, PsyjchiatricTestimony in Pro-
bate Proceedings, 2 LAW & CoNmip. PROB. 448, 454-57 (1935).
55 See 2 J. WIGmoRE, EVIDENCE § 686 (3d ed. 1940); McCormick, Some Observa-
tions Upon the Opinion Rule and Expert Testimony, 23 TExAs L. REv. 109, 128-
30 (1945); Morgan, supra note 6, at 294-96.
1296 IOWA LAW REVIEW [Vol 53

indeed be burdensome. Lengthy questions that bring in all of the as-

sumptions upon which the expert is to base his testimony create dis-
turbing breaks in continuity" and are responsible for much confusion
among the jury.5 It is also apparent that it creates distrust of the
expert's testimony. Because important facts may be included in the
question propounded to one expert and excluded from the question
asked another,5 s the jury may get the impression from the totally dif-
ferent answers given in response that what is taking place before them
is a mockery, a battle of partisans who slant their testimony to sup-
port their side of the dispute.59 Thus, the hypothetical question has
been blamed for the saying that "experts always disagree."6° A clever
one-sided question that impeaches the testimony and integrity of the
opposing expert would surely leave a jury with that impression.
However, as serious as these charges may be, possibly the most dif-
ficult problem with the hypothetical question is that it cannot portray
an accurate representation of the party concerned61 ; it creates an arti-
ficial being in an artificial fact situation that may bear little, if any,
likeness to the subject. 62 The psychiatrist feels that it is highly un-
likely that any hypothetical question can furnish a proper basis for
a psychiatric opinion.63 In addition, he feels that it is impossible for
him to fragment his testimony and tell accurately what portion of his
opinion is a result of personal observation and what is a result of hear-
say. 4 Perhaps the other faults of the hypothetical question could be
overlooked if the device only did what it is supposed to do, which is
to portray accurately a situation like the one at hand so the jury
could benefit from the expert's opinion on the matter. Furthermore,
because the parties slant their questions to favor their contentions, im-
portant facts may be totally ignored, and the jury may show a tend-
ency to believe that the given assumed facts are actually the truth
because of the practice of repeating the6 assumed
5 facts over and over
until the aura of an assumption is gone.
In spite of the many attacks upon the hypothetical question, Iowa,
like most states, still permits its use.66 On its face, when considered
from a very practical standpoint in relation to other restrictions in the
rules of evidence, it would appear to be a very helpful device, espe-
cially when the "super expert" is concerned. But even this argument
56 See W. WHrrs, supra note 2, at 254.
57
See Guttmacher & Weihofen, supra note 2, at 301-02.
58 See McCormick, supra note 55, at 128-29; Overholser, The Psychiatrist in
Court, 7 GEo. WASH. L. REv. 31, 42 (1938).
GO
60
See Magnus, supra note 2, at 10; Overholser, supra note 58, at 42-43.
See Overholser, supra note 58, at 42.
6
1See Overholser, The Place of Psychiatry in the Criminal Law, 16 BosT. U.
L. Rav. 322, 328 (1936).
62 Id.
63 See Diamond 1346.
04 Id. at 1350.
65 See Guttmacher & Weihofen, supra note 2, at 302.
66
The rule appears to be that a hypothetical question must contain a full
and fair recital of all relevant and material facts already in evidence on
the theory of the party propounding it, but it need not embrace all of the
facts in the case or state the other parties' contentions or disputed matters.
Boegel v. Morse, 251 Iowa 1253, 1257-58, 104 N.W.2d 826, 829 (1960).
19681 NOTES 1297
overlooks the fact that when you are dealing with "super experts" who
lack personal knowledge of the individual concerned, you are dealing
in the most artificial framework imaginable. It might be questioned
as to how much value such an artificial opinion could be to a jury.
Nevertheless, there are those who support the device as a practical
necessity and argue that it will remain important until the whole area
of opinion evidence is reconstructed 6 and that it is as basic to law
as is the syllogism. 68 The device, however, may have practical utility
in a limited capacity and may constitute a necessary evil.
IV. ULTIMATE ISSUE
The rule against opinions on the ultimate issue also causes problems
of inadmissibility. This rule holds that a witness, including an expert,
cannot give an opinion on the ultimate issue in the case at bar.69 The
justification for inadmissibility in this area is that to allow such an
opinion would invade the province of the jury.' 0 The expert cannot
decide that which is the responsibility of the trier of fact. Unfortu-
nately, the expert's opinion on the ultimate issue, especially in difficult
and complex areas such as psychiatry, is precisely what the jury needs
to help it arrive at a just decision.L7 The expert's opinion is necessary
to draw inferences from the facts that may be beyond the abilities
of the jury. However, it is feared that the jury will be overly im-
pressed by the opinion of the expert. Although the jury is not normally
bound by the opinion of the expert 7 2 as a practical matter an opinion
on the ultimate issue would surely weigh heavily on their decision.
The rule has been soundly criticized.73 One criticism is that it is
nothing more than a burdensome impediment that is easily circum-
vented. A hypothetical question that elicits an expert's opinion to a
situation similar to the one at bar easily reveals to the jury how the ex-
pert would respond to a question on the ultimate issue.7 4 In addition,
the rule is not always followed. A leading Iowa case, Grismore v.
Consolidated Products Company,75 held such an opinion to be admis-
sible, the court saying that such opinions should be admitted when-
ever they are necessary to an intelligent determination of an issue by
the trier of fact. 76 Hopefully, courts are always interested in intel-
67See Ladd, supra note 48, at 425.
68
See Brand, The In.sanity Defense, 9 ORE. L. REv. 309, 322-23 (1930). The
author asserts that "the hypothetical question can never be wholly abolished un-
lil the reformers also abolish the syllogism as a method of reasoning . . . "
69 See Dieden 560. Note 100, infra, gives the Model Code of Evidence rule that
proposes that such an opinion be allowed.
70See C. McCoRmic, LAW OF EvmnEcE § 12 (1954); 7 J. WiGmoRo, Evimsc §
1921 (3d ed. 1940).
71 See Dieden 561.
72 See Lessenhop v. Norton, 153 N.W.2d 107, 114 (Iowa 1967).
73 See 7 J. WIGon, EvMIENCE § 1921 (3d ed. 1940); Dieden 560-61; McCormick,
supra note 55, at 117-21.
74 See Ladd, Expert and Other Opinion Testimony, 40 Mum. L. Rnv. 437, 445
(1956).
75 232 Iowa 328, 5 N.W.2d 646 (1942).
76 Id. at 343-44, 5 N.W.2d at 655; see McCormick, supra note 55, at 118.
1298 IOWA LAW REVIEW [Vol 53

ligent determinations of issues. Courts that are more liberal allow

the opinion on the ultimate issue whenever it is calculated to aid the
jury appreciably in coming to a decision.77 In addition, in some juris-
dictions expert opinion on the ultimate issue in some cases 78
has been
held to be not only permitted but also required as well.
In allowing the opinion on the ultimate issue in Grismore, the Iowa
Supreme Court noted that, contrary to its prior decisions,79 the mod-
ern, liberal view finds such opinions to be admissible.8 0 The opinion
was allowed, said the court, because in areas in which the jurors can
only grope blindly, an expert's opinion on the ultimate issue is neces-
sary to reaching an intelligent decision. 1 However, the court noted
that the opinion testimony should be received only as to such matters
as are proper subjects of opinion testimony.8 2 Thus, the opinion must
be based on questions of fact and not questions of law or mixed ques-
tions of law and fact.8 3 This requirement eliminates opinion testimony
as to guilt or innocence, criminal responsibility or irresponsibility, and
capacity to execute a will.8 4 The Iowa court still adheres to this rule, 0
which does not embrace an opinion given as to a person's sanity.86 The
question of sanity is a proper subject of opinion testimony; the issue
that cannot be passed on is the accused's guilt or innocence.

V. CanvENAL LAW
Thus far this Note has discussed the need for full disclosure of
psychiatric testimony and has pointed out the difficulties posed by the
rules of evidence. In two areas, criminal trials and those involving a
question of testamentary capacity, there exists a critical need for a
more complete disclosure of such evidence. The very character of a
criminal trial demands that everything possible be done to ensure that
justice is achieved. A man's freedom, and possibly his life, is at stake,
and because he is presumed to be innocent until proven guilty, he de-
serves all the protection society can give him. To relax the rules of
evidence to permit the psychiatrists to disclose all information they
feel relevant to their opinion is not a high price to pay in giving a
jury a better foundation upon which to reach a verdict.
77
See United States Smelting Co. v. Parry, 166 F. 407, 410-11 (8th Cir. 1909).
A good discussion of the various positions taken by the courts is found in Mc-
Cormick, supra note 55, at 118-19.
78
See Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600 (1937); Hall v. Nagel,
1397 Ohio St. 265, 39 N.E.2d 612 (1942).
0
The excellent opinion by Justice Bliss contains a scholarly account of the
liberalizing trend that preceded the Grismore decision. 232 Iowa at 343-59, 5
N.W.2d at 655-62.
80 232 Iowa 328, 343, 5 N.W.2d 646, 655 (1942).
S Id. at 343-44, 5 N.W.2d at 655.
82 Id. at 361, 5 N.W.2d at 663.
83 Id.
84 Id.
85 See State v. Jiles, 258 Iowa 1324, 1331, 142 N.W.2d 451, 455 (1966); In re
Estate of Plumb, 256 Iowa 938, 946, 129 N.W.2d 630, 635 (1984).
80
See Grismore v. Consolidated Prod., 232 Iowa 328, 359, 5 N.W.2d 646, 662.
(1942).
1968] NOTES 1299

As a practical matter, courts have recognized the need for better

disclosure in criminal trials and, to some extent, have provided for
such disclosure by being lenient in allowing defense psychiatrists to
3 7
admit testimony normally excluded by the rules of evidence Con-
versely, the courts are more restrictive in allowing such evidence to
be admitted by the prosecution.8 The need for more disclosure to
ensure a just result is therefore admitted by the courts when a man's
freedom hangs in the balance.
Another reason to allow full disclosure in the criminal trial is the
nature of the determination that must be made under the "right and9
wrong" test of criminal responsibility to which Iowa is committed.
This test is inherently fraught with problems, as the running dispute
on this subject between psychiatry and the law well attests. The
psychiatrist has to give up his familiar concepts such as psychoses
and neuroses and deal instead with the legal concepts of insanity and
"right and wrong." His effectiveness is arguably reduced by this fact
alone. Indeed, he may become confused and frustrated by working
with such foreign concepts. It is reasonable to assume that in such an
atmosphere the jury would also be confused. In an attempt to avoid
confusion as much as possible and to give the jury more benefit of
the true basis of the psychiatrist's opinion, full disclosure should be
allowed.
1
In addition, states such as Iowa90 and California that recognize the
theory of diminished responsibility have further reason to allow full
disclosure in the criminal trial. Under this theory, testimony is used
to show that the specific intent required of some crimes was not pres-
ent when the act occurred.92 In State v. Gramenz,93 the Iowa Supreme
Court noted that psychiatric testimony has become very significant in
past years, 94 and it showed a very receptive disposition toward the ac-
ceptance of psychiatric testimony to show diminished responsibility.
Since Iowa has recognized that diminished responsibility can lead to a
conviction under a lesser offense because of lack of specific intent, the
relevance of psychiatric testimony has been greatly expanded. As in
the "right and wrong" test, the concept of diminished responsibility
may be hard for jurors to grasp, and in order to best avoid confusion
and ensure justice, full disclosure should be allowed. Gramenz has
opened the door for greater use of psychiatric testimony; however, the
courts should not stop there but should work toward making better
use of such testimony.
One further argument can be made in support of full disclosure in
the criminal trial. There is good reason to believe that the lack of
87
See Diamond 1352.
88 Id.
89 The "right and wrong" test requires that the defendant's mental illness be
such that it destroys his power rationally to comprehend the nature or con-
sequences of his act. See State v. Gramenz, 256 Iowa 134, 138, 126 N.W.2d 285,
288 (1964.)
90 Id. at 140, 126 N.W.2d at 289.
91
See People v. Wells, 33 Cal. 2d 330, 202 P.2d 53 (1949).
92 See State v. Gramenz, 256 Iowa 134, 138-39, 126 N.W.2d 285, 288 (1964).
93 256 Iowa 134, 126 N.W.2d 285 (1964).
94 Id. at 140, 126 N.W.2d at 289.
1300 IOWA LAW REVIEW EVoA 53

respect shown psychiatric evidence and the general attitude of distrust

toward it are due in large part to the "battle of experts" that frequent-
ly develops in a criminal trial.95 Full disclosure would do much to-
ward creating more respect for psychiatric testimony in such instances,
thus making the testimony more beneficial to the jury.

VI. TESTA1IENTARY CAPACITY

The lack of respect and deference shown psychiatric testimony is

well illustrated by cases involving the issue of testamentary capacity.
In some cases replete with expert testimony, courts have ignored the
expert's opinions either in favor of lay testimony or even in the absence
of testimony to the contrary."6 Such decisions are extraordinary in
that the court is, in effect, saying that it is a better judge of the capacity
of the testator to understand and execute a will than are experts on
mental disorders. 7 In the vast majority of cases, the psychiatrist who
testifies in court in a dispute over a will has never seen the testator.
Because the testator is not available for a personal examination, the
psychiatrist is left with things such as notes from other doctors, rec-
ords, and statements about the deceased. Upon that information he is
to form an opinion concerning the deceased's mental condition at the
time he made the will. In short, he must work with what the law
regards as hearsay and opinion. Some of this evidence may be ad-
mitted at the trial, and the psychiatrist may then respond to hypo-
thetical questions based upon assumptions of fact. Some of it, how-
ever, will possibly be found to be inadmissible under the hearsay and
opinion rules. Thus, the psychiatrist finds himself unable to disclose
fully the true basis of his opinion. He becomes of limited use to the
jury. Responses made to the hypothetical questions from the plain-
tiff's counsel will most likely differ markedly from responses made
to questions posed by the defendant's counsel. The opposing counsel
can be expected to add to, or eliminate from, their questions various
facts that are in dispute. This whole process is disruptive and confus-
ing to the jury, and here, where it is quite likely to occur, remedy is
sorely needed.
In addition, there is evidence that lower court rulings based on ex-
pert testimony that the testator lacked testamentary capacity are some-
times reversed because appellate courts are more concerned with the
equities of the situation than they are in heeding the concept of testa-
mentary capacity. 8 Besides the fact that this flies in the face of the
concept of freedom of disposition, such rulings create further animosity
between psychiatry and the law. Psychiatrists often feel bitter when
05 See Green, Proof of Mental Incompetency and the Unexpressed Major Premise,
53 YALE L.J. 271, 285 (1944).
06 See id. at 284-85. Even though there was no contradictory expert testimony
present, a heavy amount of expert testimony was cast aside by the court in Des
Moines Nat'l Bank v. Chisholm, 71 Iowa 675, 681-82, 33 N.W. 234, 237-38 (1887).
The court showed deference for such undisputed testimony, however, in In re Will
of Behrend, 227 Iowa 1099, 1105-06, 290 N.W. 78, 82 (1940).
97 See Green, supra note 95, at 285.
08 See Epstein, Testamentary Capacity,Reasonableness and Family Maintenance:
A Proposalfor Meaningful Reform, 35 T=nP. L.Q. 231 (1862).
1968] NOTES

their honest efforts are cast aside and a clear case of lack of testamen-
tary capacity is reversed for "lack of evidence." It is reasonable to
assume that if full disclosure were allowed, the psychiatrist could lay
a better foundation for his opinion, and fewer reversals would occur.
Respect for, and recognition of, the competency of psychiatric tes-
timony must be present if it is going to be of maximum value to the
courts. Psychiatrists say that they want the law to quit "playing
games" with them.9 9 Allowing full disclosure seems to be an easy and
sensible way this could be done.

VII. REFomv PRoposALs

Many effective reforms are available to correct the problems sur-
rounding the admissibility of psychiatric testimony. Some of these
reforms have been adopted in other jurisdictions and have proven suc-
cessful; others appear to be reasonably calculated to aid the courts by
eliciting the maximum benefit to be derived from psychiatric testi-
mony. It is suggested that the courts and legislature of Iowa adopt
those measures that have proven their worth elsewhere and give seri-
ous consideration to other possible reforms.
A. Hearsay, Opinion, and Hypothetical Questions
As previously mentioned, one remedy for the restrictions imposed
by the rules against hearsay and opinion is already employed to some
extent by the courts: they simply ignore the rules. A practice such
as this, however, is certainly undesirable from the standpoint of the
person who wants to be sure that his testimony will be admitted. There
is no security for admissibility when the court has such discretion.
A more concrete reform was embodied in the American Law Insti-
00
tute's Model Code of Evidence.2 Rule 409 of the Model Code would
allow an expert to state the basis for his opinion without employing
the hypothetical question, or if he wished, he could give his opinion
without disclosing any basis. The cross-examiner would then be per-
mitted to discover the basis for the opinion by use of the hypothetical
question. A very similar proposal was embodied in the Uniform Ex-
pert Testimony Act. '
99
See Diamond 1353.
100 Rule 409 of the ALI MoDEL CODE OF EvmmEcE:
An expert witness may state his relevant inferences from matters per-
ceived by him or from evidence introduced at the trial and seen or heard
by him or from his special knowledge, skill, experience or training,
whether or not any such inference embraces an ultimate issue to be
decided by the trier of fact, and he may state his reasons for such in-
ferences and need not, unless the judge so orders, first specify, as an
hypothesis or otherwise, the data from which he draws them; but he may
thereafter during his examination or cross-examination be required to
specify those data.
101 Section 9 of the UNMros EXPERT TESTmONy AcT:
(1) An expert witness may be asked to state his inferences, whether these
inferences are based on the witness' personal observation, or on evidence
introduced at the trial and seen or heard by the witness, or on his technical
knowledge of the subject, without first specifying hypothetically in the
question the data on which these inferences are based.
1302 IOWA LAW REVIEW ['Vol 53

While these proposals do much toward alleviating the burdensome

characteristics of the hypothetical question during direct examination,
they retain them during cross-examination, and they have been criti-
cized for doing so. By retaining the hypothetical question, what im-
provements are made are vitiated by perpetuating the partisanship of
the present procedure. 0 2 It has been suggested, therefore, that the
hypothetical question should also be disallowed on cross-examina-
tion. 0 3 However, its use has been defended on the ground that it is
a practical necessity that serves to ensure that all facts are considered
by the expert. 0 4
The best and most effective reform in regard to hearsay and opinion
would be to carve out an exception to the rules for psychiatric tes-
timony. It is such a complex area of study that the average layman has
little understanding of its concepts and principles. The psychiatrist is
trained in matters of relevancy of information, and his superior judg-
ment should be recognized. Because he deals with this type of in-
formation more than other expert witnesses, he should be allowed to
make a full disclosure of his information. Indeed, in the interests of
giving the jury the broader view, avoiding confusion, and achieving
substantial justice, the psychiatrist should be required to make a full
disclosure.0 5 The trial judge could compel full disclosure, and as a
safeguard, the hypothetical question could be used by opposing coun-
sel to compel the psychiatrist to consider all relevant information intro-
duced into evidence. As a tool to elicit full disclosure, the hypothetical
question can be justified to some extent, but it should probably be used
only in cross-examination to compel full disclosure. To this end, the
trial judge can play an important role in disallowing the device to be
used for partisanship. 08

B. Remedies in Criminal Law

A more far-reaching solution to the problems of inadmissibility of
psychiatric testimony in criminal trials is the court-appointed psychia-
trist. Courts have the inherent power to appoint psychiatrists to give
testimony at trial.07 This would do much toward eliminating the
"battle of experts" because the jury is sure to give more weight to the
opinion of an impartial witness than one called forth by either the de-
fense or the prosecution.0 s In addition, some states require that a

(2) An expert witness may be required, on direct or cross-examination,

to specify the data on which his inferences are based.
10 2 See Recent Statutes, The Uniform Expert Testimony Act, 38 CoL.L L. REV.
369, 374-75 (1938).
103 Id.
204 See Dieden 557.
105 Id. at 559.
106 Id.
07
For a good discussion of the courts' power to appoint psychiatrists see
Magnus, supra note 2, at 19-23.
203 See Overholser, The Place of Psychiatry in the Criminal Law, 16 BosT U. L.
REv. 322-33 (1936). However, the jury would certainly be aware that the court-
appointed psychiatrist is working at the expense of the state and for that reason
may be somewhat partial toward his employer.
19681 NOTES 1303
party indicted for certain serious offenses be given a psychiatric exam-
ination prior to trial.1' 9 Since it is relatively free from the taint of
partisanship, testimony by the impartial psychiatrists who make that
examination would appear to be quite valuable and helpful to the jury.
The "battle of experts" is not a substantial detriment in cases in which
an impartial third party also gives testimony, because the jury could
consider the impartial testimony and would not have to rely solely on
what may be heavily partisaned views. Although problems may ob-
viously arise concerning public funds available for such activities,1 0
it is suggested that this is one remedy Iowa should consider.

C. Testamentary Capacity
The best reform concerning admissibility of psychiatric testimony
in cases involving testamentary capacity is preventive in nature rather
than corrective. It has often been suggested that the problems in pro-
bate proceedings could largely be avoided by the use of antemortem
psychiatric examination of the testator."' The examining psychiatrist
could then testify as to his personal examination without any substan-
tial admissibility problems involved. If the examining psychiatrist
were to die before the trial,
1 2
his notes could then be used as the basis
of hypothetical questions.
Even if preventive measures such as these are not taken, another
remedy is at hand. As in the criminal trial, the court could still ap-
point a psychiatrist to provide impartial testimony at trial. Here again,
the "battle of experts" is neutralized and more objective testimony is
available. In addition, the relaxed rules put forth in the Model Code
of Evidence and the Uniform Act on Expert Testimony would be
helpful even if the courts could not see fit to carve out exceptions for
psychiatric testimony as suggested.

VIII. CONCLUSION
The psychiatrist plays a vital role in those cases concerning a per-
son's mental condition. His contributions that derive from his com-
petence in this difficult field of study are valuable aids to the trier of
fact. His best efforts, however, are thwarted, and he finds himself
hamstrung by the rules of evidence. Balancing the need to exclude
fraudulent or erroneous information against the psychiatrist's need

1o Iowa has no such law. See, e.g., N.Y. CoDE OF CRmI. PROC. § 658 (McKinney
1958).
110 Judges may restrain from appointing psychiatrists due to a lack of funds.
For a discussion of this problem, see Magnus, supra note 2, at 37.
11 See Note, Testamentary Capacity in a Nutshell: A Psychiatric Reevaluation,
18 STAw. L. Rsv. 1119, 1143 n.185 (1966).
112 Id. at 1144. See IowA CODE § 622.27 (1966). The notes and records of a
deceased psychiatrist are admissible into evidence and are considered to be
presumptive evidence of such facts if made in a professional capacity or in the
ordinary course of professional conduct. In Poweshiek County Natl Bank v.
Nationwide Mut. Ins. Co. (fied Feb. 6, 1968, Iowa Sup. Ct.), the court discusses
the rule that only facts found on such reports may form a basis for an opinion.
1304 IOWA LAW REVIEW [Vol. 53

for freedom in the use of information he deems relevant, it seems ob-

vious that the rules of evidence should bend to the needs of the psy-
chiatrist. Otherwise, his professional opinion may well be perverted
and made inaccurate and misleading. The psychiatrist seems to be a
better judge of what information is relevant to a psychiatric opinion
than is a court of law. Censure from his colleagues and the need to
protect his professional reputation both provide added incentive for
the psychiatrist to use only that information normally acceptable
among reputable psychiatrists. There is really no reason to expect
anything but a conscientious effort by the psychiatrist in arriving at a
correct opinion. The partisanship that occurs during a "battle of ex-
perts" is possibly the product of the evils of the hypothetical question.
Relaxing the rules of evidence for psychiatrists would not benefit the
unscrupulous psychiatrist because he would arrive at the answer he
wanted in any situation. What is needed is to allow a conscientious
psychiatrist to use all information he deems relevant in order to ar-
rive at a valid psychiatric opinion.
Cases such as State v. Gramenz indicate that the relevancy of psy-
chiatric testimony is gaining the confidence of the judiciary. Courts
have also recognized a need for more complete disclosure by psy-
chiatrists by being willing at times to ignore traditional rules of evi-
dence in favor of allowing a psychiatrist to base his opinion on hearsay
and opinions of others and to give his opinion on the ultimate issue.
What remains is for the courts to give full recognition to the difficulties
faced by the psychiatrist as an expert witness, to acknowledge his
superiority to judge what information is relevant to his opinion, and
not only to allow but to require him to disclose all information upon
which he based his testimony. This disclosure will, in turn, promote
goodwill between psychiatry and the law, better inform the jury, avoid
confusion, and work toward more just results.