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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=47101 Justice Leventhal CHARGED WITH his girlfriend’s homicide, defendant raised an “extreme emotional disturbance” (EED) defense. He argued that because his testimony would be the sole evidence in his EED defense, the prosecution was not entitled to his psychiatric examination. Ordering defendant’s examination by the prosecution’s psychiatric expert pursuant to Criminal Procedure Law �250.10, the court limited the prosecution’s use of defendant’s statements to the EED issue and put defendant on notice of the possibility that his statements to the expert may be used to impeach him. Discussing federal and extrajurisdictional case law, the court observed that courts in most jurisdictions will not permit a defendant to have his words heard by the jury through an expert absent waiver of Fifth Amendment rights. It also noted that in New York if a defendant testifies as to his mental state at the time of the crime, he waives his Fifth Amendment rights on the issue.

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