FRANK A. KAUFMAN, District Judge.

Donna B. Brown (Brown) was found guilty by a jury on April 16, 1979 following a trial which began on April 4, 1979 on charges of giving false testimony before a federal grand jury in violation of 18 U.S.C. § 1623. Brown moved for a new trial on the following grounds:

1. The trial court erroneously prevented the defendant from examining a hospital record pertaining to the hospitalization of the government's chief witness. The record had been subpoenaed by the defendant, and may have contained material and relevant evidence relating to the credibility and reliability of the witness or other areas of aid in cross-examination. Even though unprivileged, the court denied defendant access to the hospital record.

2. The court thus not only erred in depriving the defendant of unprivileged evidentiary matter but the denial of the access to duly subpoenaed material amounted to a denial of due process and a fair trial under the Fifth Amendment.

That motion has been denied. Herein, this Court reviews and amplifies its reasons for that denial.

During 1975, a special grand jury of this Court investigated the activities of Maryland's Governor, Marvin Mandel, and others. Diane E. Lawrence (Lawrence), a close personal friend of Brown, was a member of that grand jury.

During September 1978, another special grand jury investigated allegations of possible jury tampering and obstruction of justice in connection with the Mandel case. In late October 1978 Brown appeared before that latter grand jury and denied any involvement in or knowledge of any attempt by her in October 1975 to buy or otherwise procure information from any member of the special grand jury which had been investigating the Governor and others in October 1975. Brown's said October 1978 testimony formed the basis for the perjury charges for which she was convicted on April 16, 1979 and as to which her motion for new trial was filed.

Brown was indicted on February 6, 1979. Prior to trial, during a motion hearing, counsel for Brown indicated that the defense theory of the case would be that everything that Brown did or said in her discussions with Lawrence during October 1975 was a "hoax" perpetrated by Brown. Trial evidence, i. e., recorded conversations, subsequently revealed that Brown discussed with Lawrence on a number of occasions, both in person and by telephone, a plan for obtaining a sizable monetary payment from one or more of the persons who, the newspapers were suggesting in October 1975, were targets of the grand jury on which Lawrence was serving. During the pre-trial period, the government proffered that its evidence against Brown would include the testimony of Lawrence, and also tape recordings of pertinent conversations between Brown and Lawrence during which Brown discussed with Lawrence the possibility that Lawrence might reveal, for money, details of matters, which according to newspaper reports, were under consideration by the grand jury on which Lawrence was serving. The tapes were obtained after Lawrence forthwith reported Brown's initial approach to her to a judge of this Court, and agreed to cooperate, at the request of the FBI, in the government's investigation of Brown's approach to Lawrence. Trial was scheduled to commence in this case on April 4, 1979. On March 30, 1979 in a chambers conference with counsel for both sides and counsel for the hospital, this Court learned that counsel for Brown had issued a subpoena duces tecum to the custodian of records of a hospital located in the City of Baltimore, for the production of certain of its records relating to a period when Lawrence had been a voluntary psychiatric in-patient at that hospital. Brown's counsel stated that Brown desired those records for the purposes stated in the instant motion for a new trial. The government opposed such production. Counsel for the hospital stated that the hospital would produce those records only under the compulsion of an Order by this Court.

Subsequently, at the request of this Court, an experienced trial attorney, a former United States Attorney for this District, agreed to act as counsel to Lawrence in the matter of the subpoena issued to the hospital. On April 2, 1979, counsel for the government, Brown, the hospital, and Lawrence, conferred in chambers with this Court, on the record, in an attempt to resolve the dispute relating to the subpoenaed records. All parties agreed that the transcript of proceedings during that in camera hearing should be sealed. Also by agreement, the hospital records were produced by counsel for the hospital and were reviewed by this Court and by Lawrence and her counsel. Thereafter, this Court and counsel for Lawrence stated to all counsel and to Brown that the psychiatric records related to a period of time during November, 1976, and contained nothing concerning Lawrence's service on the grand jury, nothing relating to Brown or the relationship between Lawrence and Brown, and nothing concerning the charges against Brown or the government's prosecution of Brown. Thereafter, Lawrence restated her desire to maintain the confidentiality of the records and asserted her state law privilege with respect thereto. Counsel for Brown pressed his demand for production of the records under protective order for review by Brown and himself, stressing the possible usefulness of the information in the records during cross-examination and impeachment of Lawrence. The government maintained that the records were not sufficiently relevant or material to any issues, including those of credibility and reliability. Thereafter, this Court briefly examined Lawrence on the record, with her counsel present but out of the presence of counsel for the government, Brown, and the hospital. Defense counsel did not object to this Court's in camera examination of the records and of Lawrence, but objected at all times to any procedure or ruling which denied to Brown and himself the opportunity to review the records. Thereafter, in a Memorandum dated April 3, 1979, this Court set forth in part its reasons for denying defense counsel's request to examine the psychiatric records and its determination of Lawrence's competency to testify.

The trial commenced on April 4, 1979. On April 16, 1979 Brown was found guilty. The instant motion for a new trial was timely filed on April 23, 1979.

Brown's pre-trial and post-trial objections to the non-production of the records were and are framed in a due process/Fifth Amendment context. However, the Sixth Amendment right to effective cross-examination of adverse witnesses also underlies Brown's contention of unfairness and prejudice. The fundamental principles that give meaning and shape to that Sixth Amendment right were set forth by Judge Carter in Skinner v. Cardwell, 564 F.2d 1381, 1388-89 (9th Cir. 1977) cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978):

The Sixth Amendment right to confrontation is embodied largely by the right to cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940); United States v. Harris, 501 F.2d 1 (9 Cir. 1974). If the right to effective cross-examination is denied, constitutional error exists without the need to show actual prejudice. Davis v. Alaska, supra; Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); United States v. Harris, supra at 9.

However, the defendant does not have the unrestricted right to cross-examine adverse witnesses on any matter desired. Initially the cross-examination must be shown to be relevant. The determination of relevancy is within the discretion of the trial court. United States v. Trejo, 501 F.2d 138 (9 Cir. 1974); Enciso v. United States, 370 F.2d 749, 751 (9 Cir. 1967).

Next, topics of inquiry which pass the relevancy hurdle are subject to the trial court's further discretion as to the proper extent of cross-examination. In Alford, supra, 282 U.S. at 694, 51 S.Ct. at 220 the Supreme Court ruled:

"The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. Storm v. United States, 94 U.S. 76, 85, 24 L.Ed. 42; Rea v. Missouri, 17 Wall. 582, 542-43, 21 L.Ed. 707; Blitz v. United States, 153 U.S. 308, 312, 14 S.Ct. 924, 38 L.Ed. 725." [Citations omitted.]

Relevancy and the proper extent of cross-examination are closely interrelated. For example, a topic which is highly material deserves extensive cross-examination. But some topics may be of such minimal relevance that the trial court would be justified either in totally prohibiting cross-examination about them or in allowing only limited questioning. [Citations omitted.]

* * * * * *

The test for whether cross-examination about a relevant topic was effective, i. e., whether the trial court has abused its discretion, is whether the jury is otherwise in possession of sufficient information upon which to make a discriminating appraisal of the subject matter at issue. When the refused cross-examination relates to impeachment evidence, we look to see whether the jury had sufficient information to appraise the bias and motives of the witness. [Citations omitted.]

No general psychiatrist-patient or hospital-patient privilege is available as a bar to the production of documents under Maryland law or under the Federal Rules of Evidence ( see Rule 501). However, in a federal criminal trial, there was and is a need to balance, on the one hand, Brown's interest in receiving a fair trial — including the opportunity to conduct a full cross-examination and to impeach Lawrence — and, on the other hand, the need to spare Lawrence any unnecessary invasion of privacy, see United States v. Jackson, 576 F.2d 46, 49 (5th Cir. 1978), as well as to spare her from harassment, annoyance or humiliation, see Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931).

In United States v. Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950), Judge Goddard admitted expert psychiatric testimony offered to impeach the credibility of the chief government witness, Whittaker Chambers, during the second trial of Alger Hiss. Other federal and state courts have accorded broad latitude to counsel in the area of psychiatric cross-examination when circumstances have justified the same. In United States v. Partin, 493 F.2d 750 (5th Cir. 1974), appeal after remand, 552 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), Judge Coleman, for Judges Ainsworth, Gee and himself, wrote (at 762-64):

The basic precepts of the Hiss ruling have been followed in at least three Circuits: Sinclair v. Turner, 10 Cir., 1971, 447 F.2d 1158, cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); Ramseyer v. General Motors Corporation, 8 Cir., 1969, 417 F.2d 859; United States v. Allegretti, 7 Cir., 1964, 340 F.2d 254, cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965). Interestingly enough, except for Florida and Louisiana, all of the states comprising the Fifth Circuit have confronted this issue. Of the four, three follow Hiss, with Texas comprising a distinct minority of one, Bonner v. State, 59 Ga. App. 737, 1 S.E.2d 768 (1939); Walley v. State, 240 Miss. 136, 126 So.2d 534 (1961); Brown v. State, 45 Ala. App. 391, 231 So.2d 167 (1970); Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App., 1972).

The readily apparent principle is that the jury should, within reason, be informed of all matters affecting a witness's credibility to aid in their determination of the truth, Walley v. State, supra. It is just as reasonable that a jury be informed of a witness's mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know, and correctly relate the truth.

* * * * * *

Partin had the right to attempt to challenge Rogers' credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he was attempting to testify.

* * * * * *

* * * the jury was entitled to know and consider that a few months before the alleged occurrence of the crime charged in the indictment, Rogers voluntarily committed himself to a hospital, reporting auditory hallucinations [hearing things that were not there] and also complaining that at times he thought he was some other person. Moreover, this was a direct refutation of Rogers' prior denial that he entered the hospital for mental treatment. [Emphasis Added.]

The stress in Partin upon the temporal nexus between the alleged incapacity of the witness and the subject matter of the witness' testimony reflects the view that relevancy, materiality and the proper scope of cross-examination are "closely interrelated," see Skinner v. Cardwell, supra at 1889.

The discretionary power of the trial court to permit or not to permit a particular inquiry in a criminal trial has oft been emphasized.

In United States v. Barnard, 490 F.2d 907 (9th Cir. 1973), cert. denied 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974), Judge Duniway commented that the procedures employed in the Hiss case are the exception rather than the rule and that the exercise of a trial judge's discretion "`is to be sustained unless manifestly erroneous.' [Citation omitted]."

This case does not involve any allegation that Lawrence was under the influence of drugs or alcohol at any time and certainly not at or close to the time of trial or any date relevant to any issue, including the issue of Lawrence's credibility posed by the charges against Brown. If such were not so, this Court's discretionary authority to limit cross-examination would have been considerably more circumscribed. Thus, Judge Choy wrote, in an appeal from a bank robbery conviction in United States v. Kizer, 569 F.2d 504, 505-06 (9th Cir.), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978):

Before government witness Katie Nelson testified, the trial court granted the prosecutor's motion to prevent defense counsel from inquiring into Nelson's past drug use and hospitalization for drug addiction. Kizer argues that the court's ruling deprived her of the broad scope of cross-examination guaranteed by the sixth amendment. See, e. g., Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1975). It is established, however, that cross-examination may be limited where the sixth amendment interest is outweighed by the danger of harassing witnesses or unduly prejudicing the jury. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The proper extent of cross-examination lies within the sound discretion of the trial court. Fed.R.Evid. 403, 608(b), 611(a); Skinner v. Cardwell, 564 F.2d 1381, 1388-89 (9th Cir. 1977). The trial court may limit or even prohibit a proffered line of inquiry that is minimally relevant. Id. at 1389.

Defense counsel sought to cross-examine Katie Nelson about her past drug addiction to show her motive, bias, and interest in testifying on the theory that Nelson, as a drug addict, had an inordinate interest in receiving funds from law enforcement agencies in exchange for incriminating testimony. The trial court allowed inquiry into any payments Nelson might have received in exchange for testifying. The court refused, however, to allow inquiry into her hospitalization for drug treatment and ruled that such hospitalization was not logically relevant to Nelson's motivation, bias, or interest in testifying. We find nothing in the record to suggest that the trial court abused its discretion in so ruling.

The cases that allow broad cross-examination on the issue of drug addiction to impeach witnesses are readily distinguishable. Such cross-examination may be necessary where defense counsel seeks to impeach narcotics addicts who are paid government informers with criminal charges pending against them, United States v. Kinnard, 150 U.S.App.D.C. 386, 392-95, 465 F.2d 566, 572-75 (1972), or who had criminal charges against them dropped prior to trial, United States v. Masino, 275 F.2d 129, 132 (2d Cir. 1960), or where the fact of addiction is probative of other motivation for testifying, United States v. Fowler, 151 U.S.App. D.C. 79, 88, 465 F.2d 664, 668 (1972) (cross-examination as to drug addiction allowed where such addiction may have led to dismissal of witness from police force), or where the witness is intoxicated while testifying, Wilson v. United States, 282 U.S. 568, 84 S.Ct. 347, 58 L.Ed. 728 (1914). The record here reveals no such bases for allowing cross-examination on drug addiction. Moreover, there is widespread recognition that drug addition is an issue fraught with potential prejudice:

The issue of narcotics use is one that may properly be handled with some sensitivity lest it result in undue and unnecessary prejudice. There is an interest in avoiding undue evidentiary assault on prosecution witnesses. Prejudice may result if questions asked for the limited purpose of testing, say, opportunity to observe, are permitted to generate a hostility based on the general odium of narcotics use.

United States v. Kearney, 136 U.S.App. D.C. 328, 420 F.2d 170, 174 (1969) [citation omitted].

Our review of the trial transcript assures us that Nelson was a reasonably lucid witness. The trial court's exercise of discretion in foreclosing impeachment on the drug addition issue was not improper. United States v. Cole, 457 F.2d 1141, 1143 (9th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 166, 34 L.Ed.2d 117 (1972).

We also note in passing that defense counsel did not offer to prove that Nelson used drugs either during the period covered in her testimony or during the trial itself. The failure to lay a proper foundation to impeach a witness may preclude appellate relief. [Citations omitted.]

Nor is this a case in which Lawrence's credibility as to the contents of her conversations with Brown is in issue in view of the fact that the tape recordings and verbatim transcripts of the conversations relating to which the alleged perjurious testimony was given constituted the principal evidence produced by the Government. Defense counsel contends that Lawrence's belief or understanding as to whether Brown's actions were nothing more than a ruse or a hoax was so material and relevant in this case that Lawrence's testimony in that regard needed to be elicited by the defendant and then impeached for its lack of credibility and reliability by use of the psychiatric records. However, in this case, the jury heard for itself the lengthy taped conversations in which Brown and Lawrence took part. The jury heard the words and the tones of voice. The jury also heard testimony of Brown's husband and of a witness with whom Brown discussed the information — pay off proposal.

During trial, defense counsel questioned Lawrence generally concerning the latter's mental and emotional state. In addition, Brown testified in detail concerning her close personal relationship with Lawrence and in so doing alluded to the fact that Lawrence had mental and emotional problems during the course of that relationship. Thus, in balancing the factors to be weighed in the course of its exercise of its discretionary authority, this Court was not faced with a situation in which Brown's counsel was totally unable to utilize Lawrence's alleged emotional instability to further Brown's, as opposed to Lawrence's, interpretation of the entire affair as a "hoax" and Brown's theory that she testified as she did before the grand jury because she had considered the matter a "hoax" and had forgotten entirely about her very lengthy conversations with Lawrence. Additionally, in the absence of any allegation that Lawrence withheld any information or failed to tell the truth, except as to her perception of the matter as a non-hoax, Lawrence, as a person who seemingly did her duty as a grand juror in promptly reporting to a judge of this Court Brown's initial approach to Lawrence and thereafter in fully cooperating with the FBI in the government's investigation of a very serious grand jury tampering charge, is a citizen entitled to some protection of her personal records and of her privacy and to protection against undue harassment and humiliation.

Accordingly, this Court hereby reaffirms its denial of defendant's motion for a new trial.

DONNA B. BROWN

Q. [By Mr. Skolnik] The subject matter here is the effort in the fall of 1975 to have a Grand Juror, a woman named Diane Lawrence, then a member of the Grand Jury investigating Governor Mandel and some others, approached and offered money for her willingness to give in exchange for that money information with respect to what was going on before the Grand Jury on which she was sitting.

As I have told you earlier today, the evidence already in hand indicates that there were several people involved in the effort to do that with Mrs. Lawrence, and that among those several people was yourself.

What I would like you to do, Mrs. Brown, first, is to simply tell the Grand Jury in your own words, taking as much time as you like. . . .

Q. What I would like for you to do, Mrs. Brown, is just in your own words, taking as much time as you like, tell the Grand Jury the complete story of what occurred in the fall of 1975 as far as you are aware of regarding this subject matter that I just outlined to you and I will ask specific questions.

Q. Please tell the Grand Jury everything that you know about the effort that was made to have Mrs. Lawrence approached and —

Q. All right, Mrs. Brown, then I will ask you one more time to please tell the Grand Jury what you know about the approach that was made to Mrs. Lawrence in or around October, 1975, asking her if she would be interested in selling, in exchange for money, information that she had about what was going on before the Grand Jury that she was a member of.

Q. [By Mr. Skolnik] Did Mrs. Lawrence ever inform you, Mrs. Brown, that she, Mrs. Lawrence, wanted to find out whether or not the people interested in paying her money were for real or were serious about it? She wanted to find out about that by asking them for some money up front. That is, for some money to be paid to her in advance of her giving any information?

A. [By Mrs. Brown] She never asked me anything about any of it.

Q. So the subject matter that I just asked about — the answer is no, nothing like that ever happened?

Q. [By Mr. Skolnik] Did Mrs. Lawrence ever indicate to you or state to you that she would like to know what it is that the people who are interested in having information from her about the proceedings before the Grand Jury — exactly what it is that they want to know?