(dissenting):
I cannot agree with the court’s description of the facts relating to the admission of the disputed evidence in this case, and I cannot concur in the conclusion that no reversible error occurred.
I
At issue are certain notes written down by the private psychiatrist who examined appellant upon request of defense counsel. The relevant portion of these notes is reproduced in the margin.1 The first question appellant raises is whether these notes are privileged. The court holds that the notes cannot be privileged under the statutory physician-patient privilege, because of the exceptions written into 14 D.C.Code § 307. The court then finds that no claim founded upon the attorney-client privilege — or upon an analogue thereof — can succeed because “it is in the interest of public justice for the trial court to permit both the Government and the defendant full access to the reports and conclusions of all psychiatric witnesses.” This latter subject, it seems to me, merits closer consideration than the court appears to give it.2- At the very least, when a psychiatrist has recommended that a certain test not be given and his reasons turn *665out to be strategic rather than medical, it is not clear that we are dealing with the kind of “reports and conclusions” that need to be disclosed to ensure “complete exploration” of the mental state of accused.
The court finally dismisses appellant’s argument from the attorney-client privilege on the grounds that the notes in question had in fact been communicated by the psychiatrist himself to a representative of the Government. As far as I can discover from the record, all that was reported to a representative of the Government was the psychiatrist’s opinion that narco-analysis (here, pentothal hypnosis) would not be useful. The main subject of the notes read at trial was the psychiatrist’s fear of the jury’s misunderstanding what would probably be said under narco-analysis, and there is no indication that this fear — much less the specific content of the notes— was communicated to anyone connected with the Government.
Although I disagree with the court’s reasoning on the issue of privilege, I cannot find in the record an objection by defense counsel to disclosure of the notes. Since, in addition, I find other grounds for reversal of this conviction, I do not think it is necessary to attempt to resolve, on this record, the difficult question of privilege that appellant raises.
II
Appellant urges that even if the notes were not privileged, they were improperly read to the jury and improperly referred to by the prosecutor in his closing argument as being in evidence. I agree that the circumstances surrounding the reading of the notes to the jury and the prosecutor’s closing argument require reversal.
While the court passes over the precise manner in which the psychiatrist’s notes were finally read to the jury, I find it very troubling. In lengthy discussions at the bench, the trial judge went to exemplary lengths in explaining to the prosecutor that he could proceed by way of refreshment or impeachment. If the first course was adopted, the proper procedure was to establish a failure of memory, offer the notes to the witness, and ask if they refreshed his memory. If the second was adopted, the prosecutor must lay a foundation — that is, elicit testimony from the witness which contradicted the written notes — and then he would be permitted to read the notes to the jury. But in that case, the judge said he would be required to give an immediate instruction that the notes went only to credibility and not to the truth of the matter asserted. I think that the trial judge correctly stated the law,3 and it is unfortunate that in the ensuing confusion, his rules were not followed. The prosecutor announced that he would proceed by way of refreshment and shortly thereafter read portions of the notes to the jury. No immediate instruction was given. We said in Jones v. United States4 that failure to give such an instruction is plain error. The damaging effect of the psychiatrist’s notes is clear on reading them, and the attention that prosecution and defense devoted to them in their closing arguments only emphasizes their importance.
The court states that in his closing argument the prosecutor referred to these notes only as going to the weight the jury should give to the psychiatrist’s testimony. I cannot agree. I feel it necessary to quote at some length from the prosecutor’s comments, if only to make perfectly clear that the dangers of admitting such notes for credibility alone is very great.
*666Now what else did [this psychiatrist] tell us? He told us that he had taken and made some notes of his interview. * * * And he says in the notes, ladies and gentlemen, this is in evidence, and I will quote it to you as it appeared in evidence:
“I would advise [defense counsel] that it would be inadvisable to subject this individual to pentothal hypnosis since it will give us no information we do not already have. It is very likely that what would come out would be that he had in fact gone to [deceased’s] sister’s house with the intention of forcing [deceased] to talk to him or else he would kill her.”
And then he goes [on] to say in a further sentence after that — these were his words, [this psychiatrist’s] own words, “I believe this is in fact what was probably going on in his mind.”
Now, think about this, ladies and gentlemen, for a moment, if you will. What does this tell us about ? * * * [This psychiatrist] is telling us here that if this man was subjected to this test he would * * * say under the influence of the sodium pentothal that he intended to go to that house and talk to [deceased] or else he would kill her. * * * So no matter how you look at it, ladies and gentlemen, you look at it from one side and you look at it from the other side. What is the significance? * * * It has great significance that [this psychiatrist] gave the interpretation of what he felt Jerry Carr’s intention was when he was going over to that house. [Emphasis added.]
I cannot see how anyone can read this argument and expect that a jury would understand from it that the notes should be considered only on credibility and not on the substance of a critical issue in the case — appellant’s premeditation and sanity.
The prosecutor’s remarks that the notes were in evidence is by itself a distressingly blatant error for a representative of the Government.5 The cumulative weight of the errors relating to the psychiatrist’s notes is great enough, I feel, that the trial judge’s inclusion of the standard instruction on impeachment at the end of trial was insufficient to protect against the misuse of the notes by the jury. I think we are bound to reverse and remand for a new trial.
. “I will advise [defense counsel] that it will he inadvisable to subject this individual to pentothal hypnosis since it will give us no information we don’t already have. It is also very likely that what would come out would be he had in fact gone to [deceased’s] sister’s house with the intention of forcing [deceased] to talk to him or else he would kill her. I believe this is in fact what was probably going on in his mind. To most of the laymen on a jury, this would be sufficient to clinch a conviction of first-degree murder. It would be most difficult to convey to them the truth of the matter in a way they could understand, namely, that an intention conceived purely under the pressure of an uncontrollable emotion is in fact no different from impulse which has not been subjected to any rational control. Even though the action is carried out over a relatively long period of time, i. e., it is not truly premeditated as the word is understood. Proper explanation would involve going into the nature of defensive operations of the ego-structural formulation and what is the nature of an effective control in general.”
. See my concurrence in Proctor v. Harris, 134 U.S.App.D.C. 109, 413 F.2d 383 (1969).
. For the inappropriateness of reading material to the jury when the purpose is refreshment, see Young v. United States, 94 U.S.App.D.C. 62, 214 F.2d 232 (1954), and Gaines v. United States, 121 U.S.App.D.C. 213, 349 F.2d 190 (1955). For the mandatory instruction when prior statements are brought to the jury’s attention to impeach a witness, see Jones v. United States, 128 U.S.App.D.C. 36, 385 F.2d 296 (1967).
. Id.
. Defense counsel made no objection to the prosecutor’s argument, and I find it unnecessary to decide whether the argument alone would constitute plain error meriting reversal.