Concurring Opinion.
Pivarnik, J.— I concur with the majority opinion in all respects. I agree with the majority’s analysis that the present action does not involve a criminal proceeding, within the meaning of the Fifth Amendment privilege against self-incrimination.
However, I would add further reasons to find that the trial court was acting properly and that therefore this writ should be denied. That is, even if this proceeding can be characterized as “quasi-criminal” or within the scope of such United States Supreme Court decisions as Murphy v. Waterfront Commission, (1964) 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 698, and In re Gault, (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, I would find that relator Kiritsis has forfeited the Fifth Amendment privilege as to this commitment pro*556cedure and interview. I do not see this commitment procedure as something separate from the criminal proceedings designed for this type of case. Rather, they are provided for by law when a defendant is found not guilty by reason of insanity, as this relator here asked the jury to find.
This relator, Anthony G. Kiritsis, was tried by the Marion County Criminal Court on criminal charges and found by the jury to be not guilty by reason of insanity at the time of the commission of the acts alleged. This was cause number CR 77-44A, and styled State of Indiana v. Anthony G. Kiritsis. Ind. Code §35-5-3.2-1 (Burns 1975), directs a criminal court to hold a competency hearing after a return of a verdict of not guilty by reason of mental illness or defect. Under this statute, the trial court found that the relator was presently incompetent and dangerous to himself or others. Then,, pursuant to the above statute, the trial court directed the Department of Mental Health to initiate civil commitment proceedings within the ten days required by the statute. The Department of Mental Health assigned relator Kiritsis to the LaRue Carter Memorial Hospital and, again pursuant to statute, Dr. Moore, superintendent of that hospital, filed a verified petition in the Marion Probate Court for the involuntary commitment of relator, which was within the ten-day directive of the criminal court’s statutory order. Since Marion County is a populous county, it has many courts exercising jurisdiction in specific areas, unlike most counties in Indiana where criminal, civil and probate jurisdiction is vested in one court. Therefore, the cause was properly transferred to the court having probate jurisdiction in Marion County to proceed with the civil contempt proceedings provided for in Ind. Code § 16-14-9.1-5 (Burns Supp. 1978). At this point, relator Kiritsis refused to cooperate with examining psychiatrists, and asserted his privilege against self-incrimination under the Fifth Amendment of the United States Constitution.
*557In considering the relator’s constitutional rights at this juncture, we must keep his position and that of the state in perspective. When charged with criminal responsibility for his acts, the relator filed the affirmative defense of not guilty by reason of insanity. The relator urged this defense on the trier of facts and presented evidence in proof of same, including medical witnesses, some of whom are the same witnesses now involved in the hearing before the probate court. The judgment of the criminal court jury was to put the relator in the status he sought, that is, not criminally responsible for the acts he committed because of his mental illness. The law then provides, in the statutes above cited, for procedures to be taken when such a finding is made. The witnesses testified before the probate court that they were unable to determine the mental status of the relator without an interview of him. They informed the court that the interview is probably the most essential component of a psychiatric examination. Dr. Fitzgerald testified that the heart of the psychiatric evaluation is the interview, both in terms of the psychiatric case history as well as the mental status examination.
When certain constitutional rights are relinquished, the United States Supreme Court has required that the record demonstrate a knowing, voluntary, and intelligent “waiver” of such right. See, e.g., Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. “The Court has not, however, engaged in this exacting analysis with respect to strategic and tactical decisions, even those with constitutional implications, by a counseled accused.” Estelle v. Williams, (1976) 425 U.S. 501, 508 n. 3, 96 S.Ct. 1691, 1695, 48 L.Ed.2d 126, 133. When a defendant chooses to have a lawyer manage and present his case, the law allocates to the counsel the right to make binding decisions of trial strategy in many areas. Farettaw. California, (1975) 422 U.S. 806, 820, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562, 573. In such instances, defendants may be said to have “forfeited” constitutional rights or defenses by operation of law, as a result of the strategic or tactical *558decisions made at certain stages of the proceedings. See, e.g. Parker v. North Carolina, (1970) 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; McMann v. Richardson, (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Brady v. United States, (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. See generally Westen, Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich. L. Rev. 1214 (1977). The acceptance and presence of counsel ensures implementation of the defendant’s interest in conscious self-determination of his case, and minimizes the danger of inaccurate fact-finding. With these values satisfied, the presence of compelling interests of the state can justify foreclosing a defendant’s attempt to raise anew a constitutional defense or right that has once been forfeited.
I would find that relator Kiritsis’ filing of the affirmative defense of insanity forfeits any later attempt to assert the Fifth Amendment privilege against self-incrimination at commitment proceedings. The decision to file this defense was a counseled decision. It was also a strategic and tactical decision, insofar as such a defense is an alternative which a defendant is free to pursue or not as he wishes. As noted earlier, relator is now in the status which he sought. The interests of society must thus weigh more heavily in the balance to be struck in this case. It would put society in an untenable position to say, at this point, that relator could refuse to take part in any psychiatric interviews on the basis of the Fifth Amendment. The finding of the jury was that relator was not criminally responsible for his acts, but committed them because of a mental defect. The statute provides that in this case, a defendant should be held in custody and a determination made as to whether or not he continues to suffer from the mental illness, to the degree that he is dangerous to himself or others in society. Proceedings before the probate court at this time are designed to determine the present status of the condition that has already been found to exist in Kiritsis, as a result of the criminal trial. The relator con*559tends that this is a proceeding separate and apart from the criminal trial, so that his status cannot be determined or considered as a result of the findings and proceedings by the criminal court. It seems to me that this contention invites us to engage in legal and mental gymnastics not contemplated by the legislature, nor provided for in any of our laws. If adopted, it would provide a method for the relator to use these very sound and just laws to remove himself from criminal responsibility for his acts and then, in a second stage, to avoid the same legal vehicles which he invoked to put himself in this present position. Society would thus be prevented from keeping him in custody as a dangerous person because of his mental defect. For these reasons and those stated in the majority opinion, the writ should be denied.
Prentice, J., concurs.
Note. — Reported at 381 N.E.2d 1245.