dissenting.
I.
The majority correctly outlines the inquiry regarding defendant’s request for additional psychiatric evaluation as a determination of whether or not the evaluation was necessary in the interest of justice. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). However, the conclusion that the psychiatric examinations previously conducted on the defendant, I.C. § 18-211, were sufficient to enable defense counsel to evaluate the propriety of an insanity defense is wholly untenable. Equally so is the conclusion that further professional evaluation was unnecessary.
Pursuant to defendant’s Notice of Intent to Rely on the Defense of Mental Disease or Defect he was transported to the Idaho Security Medical Facility (ISMF), remain*401ing there for fifty-one days while undergoing psychiatric evaluation. The eventual Psychiatrist and Administrator’s Report, however, failed to include a determination of defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law at the time of the crime — the primary purpose of the examination. A hearing was subsequently conducted in response to defense counsel’s challenge to the findings of the psychological evaluation report. Dr. Azar, a part-time consulting psychiatrist at the ISMF, testified in regard to defendant’s mental capacity at the time of the offense. Although Judge Maynard concluded that Dr. Azar’s testimony adequately rehabilitated the gross shortcomings of the original report, the judge nonetheless felt compelled to administer a stern rebuke wherein his retrospective observations well illustrate the ISMF’s inadequate evaluation:
“We have a serious situation here. The Defendant is charged with the crime of murder in the first degree. Now the Defendant is entitled to all the defenses that are possible under the law. The Defendant sits in this court today presumed to be innocent of this charge until proven guilty. The State of Idaho has an interest in this case. It has the duty to produce evidence before 12 jurors for them to determine whether or not the Defendant is guilty. The State can’t perform the duty because a bunch of bureaucrats have stuck their nose in and totally disregarded the statutes, haven’t paid any attention to the orders of the Court, sent a report up here not authorized by the psychiatrist who is the only one empowered under the law to do it, ordered — examined by two psychiatrists. No mention was made in any report of the second psychiatrist, no report came back. This matter was set down — the Defendant was ordered upon his notice to be examined on the 21st day of December, 1977, and shortly thereafter was transported to the Security Unit at the Idaho State Penitentiary. On the 2nd day of — or the 25th day of February, Doctor — or Mr. Clump [staff psychologist at ISMF] made a report, not to this Court but to the administrator of the hospital. Now that was some 66 days after the date of the filing of this notice. Nine days thereafter, on the 6th of March, a report was prepared by Dr. Sanford, [administrator of the ISMF] not the psychiatrist, in response to the order. That was 75 days after the order was made. This letter was not mailed — this report was not mailed, the postmark shows, until the 13th day of March, 82 days later.
“Now I don’t know what you people are running down there — totally disregardpng] the law. Dr. Sanford, you know what the requirements of the law are. You know you are not empowered to make these reports, only a psychiatrist is. You are taking too much upon yourself and it is going to stop. Now Dr. Azar’s testimony here clears up the matter of the report and makes an adequate report. We still do not have the report of Dr. Estes [consulting psychiatrist to the ISMF]. If that is not in my hands by the end of this week, there is going to be another hearing and Dr. Estes is going to be here. Now I am not going to subject the taxpayers of this county to the payments of any costs for you people. That is a matter for the Board of Corrections. You made this mistake by totally ignoring the statutes and the order of this Court. I wish you were in a position where I could find you in contempt because I would. Now you are going to straighten out and mend your ways or I am going to go to the Governor and have a good hard look at how you run that institution.”
Being in complete agreement with Judge Maynard’s pungent comments, nevertheless, I regret my inability to fathom his reasons for denying defendant further psychiatric examination as requested. If, as the majority states, the “needs of the defendant and the circumstances of the case” (whatever that may mean in the eyes of the majority) control the question of “whether an adequate defense would be available to the defendant without the requested expert or *402investigative aid,” then certainly an additional mental evaluation of the defendant, presumably characterized by more professional conduct, was in order. Indeed, having observed the slipshod manner in which his client was examined, defense counsel had no alternative but to request an additional evaluation. An additional examination was not only necessary, but mandated. While I understand the influencing factor of economics to which district judges are no doubt susceptible, I am appalled that this Court on leisurely reflection affirms the district court order denying funds to obtain further psychiatric evaluation, and declares that the requirements of “due process of the law” have been fulfilled.
II.
Following defense counsel’s first setback, a motion was made by him for funds to obtain a transcript of the mental evaluation hearing. That motion was likewise denied.1 On appeal this Court, relying on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), rather summarily affirms that denial. It is not clear that the holding in Britt is understood by the Court.
The Britt opinion recognized two factors relevant to the determination of an indigent defendant’s need for transcript: “(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” Id. at 228, 92 S.Ct. at 434. The majority opinion narrowly analyzes the first element to the limited extent necessary for support of its position, and conveniently by-passes discussion of the second element.
In Britt, the United States Supreme Court noted that which appears as the obvious even to attorneys of limited criminal practice experience:
“[Ejven in the absence of specific allegations it can ordinarily be assumed that a transcript of the prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.” Id. at 229, 92 S.Ct. at 434.
Concluding that “[t]he testimony adduced at the hearing would have no relevance at trial” and that “[ajppellant’s brief on appeal does not point out how the transcript of the testimony taken at the competency hearing would have been of any use or value in presenting his defense,” the majority today overlooks Britt’s clear holding that no showing of the transcript’s value to the defendant is necessary:
“We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case.” 404 U.S. at 229, 92 S.Ct. at 434.
Further, the majority completely ignores the second element for determining need outlined in the Britt decision, i.e., the availability of alternative devices that would provide an adequate substitute for the transcript. In his Affidavit in Support of Motion for Reporter’s Transcript, defense counsel requested the transcript because the testimony at the mental evaluation hearing “forms the very root and essence of the foundation for the psychiatric and psychological opinions which defendant must utilize at trial.” The only feasible “alternative device” to the testimony, therefore, would be another expert opinion regarding the defendant’s mental condition. That particular relief, however, was effectively foreclosed by the district court’s earlier denial *403of public funds for hiring another psychiatrist in order to examine the defendant. As noted in dissent by Justice McFadden, this Catch-22 situation forces defense counsel to predetermine for himself the effectiveness or futility of his client’s insanity defense without the requisite tools — his own expert, and a transcript. If he proceeds without either or both, and fails, he faces a not unlikely later appellate ruling that he has not demonstrated that his defense, though prosecuted with commendable zeal, was not hampered, and simply did not gain the nod from the jury. Surely this is a Catch-22 situation, and one from which an attorney can only extricate himself in the first place by not getting caught in the Catch. Wiser trial counsel, given adverse decisions clearly in error, will make their objections and hope for relief at the hands of an enlightened appellate court.
Any suggestion that defense counsel’s presence at the hearing at which the testimony was given is a sufficient alternative to the transcript itself not only borders on the absurd, but has been precluded by the Britt decision. “We have repeatedly rejected the suggestion that . .. counsel must have a perfect memory or keep exhaustive notes of the testimony given at trial.” 404 U.S. at 230, 92 S.Ct. at 435. Indeed, as a footnote to that finding the Court noted that “[wjhile trial notes might well provide an adequate substitute for a transcript, the failure to make such notes does not bar an indigent prisoner from claiming the right to a free transcript.” Id. fn. 4, 92 S.Ct. at fn. 4.
In State v. Coronado, 98 Idaho 421, 565 P.2d 1378 (1977), a unanimous Court summarily upheld an indigent defendant’s right to receive a transcript of his preliminary hearing based upon I.C. § 19-852 and I.C.R. 5.1.2 Since the Coronado case the Idaho Supreme Court has revised the applicable Idaho Criminal Rule several times. The current rule addressing transcripts reads in part:
“Rule 5.2 Transcript of hearings — Copies for parties. — (a) Transcript of proceedings. On timely motion to the district court by either the prosecuting attorney or the defendant or his attorney the court shall order a typewritten transcript and copies of exhibits or affidavits to be made for such party. The cost for the preparation of such a transcript on motion of the defendant shall be at the cost of the defendant, unless the court finds the defendant to be an indigent or needy person and orders the preparation of the transcript at county expense in the same manner as a transcript on appeal. Transcripts may be requested of any hearing or proceeding before the court including the following:
“(1) The record of any probable cause hearing for the issuance of a complaint, a warrant for arrest or a search warrant.
“(2) The record of any preliminary hearing.
“(3) The record of any hearing on a motion to suppress evidence.” (Emphasis added.)
The language of the rule does not specify or even intimate that transcripts of hearings other than those enumerated in (1), (2), and (3) are not going to be available on motion by the prosecutor or by defense counsel. Quite the contrary, it provides just the opposite — that transcripts may be requested of “any hearing or proceeding before the court including the following . ... ” The enumeration of three categories does not come close to closing the door on other hearings, and certainly not on a hearing as important as the one at which a defendant’s mental evaluation is discussed and his state *404of mind determined. It is for all intents and purposes as important as the preliminary hearing, and in fact its outcome may do away with any preliminary hearing. In that manner the hearing bears similarity to a suppression hearing in that if defendant is found of unsound mind within the requirements of the statute, all further evidence is suppressed.
It is difficult to see how the Court’s opinion today can be said to be in conformity with the provisions of I.C. § 19-852(a)(2) mandating that an indigent defendant is “to be provided with the necessary services and facilities of representation (including investigation and other preparation).” It was this statutory provision which required our holding in the Coronado case, of which case our Criminal Code’s annotator concisely and accurately commented as follows:
“While the parameters of the right of a criminal defendant under subdivision (2) to pretrial services and facilities is not particularly defined, a transcript of the preliminary hearing, when alleged to be necessary to the defense, must certainly be included among those services and facilities provided by the state under the statute.”
Equally as compelling in coming to a correct determination in this case are the requirements of effective assistance of counsel of the Idaho and United States Constitutions.
“It is our opinion that the best enunciation of defense counsel’s obligation is found in United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202 (1973) — ‘a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate’. We adopt this standard.” State v. Tucker, 97 Idaho 4, 8, 539 P.2d 556, 560 (1975).
It is to deal in pure sophistry to say that Olin’s defense counsel could be the effective advocate he was endeavoring to be when he was denied the right to have a psychiatrist at his elbow both in preparing for trial, and at trial. It would be a remarkably strange attorney who would endeavor to pierce the testimony of a psychiatrist without the aid of at least one of his own choosing — which would be equally true in attempting the analysis of those who testified at the mental evaluation hearing, especially absent a transcript. (Had the hearing been in magistrate court, at the least there would have been a tape available.)
In this case, I.C. § 19-852(a)(l) comes into play, and controls the issue of effective assistance of counsel. This section, with its requirement that an indigent defendant is entitled “to be represented by an attorney to the same extent as a person having his own counsel is so entitled,” clearly removes from the controversy the question of need for both a transcript and at least one psychiatrist. Without regard for the rule that the cumulative number of witnesses does not necessarily control the decision of a jury, without doubt most defense attorneys will want as many psychiatrists as the prosecutor has — and certainly would not go to trial when mental condition is an issue without at least one. The proposition is so apparent as to need no further discussion. One may well accept the legislature’s directive, and if it be that a non-indigent defendant would have a psychiatrist to aid his counsel, it is clear that an indigent defendant is entitled to no less — being the law of Idaho and the requirement of both constitutions — if this also be needed. Anything less is flagrant discrimination. The record which was made in this case adequately establishes the merit in defense counsel’s motions — both of which should have been granted.
It is also to be noted that an attorney’s ethical obligation to zealously represent his client, Idaho Code of Professional Responsibility, Disciplinary Regulation 7-101, necessitates a thorough investigation of every potential defense available to the client. In order to properly prepare the case for trial the attorney’s review of testimony given at a proceeding (preliminary hearing or men*405tal evaluation hearing) so materially related to the defendant’s posture at trial is essential to the fulfillment of that duty. That obligation should not be circumvented by a premature judicial determination regarding the relevance of the testimony at the subsequent trial. Relevance is a subjective determination, and what may be irrelevant to one attorney might appear particularly important to another. Courts have traditionally shied away from second-guessing an attorney’s trial tactics and this is certainly not the occasion on which to plough new ground. See State v. Larkin, 102 Idaho 231, 628 P.2d 1065 (1981).
The judgment should be reversed.
. It is a true anomaly of justice, perhaps the anomaly of all time, that the transcript of the mental evaluation hearing originally denied by the district court was subsequently made available for purposes of this appeal. Ironically, if the transcript had been provided to the defendant at the time it was initially requested, the financial burden of appeal upon the county and state might have been avoided altogether, or, at the least substantially reduced.
. I.C. § 19-852, ante p. 4. I.C.R. 5.1 in pertinent part read:
"Rule 5.1. Preliminary examination — . ..
“(d) Transcript of Proceedings. . . .
“(4) In the event that the defendant is indigent and cannot pay for the cost of such transcript or copy of record made by a recording device upon a proper showing the district court, an order shall be entered that the transcript shall be prepared at the cost of the county.”