I disagree with the majority’s conclusion that defendant was not deprived of effective assistance of counsel. Moreover, the trial court committed constitutional error by permitting the forensic examiner to testify for purposes of impeachment, in violation of MCL 768.20a(5); MSA 28.1043(1)(5). This error does not survive harmless error review. Therefore, I would affirm the Court of Appeals decision reversing the defendant’s convictions on both grounds.
i. ineffective assistance of trial counsel
The denial of effective assistance of counsel violates a defendant’s Sixth Amendment right to a fair trial.1 People v Lloyd, 459 Mich 433, 446; 590 NW2d 738 (1999). Appellate courts address constitutional issues under a de novo standard of review. McDougall v Schanz, 461 Mich 15, 24; 597 NW2d 148 (1999).
To establish ineffective assistance of counsel, a defendant must show that the attorney’s representation fell below an objective standard of reasonableness compared to professional norms. People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994). He must show that the ineffective assistance so prejudiced him that he was deprived of a fair trial. Id. To demonstrate the requisite prejudice, a defendant must prove that, but for errors of counsel, there *311was a reasonable probability of a different outcome.2 Id. at 314.
A. OBJECTIVE STANDARD OF REASONABLENESS
Adil Toma has poor command of the English language and an Arabic accent. He testified with the aid of an interpreter, and his testimony was often disjointed and confusing. Frequently, it was unclear who defendant was referring to in his recitation of events and whether they were the same as those the prosecution alleged were involved.
The defense attorney failed to clarify who defendant implicated in the shooting. He allowed defendant to identify people only by their first names. Defendant said that Steve Burge’s girlfriend was “Cherry,” and Margo DeVita’s boyfriend was “Jimmy.” None of the prosecution witnesses mentioned these names. They all stated that Margo’s boyfriend was Steven Burge. Defendant’s attorney never explained that the persons defendant referred to as “Rose” and “Don” were prosecution witnesses Russell and Danny Parenteau.
Defense counsel did not ask defendant or the interpreter to correct mispronunciation of the names. He failed to ask follow-up questions of defendant to clarify his testimony and to correct errors of translation, in the interest of making the testimony coherent.
Counsel’s failure to clarify his client’s testimony was not a matter of trial strategy. In Lloyd, supra, defense counsel was found not ineffective for choos*312ing one of two incompatible defenses, although both were weak, due to significant evidentiary problems. Id. at 448. Here, by contrast, there was only one viable defense theory. And, trial counsel failed adequately to aid defendant in its presentation.
The majority argues that the reason defense counsel did not clarify his client’s testimony is because he believed it was fabricated. The testimony, clarified, would have been even more damaging.
However, at the Ginther3 hearing, defense counsel did not testify that he thought defendant’s version of the events was a lie. The explanation he gave for failing to clarify the mispronunciations of names was that, having spoken with defendant at length, he may have become accustomed to his pronunciation and accent. Thus, it did not occur to him that clarification for the jury was needed.
At the Ginther hearing, the defense attorney stated that defendant’s version of the events made sense and rebutted the theory of the prosecution. He admitted having failed to prepare or review with defendant specific questions he would ask.
Defendant’s testimony, if clarified, could not have been more damaging than it was in its garbled and unintelligible state. I disagree that failing to clarify the testimony could have been a strategy to effectively preclude detailed cross-examination by the prosecution. Defense counsel’s presentation of incomprehensible testimony did not prevent the prosecution from asking questions on cross-examination to clarify defendant’s theory of the case. The prosecution was in no way deterred from exposing defendant’s posi*313tion as, in the words of the majority, “incredible” and “inconsistent with the physical evidence.”
Defense counsel’s shortcomings allowed the prosecution to argue effectively that defendant’s testimony was a figment of his imagination, undermining his credibility in the eyes of the jury. The presentation of his client’s testimony was indispensable to the creation of the defense’s theory of the case. Counsel's role in its presentation failed to meet the objective requirements for reasonable assistance of counsel when compared to professional norms. In fact, he was responsible in large part for the unintelligibility of defendant’s testimony.
B. REASONABLE PROBABILITY OF A DIFFERENT OUTCOME
Defendant’s description of the night’s events was coherent and internally consistent when it was clarified at the Ginther hearing. The people defendant listed as present are largely the same as the prosecution listed. Defendant’s version of the events names the four key prosecution witnesses and explains their motivation to lie and implicate him in the shooting.
The jury deliberated for approximately two and a half days, became deadlocked, and asked to hear defendant’s testimony again. Ultimately, it did not find defendant guilty of the two counts of assault with intent to commit murder, nor of the felony-firearm charges based on those assaults.4 These facts support *314a finding that the errors of counsel were outcome determinative.
At the Ginther hearing and on appeal, the prosecution argues that defense counsel’s errors did not affect the jury’s verdict, because the evidence against defendant was overwhelming. I disagree. This was no “open-and-shut” case. Not only did the errors of counsel prevent defendant from intelligibly presenting his theory of the case, they actually bolstered the prosecution’s case. They permitted the people to argue that defendant was imagining or fabricating his version of the events.
This is not a case where the evidence against the defendant was overwhelming. Instead, it is one in which there was a complete failure of the adversarial process, rendering it inevitable that the prosecutor’s proofs would seem overwhelmingly persuasive.
C. FUNDAMENTALLY PREJUDICIAL PROCEEDING
Federal law, explicitly, and Michigan law, by implication in reliance on federal law,5 allow for reversal *315without considering whether ineffective assistance of counsel amounted to outcome-determinative prejudice. This occurs when the errors of defense counsel render the proceeding fundamentally unfair.
In this case, the errors violated defendant’s Fifth Amendment right to testify6 and his Fourteenth Amendment right to due process,7 as well as his Sixth Amendment right to counsel.
[F]ailure to afford the petitioner a reasonable opportunity to defend himself against the charge . . . was a denial of due process of law. A person’s . . . opportunity to be heard ip his defense—a right to his day in court—are basic in our system of jurisprudence; and [this] . . . include [s], as a minimum, a right ... to offer testimony, and to be represented by counsel. [In re Oliver, 333 US 257, 273; 68 S Ct 499; 92 L Ed 682 (1948).]
*316Defense counsel’s failure to clarify defendant’s testimony so aided the prosecution that it would have been better had defendant not testified at all. Improper translation and clarification made the trial fundamentally unfair in that defendant was unable to put on an intelligible defense. “There are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v Cronic, 466 US 648, 658; 104 S Ct 2039; 80 L Ed 2d 657 (1984). “[I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee [to the effective assistance of counsel] is violated.” Id. at 656-657.
Reversible prejudice resulting from ineffective assistance of counsel rendered a criminal defendant can be found without a determination that the errors were outcome determinative under the second prong of Strickland v Washington, 466 US 668, 696; 104 S Ct 2052; 80 L Ed 2d 674 (1984):8
[T]he principles we have stated do not establish mechanical rales. . . . [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.
The Michigan Supreme Court in Pickens adopted the Strickland version of what constitutes error *317requiring reversal from ineffective assistance of counsel.9 Defendant was unable to put on any meaningful defense as a result of his counsel’s ineffective assistance. He was deprived of a fair trial. This Court need only affirm its past strong reliance on Strickland to uphold the Court of Appeals finding of prejudice on the basis of the facts of this case.
n. THE VIOLATION OF SUBSECTION 20a(5) WAS CONSTITUTIONAL ERROR
“Insanity is everywhere a defense to a charge of crime, for without a sound mind there can be no criminal intent.” 2 Underhill, Criminal Evidence (5th ed), § 450, pp 1128-1129.
[It is a] humane principle, existing at common law . . . that to make a complete crime cognizable by human laws, there must be both a will and an act; and as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that, to constitute a crime against human laws, there must be, first, a vicious will, and, secondly, an unlawful act, consequent upon such vicious will. [Davis v United States, 160 US 469, 484; 16 S Ct 353; 40 L Ed 499 (1895) (internal quotation marks omitted) (quoting 4 Blaclcstone, Commentaries 21).]
The Michigan Legislature enacted the present form of this state’s insanity defense in 1975.10
*318[I]nsaiúty and mental illness are separate defenses with different consequences. . . . “The very definition of legal insanity contained in MCL 768.21a; MSA 28.1044(1),[11] refers to the term ‘mental illness.’ Insanity by definition is an extreme of mental illness. When a person’s mental illness reaches that extreme, the law provides that criminal responsibility does not attach. To put it alternatively, the statutes provide that all insane people are mentally ill but not all mentally ill people are insane.” . . . Thus, if a defendant is found to be mentally ill, he may be found not guilty, guilty but mentally ill, or, if he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, not guilty by reason of insanity. [People v Smith, 119 Mich App 91, 95-96; 326 NW2d 434 (1982).]
A defendant wishing to establish insanity at the time of the offense must notify the court and the prosecuting attorney of that intention thirty or more days before trial. MCL 768.20a(l); MSA 28.1043(1)(1). The notice serves to forewarn the prosecutor. People v Blue, 428 Mich 684, 690; 411 NW2d 451 (1987). It *319also triggers the defendant’s required examination by personnel at a center for forensic psychiatry or by other qualified personnel. MCL 768.20a(2); MSA 28.1043(1)(2).
Failure to submit to the forensic examination and to fully cooperate in it bars a defendant from presenting an insanity defense. MCL 768.20a(4); MSA 28.1043(1)(4). Such preclusion does not violate a defendant’s state and federal constitutional rights to present a defense. People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984).
That right is not absolute, but is subject to the “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). “The defendant is required to fully cooperate so that the examining psychologist can accurately determine the defendant’s competency to stand trial and criminal responsibility at the time of the offense. . . . When . . . the integrity of the evidence of insanity is threatened, the preclusion sanction is warranted.” Hayes, supra at 282-283.
The limitations of § 20a do not unconstitutionally infringe upon a defendant’s right to present a defense if courts comply with them. If they do, defendants have notice of the definitive boundaries of the limitations. Section 20a forbids forensic examiner testimony on issues other than insanity, or on any issue at all, if the insanity defense is not ultimately raised.
The truth-seeking function of trial courts would be substantially impaired if a defendant could raise an insanity defense, then assert the psychologist-patient privilege and preclude an examiner’s testimony. Peo*320pie v Howe, 445 Mich 923, 925; 520 NW2d 338 (1994) (Boyle, J., dissenting). By raising an insanity defense, the defendant has placed his mental state at issue and waived the privilege in that regard.12 Id.
However, the integrity of evidence of insanity is likewise threatened if the examining forensic psychologist is permitted to testify about matters other than the issue of defendant’s insanity. If that were allowed, a defendant would be justified in refusing to provide full disclosure to the examiner, fearful that incriminating information revealed would be used against him at trial. If the statute is ignored, the protections it affords are lost.
When, as here, a court allows an examiner to impeach on an issue other than a defendant’s mental state, it violates the defendant’s constitutional right to *321due process of law.13 To permit such testimony is to place the defendant between Scylla and Charybdis. The defendant must either forfeit his constitutional right to assert the insanity defense14 or forfeit his constitutional right not to incriminate himself.15 These alternatives are equally perilous.
In Colorado v Connelly,16 the United States Supreme Court considered the confession of a mentally ill defendant who voluntarily admitted to having perpetrated a murder. It found that admission of the confession did not deny him due process, because there was no “essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other.” Id. at 165. Connelly confessed without the state exerting any coercion or other action on him. Id. at 160, 165.
Here, by contrast, the state placed defendant in a coercive situation. The statute required him to fully cooperate with the examiner in a forensic interview in order to pursue his insanity defense. MCL 768.20a(2) and (4); MSA 28.1043(1)(2) and (4). Then, the court permitted the examiner to testify about matters other than defendant’s mental state at the time the crime was committed.
A plea of insanity is in the nature of confession and avoidance. By asserting it, defendant admits the charge but denies criminal culpability. But such admission extends only to the consideration of such plea; beyond that it has no *322efficacy in a criminal case. [2 Underhill, Criminal Evidence (5th ed, Supp 1970), § 450, p 370.]
The admission of defendant’s involuntary confession violated his right to due process of law. “The aim of the requirement of due process is ... to prevent fundamental unfairness in the use of evidence whether true or false.” Lisenba v California, 314 US 219, 236; 62 S Ct 280; 86 L Ed 166 (1941). “[F]ailure to afford the petitioner a reasonable opportunity to defend himself against the charge . . . [is] a denial of due process of law.” In re Oliver, supra at 273.
Restricting the use of statements made to a forensic examiner to those pertinent to a defendant’s sanity is a measure to ensure a fair and reliable adjudication of the issue. The potential chill to a defendant’s exercise of the right to present an insanity defense outweighs any potential gains to the truth-seeking process in discouraging or disclosing perjured testimony. James v Illinois, 493 US 307, 317; 110 S Ct 648; 107 L Ed 2d 676 (1990).
Thus, I disagree with the majority’s opinion that the statutory preclusion of the forensic examiner’s testimony involved only a privilege and that its violation was only an evidentiary error. This reasoning ignores the nature of the rights protected by the statute.
The situation was coercive in that defendant’s statements were coaxed from him in an interview that was a prerequisite to his ability to raise the insanity defense. By dint of the statute, the government promised that the evidence produced would be admitted only for a limited purpose. To permit it to use defendant’s incriminating statements breaks the promise and implicates the Fifth Amendment prohibition against *323compelled self-incrimination.17 See People v Wyngaard, 226 Mich App 681, 695; 575 NW2d 48 (1997) (Markman, J., dissenting), People v Reagan, 395 Mich 306; 235 NW2d 581 (1975).
m. CONSTITUTIONAL ERROR ANALYSIS
A. ISSUE PRESERVATION
“To preserve an evidentiary issue for appellate review, a party must object timely at trial and specify the same ground for objection as is asserted on appeal.” People v Considine, 196 Mich App 160, 162; 492 NW2d 465 (1992). “[Requiring a contemporaneous objection provides the trial court an opportunity to correct the error, which could thereby obviate the necessity of further legal proceedings and would be by far the best time to address a defendant’s constitutional and nonconstitutional rights.” People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999) (internal quotation marks omitted).
In this case, defense counsel objected to the testimony of the forensic examiner on the ground that the communication was privileged. The testimony was in fact privileged and inadmissable. MCL 768.20a(5); MSA 28.1043(1)(5); People v Jacobs, 138 Mich App 273, 276-278; 360 NW2d 593 (1984). That defense counsel did not name the pertinent statute when voicing the objection did not render it lacking in adequate specificity to preserve the issue. The trial court was *324sufficiently put on notice of the grounds for objection to prevent the error by precluding the testimony.
B. APPLICABLE STANDARD OF REVIEW
An error that violates the federal constitution obliges us to look to federal precedent for the harmless error rule. The United States Supreme Court has set forth a two-part inquiry. First, a court must ask if the error is a structural defect in the constitution of the trial mechanism, which defies analysis by harmless-error standards. . . .
At the other end of the spectrum . . . are trial errors that occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. This requires the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no reasonable possibility that the evidence complained of might have contributed to the conviction. [People v Anderson (After Remand), 446 Mich 392, 404-406; 521 NW2d 538 (1994) (internal quotations marks, brackets and citations omitted); see also Arizona v Fulminante, 499 US 279, 307-309; 111 S Ct 1246; 113 L Ed 2d 302 (1991); Chapman v California, 386 US 18, 23-24; 87 S Ct 824; 17 L Ed 2d 705 (1967).]
In this case, the error in admitting the testimony of the forensic psychologist was preserved, nonstructural constitutional error. The prosecution bears the heavy burden of showing that the admission of the forensic examiner’s testimony was harmless beyond a reasonable doubt.
[T]he Court has been faithful to the belief that the harmless-error doctrine is essential to preserve the “principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and *325promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” [Fulminante, supra at 308 (citation omitted).]
[W]hether . . . the error was harmless beyond a reasonable doubt ... in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, . . . and, of course, the overall strength of the prosecution’s case. [Delaware v Van Arsdall, 475 US 673, 684; 106 S Ct 1431; 89 L Ed 2d 674 (1986).]
C. APPLICATION OF THE HARMLESS ERROR DOCTRINE
The error in this case was an egregious denial of the defendant’s fundamental right to due process of law. Despite the majority’s claim that the overwhelming weight of the evidence was in the prosecution’s favor, I would hold that it nonetheless failed to carry the burden required by Anderson, supra. There is a distinct, reasonable possibility that the evidence complained of might have contributed to the conviction.
That defendant promised to visit Margo DeVita daily to persuade her to leave his house and that that explains his frequent presence at her apartment does not defy common sense. Defendant is essentially alleging that Margo was obsessive and dependent on him for money and would not leave without assurances of his continued presence and her continued financial security.
Margo testified that someone kicked open her front door from outside. Yet, the only damage to the front door is consistent with someone inside trying to get out.
*326The majority makes much of defendant’s testimony that he heard “Cherry” say “John kill Steve,” an inaccurate statement to the extent that Steve remained alive for hours after being wounded. However, the statement’s inaccuracy does not discredit defendant’s testimony. According to defendant, Cherry witnessed Steve being shot in the face and bleeding profusely. In such a circumstance, any witness might exclaim that the person had been killed.
The majority is skeptical of defendant’s testimony that he struggled with men near Margo’s house, broke away, got into his car parked next door at John’s house, and drove off. However, according to defendant, Margo had told him that John had his car, correcting her earlier story. Defendant likely knew that John lived next door to Margo, and so it is quite plausible that he would find his car there and use it to effect his escape.
Finally, the majority finds unbelievable defendant’s testimony that he engaged in routine behavior after escaping, rather than calling the police. But, defendant easily could have avoided calling the authorities out of fear of repercussions from the real killers because of shock or mental imbalance or because he distrusted the police.
I refute the majority’s interpretation of defendant’s unsolicited statement: “They count five. They say I killed five people. I only kill one. Why do they count five now?” This does not necessarily amount to admission of the crime. The statement could be interpreted in an innocuous manner, especially given defendant’s poor command of the English language. The outburst could have been an expression of his incredulity that he could be charged with three *327counts of murder and two counts of assault with intent to commit murder when only one man died.18
A forensic examiner is a professional, likely a coherent and persuasive witness. For such a witness to testify that a defendant, in interviews before trial, contradicted his testimony in front of the jury would be greatly destructive of the defendant’s credibility.19 This is particularly true here, because defendant was deprived of effective assistance of counsel, his theory of the case having been presented in a vague and confusing manner.
Allowing the forensic examiner’s testimony more likely than not resulted in the jury largely disbelieving defendant’s testimony. As the jury was, in essence, presented only with the prosecutor’s proofs, it is inevitable that the evidence of defendant’s guilt would seem overwhelming. Even so, the jury did not convict defendant on the two counts of assault with intent to murder and the felony-firearm counts supported by those assaults. See supra note 4. If the evidence of guilt was truly overwhelming, it is curious that the jury failed to convict on all charged counts.
*328It was defendant’s testimony alone that rebutted the prosecution’s case. On the basis of the jury’s two and a half days of deliberation, one could reason that the juiy was reluctant to convict. Therefore, it is questionable whether the error in admitting the forensic examiner’s testimony could have been harmless beyond a reasonable doubt.
Criminal defendants have a constitutional right to raise a defense. US Const, Ams VI, XTV; Const 1963, art 1, §§ 13, 17, 20. Yet, access to the defense of insanity is chilled if, in asserting it, defendants expose themselves to impeachment for every inconsistency between their trial testimony and their forensic interviews. The Court of Appeals correctly reversed defendant’s convictions on this ground.
IV. CONCLUSION
Unlike the majority, I find that defendant is entitled to a reversal of his convictions, because he was deprived of effective assistance of counsel. The majority errs in finding that the trial court’s admission of the forensic examiner’s testimony to impeach the defendant was not constitutional error. Furthermore, the trial court’s error was not harmless beyond a reasonable doubt. To allow defendant’s convictions to stand makes a mockery of the law’s concern for a fair trial and damages public respect for the judicial process. I would affirm the holding of the Court of Appeals.
Cavanagh, J., concurred with Kelly, J. Young, J., took no part in the decision of this case.In relevant part, the Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy . . . the Assistance of counsel for his defence. [US Const, Am VI.]
This two-pronged test for ineffective assistance of counsel is derived from the standard set forth by the United States Supreme Court in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see n 8.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
The majority correctly notes in footnote 1 that the prosecution brought ten counts against the defendant and the jury convicted him on six of them. However, the counts of first-degree murder and felony-murder based on two different underlying felonies were cumulative, alternative theories of conviction for the murder of Steven Burge. Double jeopardy would permit conviction on only one of the three counts. Likewise, *314only one of the three counts of felony-firearm based on the underlying murder theories could be upheld. Ultimately, the jury could have convicted the defendant on only six charges: (1) murder or felony-murder, (2) felony-firearm based on the murder, (3) assault with intent to commit murder (Danny Parenteau), (4) felony-firearm based on that assault, (5) assault with intent to commit murder (Russell Parenteau) and (6) felony-firearm based on that assault. The jury convicted the defendant on two of the six noncumulative counts.
This Court recently noted that “the Fourteenth Amendment incorporated and made applicable to the states numerous protections contained in the Bill of Rights." People v Sierb, 456 Mich 519, 526; 581 NW2d 219 (1998). These rights include the Sixth Amendment right to counsel, see Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), and the Fifth Amendment’s privilege against sefi-incrimination, see Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964). “This Court has not hesitated to enforce as strictly against the States as it does against the *315Federal Government the right[] ... to a fair, public trial[.]” Mapp v Ohio, 367 US 643, 656; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
The Fifth Amendment to the United States Constitution provides in relevant part:
No person . . . shall be compelled in any criminal case to be a witness against himselff.] [US Const, Am V.]
While the Fifth Amendment does not expressly include a criminal defendant’s due process right to testify in his own behalf, the United States Supreme Court has repeatedly “suggested that such a right exists as a corollary to the Fifth Amendment privilege against compelled testimony ...” Nix v Whiteside, 475 US 157, 164; 106 S Ct 988; 89 L Ed 2d 123 (1986).
In pertinent part, the Fourteenth Amendment to the United States Constitution provides:
No State shall . . . deprive any person of . . . liberty. . . without due process of law[.] [US Const, Am XIV, § 1.]
Although this Court has never explicitly held that a criminal defendant has a due process right to testify in his own behalf, . . . the right has long been assumed. [Nix v Whiteside, n 6 supra at 164.]
Strickland v Washington, supra. To satisfy the two-pronged Strickland test for ineffective assistance, “the defendant must show that counsel’s performance was deficient. . . [and] that the deficient performance prejudiced the defense.” Id. at 687.
Michigan courts “require a fair trial, not a perfect trial.” Pickens, supra at 314.
1975 PA 180. The statute was amended slightly in 1983. The amendment makes the statute gender neutral and states that “other qualified personnel” aside from personnel at a center for forensic psychiatry can conduct the examination required by MCL 768.20a(2); MSA 28.1043(1)(2). 1983 PA 42, MCL 768.20a; MSA 28.1043(1).
11 (1) It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the offense. An individual is legally insane if, as a result of mental illness as defined in section 400a of the mental health code, Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of being mentally retarded as defined in section 500(h) of the mental health code, Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law. Mental illness or being mentally retarded does not otherwise constitute a defense of legal insanity.
(2) An individual who was under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his or her alleged offense is not considered to have been legally insane solely because of being under the influence of the alcohol or controlled substances. [MCL 768.21a; MSA 28.1044(1).]
The statute defining the psychologist-patient privilege, in relevant part, provides:
A psychologist licensed or allowed to use that title under this part or an individual under his or her supervision cannot be compelled to disclose confidential information acquired from an individual consulting the psychologist in his or her professional capacity if the information is necessary to enable the psychologist to render services. Information may be disclosed with the consent of the individual consulting the psychologist, or if the individual consulting the psychologist is a minor, with the consent of the minor’s guardian .... [MCL 333.18237; MSA 14.15(18237).]
“The privilege of confidentiality belongs to the patient; it can be waived only by the patient.” Dorris v Detroit Osteopathic Hosp, 460 Mich 26, 34; 594 NW2d 455 (1999).
Privileged communications shall be disclosed upon request. . . . (e) If the privileged communication was made during an examination ordered by a court, prior to which the patient was informed that a communication made would not be privileged, but only with respect to the particular purpose for which the examination was ordered. [MCL 330.1750(2); MSA 14.800(750)(2).]
US Const, Am XIV; Const 1963, art 1, § 17.
US Const, Ams VI, XIV; Const 1963, art 1, §§ 13, 17, 20. “There is no question that a criminal defendant has a state and federal constitutional right to present a defense.” Hayes, supra at 278.
US Const, Am V; Const 1963, art 1, § 17.
479 US 157; 107 S Ct 515; 93 L Ed 2d 473 (1986).
Contrary to the assertion of the majority, I am not advancing the position “that every trial error effectively presents a constitutional violation.” Ante at 296. The error in admitting the forensic examiner’s testimony in violation of the statute implicates constitutional rights far more directly and offensively than many other trial errors.
The majority argues “[a] brick is not a wall, and the credibility of defendant’s story cannot be measured by viewing its elements in isolation.” Ante at 301, n 14. Yet the majority also views each element of the defendant’s story in isolation and concludes that it is implausible or that the prosecutor’s version is more plausible. It then piles “pro-guilt” inference upon pro-guilt inference until, together, they constitute “the entire panoply.” The majority’s analysis is equally subject to the criticism it aims at this dissent.
The majority asserts that little additional prejudice resulted from the jury learning that, in his forensic interview, defendant claimed he was never at Margo DeVita’s house the day of the lolling. Ante at 300. I disagree. As already discussed, defendant’s testimony about his “postkilling conduct” was not necessarily prejudicial to him. In any event, the impeachment testimony directly implicating defendant in a lie was far more damaging.