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Constructive Waiver and CompelledDefendant Interviews:Understanding the Lagrone Doctrineand Implementing Strategies forLimiting its Effectpart twoBy Dexter E. GilfordII. Practical Considerations For Defense Counsel in Addressing A CourtOrdered Lagrone ExaminationA. IntroductionThe State’s ability to invoke Lagrone’s compelled examination procedure is of critical importance to the criminal defense practitionerin any case in which defense counsel is considering the presentation of expert testimony based in, any part, on a personalexamination of the defendant. Indeed, strictly construed, Lagrone’s sweeping rationale appears applicable to any testimony — notjust expert testimony — sponsored by the defendant that is “based” upon a personal examination of the defendant. No longersimply a concern to defense counsel in capital murder cases, Lagrone’s rationale could be read to apply with equal force to a widevariety of expert testimony for which an interview of the defendant may be a fairly customary and routine matter to which notmuch consideration is given. 1 In this regard, Lagrone may well be applicable to any criminal case and render what is normally adecision of routine trial strategy whether to present expert testimony one attendant with significant additional risks.Given the considerations engendered by Lagrone and its progeny, in some circumstances the better decision may be to completelyforego presenting expert testimony if a sound and defensible opinion may not be rendered without a personal interviewof the defendant. The lack of procedural safeguards attending a Lagrone compelled examination and the lack of examinationstandardization within the expert’s respective discipline may well dictate that such testimony be foregone completely. In somecases, depending on the issue, defense counsel may have a choice between presenting lay or expert testimony, such as is the casewith the insanity defense. 2 However, in other cases, there may not be any alternative to presenting expert testimony. 3 In somecases, a sound and defensible expert opinion cannot be rendered without a personal interview of the defendant. 4 In these cases,defense counsel must consider means of addressing the unique challenges posed by Lagrone including the implementation ofstrategies that limit its impact.14 VOICE FOR THE DEFENSE April 2006