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For purposes of limiting the impact of Lagrone, to the extentthat the expert’s opinion may be arrived at consistent with professionaland ethical standards governing the field of expertise,the goal of the defense interview of the defendant is to (1) limitthe amount of clinical interviewing to a minimum, (2) in bothclinical interviews and with psychometric testing, limit theinformation provided by the defendant to ensure to the extentpossible that “facts” of the offense are not related, (3) limit, tothe extent possible given the dictates of the particular field,the use of psychometric testing that relies heavily (or at all) onthe subject’s description of the “facts” of the offense, (4) to theextent possible, choose a subject of inquiry for which there islittle disagreement amongst experts in the field concerning thebattery of testing (psychological or otherwise) necessary to formthe particular opinion, choose a subject of inquiry for whichthere is not much disagreement within the field concerning acceptableinterview and psychometric testing techniques, (5) limitpsychological testing to those for which reliability and validitytesting have been conducted, published, reviewed and for whichthere is general acceptance in the field and (6) memorialize theinterview. Taking these steps can assist in helping to ensure thatthe State expert’s otherwise unregulated interview can be limitedin scope and inquiry as much as is possible commensurate withthe defendant’s examination.4. Limit the Subject Matter to Be Covered in the ExaminationOne of the most significant problems associated with givingthe State’s expert a carte blanche ticket to interview the defendantis the fact that the case law does not impose any limitationson the subject matter that the State’s expert may cover in theexamination of the defendant. Although it seems obvious thatthe State’s examination must be limited to that of the defenseexamination, this does not serve as a significant restriction becausethe expert’s may have very divergent ideas of what specificmatters should be covered within the examination to addressthe general subject. 32 It is useful to remember that the Courtof Criminal Appeals has indicated only that the State’s rebuttaltestimony is limited to the issues raised by the defense expertbut has not set any limitations on the scope of the examinationitself or the direct or derivative uses to which the State may makeof the examination results. 33Consideration of the insanity defense highlights the problemwell. Efforts to standardize the specific forensic examinationemployed by forensic psychiatrists to address the question ofinsanity have only recently been undertaken. 34 For many yearsthere has been no discipline-wide standardization concerningwhich of the various psychological and personality testsshould be employed, the role of the clinical interview, the roleof opinions based on anecdotal experience as opposed to theuse of tests for which validity and reliability testing had beenconducted, of either the psychometric testing techniques orthe course that clinical interviews should take was left to thediscretion of the individual forensic psychiatrist. In the contextof insanity evaluations, without discipline-wide standards,forensic psychiatrists have had available psychological examinations— some of which are standardized, others for whichthere have been reliability and validity testing; others for whichthere have not. 35Consequently, expert opinion can be arrived at by vastlydifferent methods and examinations varying significantly inscope making regulation of such examinations to ensure parityin scope difficult. For example, in the context of insanityevaluations, defense counsel’s expert may choose to rely onwitness reports of the defendant’s behavior before, at or afterthe time of offense in lieu of specific questions concerning theoffense. However, because of Lagrone’s lack of standards, ina compelled Lagrone hearing, the State’s expert may seek thedefendant’s description of facts relating to the offense on thegrounds that such an inquiry is necessary to formulate thesame opinion that the defense expert formed without resortto such an inquiry. 36 Under Lagrone, the State’s expert wouldbe justified in making such inquiries because under the Courtof Criminal Appeals’ doctrine of constructive testimony, oncethe defendant has presented testimony based on a personalinterview, no more inquiry is required and he is said to havesubjected himself to cross-examination “in the same manneras would the defendant’s election to testify at trial.” 37Given this possibility, the challenge for defense counsel is tolimit the issues for expert inquiry to those for which examinationsemploy only standardized testing and interviews such thatthe trial court may be in a better position to institute proceduraland substantive safeguards ensure the state’s Lagrone examinationis no more expansive in scope than the defendant’s.5. Control the Information ProvidedObvious benefit can be gained from controlling the informationthe defendant provides in a compelled Lagrone examination.However, any such testimony must be consistent withthe needs of the defense expert’s ability to make a full inquirynecessary to formulate the particular opinion sought. By pursuinga strategy of limiting the defense examination, defensecounsel is attempting to fashion a template to which a trialcourt may limit a State’s examination. The watchword, however,is to ensure that any attempt to limit the defense examinationand, in turn the State’s, is that it must be done consistent withthe professional standards applicable to the particular forensicissue involved: one would not want to limit the examinationand obtain an expert opinion that is not soundly based onprinciples in the particular field. One way this can be done is to18 VOICE FOR THE DEFENSE April 2006
prepare the defendant for the examination. However, preparingcannot be undertaken unless defense counsel has some idea ofwhat the examination will entail and when the examinationwill occur. Determining what the examination will entail is amatter of determining, to the extent possible, its scope in termsof various testing techniques employed in determining the issueand, if possible, discussing with the State’s expert the tests andtechniques she intends to employ.One safeguard defense counsel should ask the court to orderis notice concerning when the State’s examination will occur.In this regard, counsel must move the court to order the Stateto provide notice of its Lagrone examination, for example, 48hours in advance so counsel can confer with the defendant priorto the examination in order to prepare him for the examination.38 The specifics of the preparation are best decided afterconferring with any defense consulting or testifying expert,bearing in mind that in some cases, advance preparation, mayinterfere with the State’s examination and, in such cases, suchpreparation should not be undertaken.Moreover, counsel should ask the court for her expert’s presenceat the interview. 39 This request will almost absolutely bedenied. However, commensurate with other contexts involvingcompelled testimony, defense counsel should insist that thedefendant be permitted to break the interview upon demandand consult with counsel. 40 When the interview is concluded,counsel should interview the defendant as soon as possible todetermine the specific matters covered, the type of tests administeredand the defendant’s responses while these matters arelikely to still be fresh in the defendant’s memory.6. Control Prosecutor’s Use of the Testimony: Lagrone’s AnticipatoryWaiver DoctrineOnce the examination has been conducted, under Lagrone,nothing prohibits the State from making immediate use of theinformation beyond preparation of its own experts for director rebuttal testimony; indeed, there are no such limits. NeitherLagrone nor its progeny prevents the State from makingderivative use of the information provided by the defendant;instead, Lagrone only limited the scope of the testimony thatthe State may present based on its examination of the defendant.41 Lagrone’s doctrine of anticipatory waiver means theState may compel the defendant to submit to a court-orderedexamination well before any trial occurs and provides it withample opportunity to develop derivative evidence or testimonybased on the defendant’s compelled responses. Given the lackof any guidance as to what actually constitutes intent to presentexpert testimony, defense counsel may be faced with a compelledLagrone examination well before trial. 42Thus, this possibility further warrants defense counsel’sefforts to control not only the information made available tothe prosecution through a Lagrone compelled examinationprocedure, but also when the State will get the information andwhat uses and can be made of the testimony. In Lagrone, the trialcourt implemented an important safeguard that attempted todo by prohibiting the State’s expert from disclosing his reportto the prosecutor until after the defendant had presented hisown expert’s testimony. 43 However, defense counsel should alsoconsider urging the following on the trial court:(1) That the State’s interview be memorialized insome way, by recording–audio or visual;(2) That the examination be reduced to writing anda report generated setting forth the standardized testsadministered, results from clinical interviews, etc.;(3) That the State’s expert be prohibited from revealingthe information to the State until a date later orthe report;(4) That no derivative or direct use of the testimonycould be made by the State beyond forensic use; and(5) Ask the trial court to release only the findings andnot the report itself. 447. Memorializing the State’s Examination: Statutory ReportRequirements as Template for Minimal Guidelines of StateExpert’s ReportIn the event that the trial court requires the State’s expertto memorialize the examination in some way, defense counselmay seek as detailed a memorialization as creativity permits.However, at a minimum, any court-ordered memorializationof the State expert’s examination should meet the statutorilyenumeratedrequirements governing expert reports for courtorderedcompetence and sanity evaluations. 45 By statute, theexpert’s report on competency must include the following:(1) A statement indicating that the expert explainedto the defendant the purpose of the evaluation, thepersons to whom a report on the evaluation is provided,and the limits on rules of confidentiality applyingto the relationship between the expert and thedefendant;(2) A statement in general terms describing the procedures,techniques, and tests used in the examinationand the purpose of each procedure, technique, or test;and(3) A statement of the expert’s clinical observations,April 2006 VOICE FOR THE DEFENSE 19
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