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matters previously unknown to the State are not nearly as greatbecause the State’s expert will have already conducted an examinationof the defendant. On the other hand, because in mostcases both the State and defense expert would be familiar withthe general principles of the forensic interview involved, counselcan quickly identify the specific points in dispute and therebyfocus on specific points for trial preparation. Further, a greatdeal can be learned about the State expert’s testing and clinicalinterview methods employed in order to prepare for direct andcross examination. Of course, the efficacy of any such attemptwill require a candid and open discussion by both experts.IV. Ethical Considerations: Discoveryand Limiting TestimonyThe distinguishing feature of Lagrone and its progeny isthat it justifies a compelled examination of the defendant. Asdiscussed earlier, the case law imposes little, if any, substantiveor procedural limits on the State’s examination, leaving suchmatters to the trial court’s discretion. For all practical purposes,these examinations are unregulated; their scope and subjectmatter are left to the dictates of the prosecutor and State’sexpert. In many fields of expertise, there is simply a lack ofstandardization by which trial courts could ensure that boththe State and defense examinations are commensurate in scope.Further, when the examination includes significant relianceupon factual descriptions by the defendant, a Lagrone hearingeasily equates to a boundless inquiry and is particularly subjectto becoming a limitless discovery expedition. There are fewerareas in which this risk is more palpable and pernicious thanin mental health examinations where there is both widespreadlack of examination standardization and an oft-criticized overrelianceupon the clinical interview, which relies heavily uponsubject descriptions of factual matters.Given the significant role that mental health forensics plays inthe criminal justice system (particularly in the trial of criminalcases), some attention and consideration must be given to variousethical issues specific to forensic mental health assessmentand testimony, which are implicated by the idea (and fact) ofcompelled psycho-legal examinations. Specifically, although theState’s mental health expert conducting the compelled examinationwill be operating in a forensic and advocacy capacity,presumably she will still rely upon principles in the field ofpsychology. As a consequence, as a psychologist relying uponprinciples within the field of psychology, there are certain ethicalstandards and rules that are applicable to her role, the testingmethods employed and the testimony she will offer at trial. Itcould well be that in conducting the compelled examination ortestifying to an opinion based on the examination, the State’sexpert has run afoul of these standards and rules. Though notstrictly a Lagrone legal issue, compelled examinations requireat least some attention be given to the significance and effect,if any, violations of ethical standards and rules should have inthe trial of a criminal case.It could be that such violations will be treated as matters notaffecting the admissibility of the testimony but rather only theweight that the trier of fact is to give such testimony. However,given the Court of Criminal Appeals’ admonishment to trialcourts that in implementing compelled examinations they seekto protect the defendant’s privilege against self-incriminationagainst undue diminution, defense counsel’s identifying, exploringand litigating such ethics-based violations as a meansof challenging the admissibility of the state’s expert is of paramountimportance.A. Ethics-Based Violations as a Means of Affecting Admissibilityof TestimonyIt is beyond argument that an ethics-based violation, muchless one governing mental health experts (as opposed to attorneys),would not be a violation of a “law” for which Article38.23 requires exclusion. 56 That being said, such violations mayform the basis for challenges to the State expert’s testimony intwo basic ways. First, if the ethical violation is so egregious thatit “shocks the conscience,” due process may warrant its exclusion.Second, some ethical standards discourage experts fromacting in certain capacities or offering certain opinions. In suchcases, the ethical standard in fact represents a consensus in thefield that there is no reliable data to support the notion thatsuch opinions can be provided and also be considered reliable.In such cases, the ethical standard embodies the more salientbasis upon which the expert’s testimony may be challenged ina Kelly-Nenno reliability hearing.The significance of any such ethical violations and the meansby which they will be raised in the trial court are left to the creativityof defense counsel in the particular case. Nonetheless, theissue is significant enough to warrant some discussion here.B. Specific Ethical Issues for ConsiderationThere are three general areas to which defense counsel shoulddirect attention for purposes of fashioning ethics-based challengesto the State expert’s testimony: forming opinions forwhich there is insufficient supporting data, acting in mixedforensic and clinical roles, and the use of deception in an examination.1. Professional Standards within the Expert’s Field Discouragingthe Opinion the State’s Expert Will Testify to at TrialApril 2006 VOICE FOR THE DEFENSE 21