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The initial question that defense counsel faced with the presentationof any expert testimony (including his own), especiallymental health testimony, is whether the expert’s field of expertisehas promulgated ethical standards that discourage or prohibitits members from offering a particular opinion. For example,it is well known that the American Psychiatric Association hasstated its position discouraging expert forensic opinions on theissue of future dangerousness because they do not believe thatfuture dangerousness can be predicted with any degree of validityor reliability employing any of the available examinationsor tests. 57 However, there is the possibility that such a challengeis not likely to be sustained as trial courts generally view suchviolations as being only a matter of the weight to be accordedthe testimony and one best explored on cross-examination. 58Nonetheless, defense counsel should direct some attentionto violations of such ethical rules because they are generallypremised on intensive investigation by experts in the field asto whether such opinions can be formed with any degree ofreliability and validity.It may be that the lack of supporting data or of the testingmethods employed to form the opinion may be so significantthat the expert may not be able to satisfy the reliability prongof Nenno v. State. 592. Prohibition on Role in Which the Expert Acts: Inherent ConflictBetween the Therapeutic/Clinical and Forensic RolesAs a mental health professional, the State’s expert may actin various capacities. There are two basic roles in which theState’s expert may act: in a therapeutic/clinical role and in aforensic role. There are ethical considerations specifically applicableto each which generally seek to ensure that the two arenot mixed.The therapeutic and forensic roles are inherently in conflict. 60The most obvious differences are in the widely divergent goals.While in a therapeutic or clinical capacity the expert’s goal isensuring the welfare of the subject, in the forensic role, theexpert’s role may be in conflict with the subject’s welfare. Moreover,in the therapeutic role, the expert’s role is ongoing and iscomprehensive in scope while in the forensic role her emphasismay call for a “single cross-sectional determination.” 61Because of these divergent goals, all the leading mental healthprofessional associations have promulgated strict rules prohibitingthe mixing of the roles to ensure that “therapists are [not]employed as forensic experts.” 62 Simply put, these associationshave concluded that “mental health professionals cannot act ina mixed forensic and therapeutic role” competently or ethicallybecause of [the] irreconcilable conflicts” between the two.” 63For defense counsel facing a Lagrone compelled examination,this prohibition is critical. In larger counties there is a likelihoodof the State expert’s having previously acted in a clinicalor therapeutic capacity with respect to the defendant when theState’s expert is one of a few mental health professionals whoroutinely perform mental health services for the county on acontract basis. For example, I represented a defendant in a casein which there were significant mental health issues involved.After giving notice of the intent to raise the insanity defense, theState sought a Lagrone-compelled examination of the defendant,who had an extensive history of mental health treatment bothin and out of jail. Parsing through the voluminous records, Idiscovered the State’s expert, who had now been retained inan adversarial and forensic capacity, had several years beforetreated the defendant in a clinical capacity. Based on this, a motionto “disqualify” this expert was drafted asserting this ethicalviolation. The practical import of the motion was to discouragethe State from using this particularly effective expert at trialby hopefully placing him in the position of having to choosebetween violating the ethical rules of an association of whichhe was a long-standing and respected member, and testifying.Because the insanity defense was never presented at the trial, theissue was never litigated. Nonetheless, defense counsel shouldalways consider the expert’s ethical standards as a means ofchallenging the testimony.3. The State Expert’s Use of Deception in a Compelled Examinationin Order to Discover Facts and Form an OpinionIt has been noted that the definitive feature of a compelledLagrone examination is that it can amount to a practicallylimitless interrogation of the defendant in which there is norequirement for defense counsel’s participation. Because clinicalinterviews tend to be universally relied upon by mental healthprofessionals, the lack of standardization of such interviewsrenders such examinations fraught with the possibility ofabuse. Bearing in mind the goal of the State’s expert is purelyforensic and adversarial, as an agent of the State, there is little,if any, limitations on not only the subject matter covered in theexamination but the means by which information will be soughtfrom the defendant. However, because the Court of CriminalAppeals has not addressed many of the implications of theLagrone compelled examination procedure, there are severalcritical questions which have been left unanswered.One of the most critical areas for which there is the possibilityof abuse is that of the extent to which the State’s expert mayemploy deception and, indeed, even lie to the defendant duringa compelled examination in order to obtain information andresponses. As an advocate and agent of the State, familiar rulesindicate that a State agent may employ deception so long as thedeception is not likely to cause the defendant to speak untruthfully.Applying this rule to the State’s mental health expert would22 VOICE FOR THE DEFENSE April 2006
indicate that she may employ deception to the same extentas is permitted an interrogating police officer. For example,under existing law, the State’s expert might be permitted torepresent to the defendant during a compelled examinationthat he in fact has been retained by defense counsel in order toassist in the defense. In such a case, the State’s expert could wellargue that doing so encourages honesty, the defendant’s whichwould otherwise be lacking if the truth were told that he hadbeen retained by the State. Although deception is discouragedby professional mental health associations, a violation of thisethical rule would not likely require the court to exclude theexpert’s testimony because the ethical rule is not a “law” withinthe meaning of Article 38.23.However, defense counsel could argue that such representationsactually violate other constitutional rights such as the rightto counsel or otherwise undermine the ability to voluntarilywaive the right to remain silent which might warrant exclusionof information gained as a result of the deception. Deceptionsuch as that posited in this example in my estimation might alsorise to the level of “outrageous” government conduct warrantingexclusion of the information gained on independent dueprocess and due course of law grounds.The essential point for consideration is that Lagrone’s compelledexamination procedure does not adequately addresssuch possibilities requiring, defense counsel to be steadfast inensuring that only appropriate means are employed in the State’sexamination of the defendant.IV. ConclusionThis article has attempted to discuss the development of theLagrone constructive waiver doctrine and its compelled examinationprocedure, along with its theoretical underpinnings andshortcomings. By doing so, this article has attempted to identifyareas of significant risk to the defendant and means by whichthese risks may be diminished.For defense counsel who must present expert testimony requiringan examination of the defendant, consideration of thestrategies discussed here is imperative. Only through thoroughfamiliarity with the specific matters for which the expert opinionwill be offered and, in turn, effective education of the trial courtsto the particular unaddressed risks that Lagrone poses to unnecessarydiminution to the privilege against self-incriminationcan Lagrone be effectively managed. The watchword for defensecounsel is that Lagrone can be implemented in such a way tosafeguard parity to the State, with which the Court of CriminalAppeals was concerned, while implementing proceduralsafeguards that do nothing to further parity and only serve todiminish the privilege.endnotes1 See e.g., Pacheco v. State, 757 S.W.2d 729 (Tex.Crim.App. 1988).2 Texas Evidence Rule 701 expressly prohibits lay witnesses from offeringtestimony on matters that would be considered the province of experttestimony, i.e., matters based on “scientific, technical, or other specializedknowledge … ” TEX. EVID. R. 702. See, e.g., In Re I.R.H., 2002WL 1804922 (Tex. App.—Austin 2002, no pet.) (trial court properlyexcluded lay witness’ opinion … where lay witness not qualified by theState as an expert).3 See e.g., S:3 J. AM. ACAD. PSYCHIATRY LAW, 40 (2002).4 TEX. CODE CRIM. PROC. ART. 46.03 §3 (d). As discussed earlier,Lagrone makes no exception for the testimony of such “disinterestedwitnesses” despite the expert’s notes and testimony is accessible to boththe State and the defendant.5 See TEX. CODE CRIM. PROC. ART. 46.03 §3.6 Lay witnesses may testify “to those opinions or inferences which are… rationally based on [their] … perception[s]… and … helpful to aclear understanding of… [their] … testimony on the determinationof a fact in issue”, TEX. EVID. R. 701, as long as the witness is nottestifying as an expert. TEX. EVID. R. 702. The Court of Criminal Appealshas held that lay witnesses may testify on a wide range of topicsthat might otherwise seem to be within the sole province of experts.See e.g., Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App. 1978)(sanity, value, handwriting, physical condition, heath and disease, age,size, weight, quantity, time, distance, speed, identity, intoxication, etc.,are all permissible areas for lay opinion). See also Fuller v. State, 423S.W.2d 924, 928-29 (Tex. Crim. App. 1968) (lay testimony concerningwhether a defendant knows right from wrong).7 In Soria v. State, the defense expert testified and the Court of CriminalAppeals noted that the defense expert’s testimony related to factsconcerning “what [he] was doing on or about the time of the allegedoffense.” 933 S.W.2d at 56. In this regard, the Soria court seemed tobe concerned with the emphasis and focus of the defense expert’s testimonyon matters that related directly to factual matters concerningthe issues at the trial, i.e., future dangerousness.8 “The aid of an expert as a consultant in the investigation and preparationof a case may be useful even if the expert is not subsequently usedat trial ... In addition to developing affirmative evidence, the expert canserve an important role in preparing counsel for the expert evidencethat will be presented by the prosecution. The expert can familiarizecounsel with the scientific theory supporting the admissibility of theState’s evidence and with any potential problems associated with applyingthat theory to the defendant’s case ... By utilizing an expert in thismanner, counsel will be better prepared to challenge the admissibilityof the State’s expert evidence.” 2 GEORGE DIX & ROBERT DAWSON,TEXAS CRIMINAL PRACTICE AND PROCEDURE: PRACTICEGUIDE §61.09 (2002).9 S:3 J. AM. ACAD. PSYCHIATRY LAW, 40 (2002).10 For example, in the context of forensic insanity evaluations, somemental health experts look for varying “response styles” of which malingeringand deception are two. See generally, ROGERS & SHUMAN,CONDUCTING INSANITY EVALUATIONS. However, they need notdo so. While some experts may employ specific detection strategies,including traditional interviews, rare symptoms tests, improbablesymptoms test to determine the presence of malingering, others maysimply rely on subjective analyses and anecdotal experience. Moreover,it is well-settled that a particular person’s identification of malingeringor feigning is likely to be a result of the explanatory model of malingeringto which he or she ascribes. The same is true in the diagnoses ofamnesia and dissociation, two features commonly occurring alongsideclaims of insanity. Forensic mental health experts employ a numberof various means for detecting cognitive organic or psychogenic amnesia.Consequently, whether your expert requires an interview forthese inquiries should determine whether and to the extent to whichthe State’s expert can interview your witness according to the Court’sApril 2006 VOICE FOR THE DEFENSE 23
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