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limiting language. However, because there is no standardization inthe forensic psychiatry field concerning whether any such inquiresare required and, if so, which tests can be employed, will mean that,in effect, there is no limitation to the evaluation as long as the State’sexpert can claim that they need to test to undertake the inquiry athand.11 TEX. EVID. R. 703 (“The facts or data in the particular case upon whichan expert bases an opinion or inference may be those perceived by,reviewed by, or made known to the expert at or before the hearing.”)See McBride v. State, 862 S.W.2d 600 (Tex.Crim.App. 1993) (expertmay testify to opinion based on hypothetical question if based on thefacts of the case); see also Duckett v. State, 797 S.W.2d 906, 920 n. 17(Tex.Crim.App. 1993) (expert testimony based on facts learned whilelistening to the testimony in the courtroom).12 In criminal cases, the defendant does not enjoy a privilege in his medicalrecords. TEX. EVID. R. 509 (b).13 Some criminal procedure commentators view the privilege against selfincriminationas composed of two constituent parts: one is concernedwith trial (calling the defendant as a witness at trial and prohibitingcomment on the exercise) while the other is concerned with pre-trialinvestigative procedures and prohibiting compelling the defendantto participate in State interviews. See generally Crim. Proc. §6.5 (a)(noting that privilege against self-incrimination was at some pointrecognized to act as “a restraint upon police interrogation practices”in addition to legal compulsion to testify at trial. The Lagrone doctrine,curiously, permits what is compelled in pre-trial investigative aspectby presuming a waiver of the trial aspect.14 Lagrone v. State, 942 S.W.2d at 611.15 Soria v. State, 933 S.W2d at 59.16 Id.17 Id.18 “Indeed, in this case, the trial court deserves commendation for itsefforts in ensuring that the defendant’s 5th Amendment rights wereprotected to the greatest possible extent. Other courts would do wellin the future, in fact, to follow the guidelines adhered to by the trialcourt in this case.” Lagrone v. State, 942 S.W.2d at 610 n.6.19 “Because the defendant has not actually waived the Fifth Amendmentprivilege prior to the presentation at trial of his future dangerousnessexpert testimony, it is crucial for the trial court to protect thedefendant’s 5th amendment rights …” Lagrone v. State, 942 S.W.2d at612 n. 8.20 See Soria v. State, 933 S.W.2d at 54 citing United States v. Byers, 740F.2d at 1113.21 See Soria v. State, 933 S.W.2d at 54 quoting United States v. Byers, 740F.2d 1104 (D.C.Cir. 1984).22 It should be remembered that Lagrone did not place any express limitson the scope of the examination by only placed restrictions on thetestimony the State could present based on any compelled examinationprocedures: the State expert’s testimony must be “limited to the issuesraised by the defense experts.” Lagrone v. State, 942 S.W.2d at 611.23 Id.24 Intent to present expert testimony may be required by statutorydiscovery provisions. Statutes governing procedure or substantivedefense may require the defendant to give notice of intent to presentexpert testimony. For example, article 39.14 requires such notice begiven in written form “not later than 20th day before the date that thetrial begins.” TEX. CODE CRIM. PROC. ART. 39.14 (b); see also TEX.CODE CRIM. PROC. ART. 46.03 § 2 (requiring defendant give notice10 days prior to trial, or if a pre-trial hearing is set before the 10-dayperiod at the pre-trial hearing, or if he raises the issue of competenceto stand trial before the 10 day period, he shall give notice at that time).It is not clear as to whether providing notice of the intent to presentexpert testimony or intent to raise the insanity defense alone is sufficientto implicate a compelled Lagrone examination. At a minimum,giving such notice may at least warrant an inquiry from the State asto whether the prospective defense expert testimony is based on anexamination of the defendant.25 See e.g., Estelle v. Smith, 451 U.S. at 464, 101 S. Ct. at 1873-74 (holdingthat fifth amendment privilege against self-incrimination violated byoffering testimony derived from a court ordered examination of thedefendant not accompanied by warnings).26 See e.g., S:3 J. AM. ACAD. PSYCHIATRY LAW, 40 (2002).27 There are various online databases containing libraries of professionalarticles and journal publications addressing a large number of forensicissues. For example, PubMed is one such database and contains some15 million citations from MedLine and other journals maintained bythe National Library of Medicine. The PubMed web address is www.ncbi.nih.gov.28 See e.g., HEILBRUN, DEMATTEO, MARCZYK, HANDBOOK OFFORENSIC MENTAL HEALTH EXAMINATIONS (2002); see alsoGROTH-MARNAT, HANDBOOK OF PSYCHOLOGICAL ASSESS‐MENT, (2003) (discussing the various psychological and psychometrictesting techniques along with their strengths and weaknesses).29 This question is obviously a function of whether the subject may beone properly testified to by a lay witness. Some subjects may properlybe the subject of expert testimony thus leaving the only question ofwhether to present expert testimony and, if so, how.30 See Lagrone v. State, 942 S.W.2d at 612 n.8.31 This is especially true in the so-called “soft sciences” such as psychology.See Nenno v. State, 670 S.W.2d 549, 562 (Tex. Crim. App. 1998) (coiningthe phrase “soft sciences” to describe fields such as psychology).With respect to many of the “soft sciences” there is often disagreementconcerning which psychological tests are to be employed for a givenforensic issue, and, if they are employed, the significance to be accordedthe role of the clinical interview which, for defense counsel, poses thebiggest risk of abuse by compelled State examinations, given the factthat they are unregulated and non-standardized. See generally, RICH‐ARD ROGERS & DANIEL W. SHUMAN, CONDUCTING INSANITYEVALUATIONS, (2003) 217–42 (discussing various methods use inapproaching insanity evaluations and the role of the clinical interview,the role of the anecdotal opinion as opposed to the uses of tests forwhich validity and reliability studies have been conducted).32 Soria v. State, 933 S.W.2d at 57-58. See also Vardas v. Estelle, 715 F.2d 206(5th Cir. 1983) (testimony derived from the government’s examination“used solely in rebuttal and properly limited to the issue raised by thedefense).33 ROGERS & SHUMAN, CONDUCTING INSANITY EVALUATIONS,217-42.34 One of the leading texts in the field states “[c]lincial interviews constitutethe cornerstone of insanity evaluations” because “[o]nly clinicalinterview have the versatility of systematically collecting backgrounddata and information about the offense itself.” ROGERS & SHUMAN,CONDUCTING INSANITY EVALUATIONS, 151. These authors haveconcluded that the other means of conducting the examination–by useof the standardized testing and structured interview — are the bestmeans of doing so. However, there is no requirement discipline-widethat either of these be utilized if at all in making the determination.35 Although this would seem to violate the rationale of Lagrone — i.e., byrelating “remorse and other feelings...concerning the offense” or whathe was “doing on or about the time of the offense,” it is clear that Lagronewould impose no such limitation on the State’s examination.36 Soria v. State, 933 S.W.2d at 54 quoting Bettie v. Estelle, 655 F.2d at701-02.37 “[A] defendant has a very difficult choice to make: should he waivehis right against self-incrimination on all relevant issues, knowingsome unfavorable evidence might result from cross-examination; orshould he retain that right and yet not put his version of some aspectof the case before the jury ... This difficult decision does not impose animpermissible burden upon the exercise on Fifth Amendment rights.No constitutional violation is presented by the fact of a difficult deci‐24 VOICE FOR THE DEFENSE April 2006