1 - Voice For The Defense Online

'PROSECUTORIAL COMPULSION from p. 8Conceahnent of Writing], of the PenalCode.Thus, a defense attorney confrontedwith an attempted compulsion of the tes-&&imony or reports of his expert witnessescan probably only attempt to controvertthe legality of an order by thetrial judge direding their testimonyor authorizing prosecutonal discovery oftheir reports.10 It is now appropriate toexamine the legal theories upon whichdefense counsel can attempt to contestthe legality of prosecutoriz attempts atcompulsow discovery of defense-huedexp&t's t&tmony and reports.IU. COMPULSION OF DEPENSE-HIREDEXPERT TESTIMONY AND PROSE-CUTORIAL DISCOVERY OF THEIRREPORTSThere are four theories which can beadvanced by defense counsel to defeatprosecutorial attempts to compel defensehiredexpert testimony or the discoveryof their reports. Specifically, it oan beargued that the compulsion of such testimonyand reports: I) invades the attorneyclientprivilege, 2) falls with the purviewof the "work product" doctrine, 3) violatesa defendant's right, nnder the FourteenthAmendment. to due process of lawbecause of a lack of reciprocal discoverybetween the prosecution and the defense,and 4) violates a defendant's right to effectiveassistance of counsel nnder theSixth and Fourteenth Amendments.A. The Attorney-Client PrivilegeThe attorneyclient privilege can berelied upon to protect ONLY the testimo-ny of defense-hired experts relating tofacts obtained from the attorney and thedefendant-client.11In Unlted Statds v. Unzted ShoeCo.,12 a federal district court set out adefinition of the common law rule of theattorney-client privilege:The privilege applies only if 1)the asserted holder of the privileaeis or soueht to become aclient; 2) the p&on to whom thecommunication was made a) isa member of the bar of a court,or his subordinate and b) in con-~lection with this communicationis acting as a lawyer; 3) the communicationrelates to a fact ofwhich the attorney bas beeninformed a) bv his client b) withoutthe presence of strangers c)for the purpose of secnrina primarilyeither i) an opinion-onlaw or ii) legal senices or iii) assistancein somelegal proceeding,and not d) for the purpose ofcommitting a crime or tort; and4) the privilege has been a)claimed and b) not waived bythe client.'"In W~ll~ams v. Wtlkams,l4 Article 713(now Article 38.10) C.C.P., was held tobe a codification of the common law attorney-clientprivilege so well stated inUn~ted Shoe Co. 15 The #~lllams Courtstated that[tlhe rule IS absolute as to communicationsmade with an attorneyas to past transactions andoffenses. . . .The purpose of it isto secure to litigant's free communicationwith their attorneysupon all matters involved in Utigationand any other legitimatematters concerning which legaladvice is desited.16 (emphasisadded)However, in Ballnrd v. Ballard,'7 a TexasCourt of Civil Appeals stated that ". . .before a communl~ation to an attorney isprotected it must appear that the communicationwas made by a client. . ."18in professional secrecy.Ballard appears to limit the privilegeto those matters which directly pass betweenan attorney and his client. However,according to Willmms, the rule is tosecure all matters involved in litigationor upon which legal advice is requested.Thus, it cp be argued that the rule doesnot cover dl situations encompassed bythe policy since matters passing from aclient to an attomey through a third partyintermediary have not been held privilegedby the Texas courts.In United States v Kovel, 19 theSecond Circuit was confronted with asituation where the defendant Kovel wasadiud~ed in contempt of court forrefusinrto-answer a question asked by the grand-. iurv. Kovel was a full time, non-lawyeremployee for a law firm, specializi& inaccountidg. The court recognized twoconflicting forces; the need for truth inthe fact-finding process demanded therestnetion of the privilege, and yet anattorney should be allowed to rely uponprolcssinnd agents in the prupdration ofhis cases with the arsurance that all workprepared for him would not be disclosedto the opposing party.zO The court heldthat statements made in confidence bythe client to agants of the attorney wereprivileged regardless of the presence orabsence of the attorney.21 The Kovelprinciple has been held not limited solely.to cases in sta~es of litieation.22 It hasbeen extended 6 protect those persons inprivitv - - with the attorney ox clisnt.23 andsuch communications to non-lawyeragents will fall within the scope of theprivilege if they form hnks in the chain of~ommunication between the attorney andthe client.24 Further, Kovel has been extendedto experts other than accountants;25therefore, all experts are theoreti-cally included within the scope of the privilege.Two arguments have been advancedto justify the expansion of this privilegeto experts. One may argue either that theexpert is merely a conduit who relates theclient's communioation to the attorney,or that the expert acts as an interpreter totranslate the significance of the client'sinformation to the attorney.26Texas, however, docs not appear tohave adopted any of the foregoing viewsof the attorney-client privilege. li~M~narv Bishop,z7 a Court of Civil Appeals heldthat where &atements were made to anattorney who represented two distinctparties, and they were made in the preenceof a number of other interestedlitigants with the intent that all litigantshear the statements, such statements werenot privileged. Thus, Minor apparentlystands for the proposition that statements,made in the presence of parties not agentsaf the attorney and not intended to beprivileged, will not be privileged. Moreimportantly, Johnson u. State.28 heldthat where statements were made in ageneral conversation by the accused to hisattorney and another person, these statementswere not privileged. There, however,the relationship of the third party tothe accused or the attorney was not revealedby the Court's opiniok.29Thus, although no authoritative casehas been handed down by the Texascourts,30 an argument can be made thatthe attornevclient vrivilene in Texas doesextend to protect -the testimony of defense-hiredexperts from discovery. If theprivilege doesso extend, however, it willonly attach to the statements made bythe defendant to the expert? because. . .the protective cloak of this[attorney-client] privilege doesnot extend to information whichan attorney secures from a witnesswhile acting for his clientin anticipation of litigation. Nordocs the privilcgc conecni thememoranda, hlicfs, conin~unicationsand other writings preparedby counsel for his own usein prosecuting [defending] hisclient's case, md it is equally unrelatedto writin@ which reflectan attorney's mentalimpressions,conclusions, or opinions or legaltheories.31Of course, merely because Texas has notadopted the Koval principle and its extensionsdoes not mean that the courtswill not protect statements made by adefendant to a defensehired expert.Glven the complexities in the preparationof a criminal defense, the need for a clarifiedposition on this issue by the courtsof Texas is obvious. This is particularlyVDICE for the DefenselAprzl I978