1 - Voice For The Defense Online

More documents

Recommendations

Info

PROSECUTORIAL COMPULSION from p. 8 the client. l3 cally included within the scope of the pri-Concealment of Writing], of the PenalIn Wrlliarns v. W1lhams,14 Article 713 vilege.(now Article 38.10) C.C.P.. was held to Two armments have been advancedbe a codification of the common law attorneyclientprivilege so well stated inUmted Shoe Co.lS The Wtlllarns courtstated thatThus, a defense attorney confrontedwith an attempted compulsion of the tes-&&nony or reports of his expert witnessescan probably only attempt to controvertthe legality of an order by thetrial judge directing their testimonyor authorizing prosecutorial discovery oftheir reports.10 It is now appropriate toexamine the legal theories upon whichdefense counsel can attempt to contestthe legality of prosecutorial attempts atcompulsory discovery of defense-hiredexpert's testimony and reports.111. COMI'ULSION OF DEFENSE-HIKEDEXPERT TESTIMONY AND PROSFCUTORIAL 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 can beargued that the compulsion of such testimonyand reports: I) invades the attorneyclientprivilege; 2) falls with the purviewof the "work product'' doctrine. 31 violatesa defend& right, under the FourteenthAmendment. to due process of lawhrcauw of a lack of ncipr;,cal discwcrybctwcen the prwccution and the defense,and 4) violat& a defendant's right to effectiveassistance of counsel under theSixth and Fourteenth Amendments.A. The Attomey-Client Pri~ilegeThe attomey-client privilege can berelied upon to protect ONLY the testimonyof defense-hired experts relating tofacts obtained fmm the attorney and thedefendant-client 11In united ~totgs Y. ~mted shoeCo., 12 a federal distriot court set out adefinition of the common law rule of theattorney-client privilege:The privilege applies only if 1)the asserted holder of the privilegeis or sought to become aclient, 2) the person to whom thecommunication was made a) isa member of the bar of a court,or his subordinate and b) in connectionwith this communicationis acting as a lawyer, 3) the communicationrelates to a fact ofwhich the attorney has beeninformed a) by his client b) withoutthe presence of strangers c)far the purpose of securing primarilyeither i) an opinion onlaw or ii) legal services or iii) assistance in some legal proceeding,and not d) for the purpose ofcommitting a mme or tort, and4) the privilege has been a)claimed and h) not waived by[tl he rule is absolute as to communicationsmade with an attorneyas to past transactions andoffenses. . . .The purpose of it isto secure to litigant's free Mmmunicationwith their attorneysupon all matters involved in litigationand any other legitimatematters concerning which legaladvice is desired.16 (emphasisadded)However, in BaNard v. Balldrd,l7 a TexasCourt of Civil Appeals stated that ". . .before a commu~cation to an attorney isprotected it must appear that the communicationwas made by a client. . ."18in prpfessional secrecy.Ballard appears to limit the privilegeto those matters which directly pass between an attorney apd his client. However,according to M)tltzarns, the rule is tosecure aN matters mvolved in litigationor upon whlch legal advice is requested.Thus, it cp~be argued that the rule doesnot cover all situations encompassed bythe policy since matters passing from aclient to an attorney through a third party intermediary have not been held privilegedby the Texas courts.In United States v Kovel, 19 theSecond Cncuit was confronted with asituation where the defendant Kovel wasadjudged in contempt of court forrefusingto answer a question asked by the grand-.iurv. Kovel was a full time. non-iawveremployee for a law fnm, specializing inaccounting. The court recognized twoconflicting forces; the need for truth inthe fact-findim process demanded therestriction of ;he privilege, and yet anattorney should be allowed to rely uponprofes~onal agents in the preparation ofhis cases with the assurance that all workprepared for him would not be disclosedto the opposing party.20 The court heldthat statements made in confidence bythe client to agents of the attorney werepr~vileged regardless of the presence orabsence of the attorney.21 The Kovelprinciple has been held not limited solely,to cases in &ages of litiiation.z2 It hasbeen extended to protect those persons inprlvity with the attorney or client.23 andsuch communications to non-lawyeragents will fall within the scope of thep&ilege if they form links in the chain ofcommunication between the attorney andthe client.24 Further, Kovel has been extendedto experts other m n accountants;25therefore, all experts are theoreti-to justify &e expansion of this privilegeto experts. One may argue either that theexpert is merely a conduit who relates theclient's communication to the attorney,or that the expert acts as an interpreter totranslate the significance of the client'sinformation to the attorney.26Texas, however, does not appear tohave adopted any of the foregoin& viewsof the attorneyclient privilege. III Minorv. Blshop,27 a Court of Civil Appeals heldthat where statements were made to anattorney who represented two distinctparties, and they were made m 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 agentsof the attorney and not intended to beprivileged, will not be privileged. Moreimportantly, Johnson v. ~tate.28 heldthat where statements were made in ageneralconversation by the accused to hisattorney and another person, these statementswere not privileged. There, however,the relationship of the third party tothe accused or the attornev was not revealedby the Court's opiniok29Thus. although no authoritative casehas be& handed down by the Texascourts,30 an argument can be made thatthe attorney-client privilege in Texas doesextend to protect the testimony of defense-hiredexperts from discovery. If theprivilege does so extend, however, it willonly attach to the statements made bythe defendant to the expert, because. . .the protective cloak of tlus[attorney-client] privilege doesnot extend to information whichan attorney secures from a witnesswhile acting for his clientin anticipation of litigation. Nordoes the privilege concern thememoranda, briefs, communicationsand other writings prepared by counsel for his own usein prosecuting [defending] hisclient's case, and it is equally unrelatedto writings 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 defcnse-hired expert.Given the complexities in the preparationof a criminal defense, the need for a clarifiedpostion on this issue by the courtsof Texas is obvious. This IS particularlyVOICE for the DefenselApril1978
true in light of a recent statement by theSupreme Court that.As a practical matter, if the clientknows that damaging informatloncould more readily be~kpbteed from,the attorney followmgdwclosure than from himselfin the absence of disclosure,the client would be reluctant toconfide in hislawyer and it wouldbe difficult to obtain fully informedlegal advice. However,since the privilege has the effectof withholding relevant informationfrom the fact-fmder, it appliesonly where necessary toachieve its purpose. Ac~ordinglyit protects only those disclosures-necessaryto obtain informedlegal advice-which mightnot have been made absent theprivilege.32In addition, a recent case has emphasizedthe necessity of allowing "interested"third parties to sit in on otherwise confidentialcommunicatmns in the context ofaloint defense33 (by two defendants withseparate attorneys). On a policy basis, theneed for confidentiality insnch asituation1s no greater than where outside expertassistance is necessary to the preparationof the defense. Even employmg a balancingtest, as one court has suggested,34 toascertain whether the Texas courts shouldextend the privilege to include communicationsto a non-lawyer expert, the obviousnecessity of non-lawyer expert adviceoutweighs any increased burden on'. the fact-finding process.Notwithstanding this conclusion, it isunclear whether reliance upon the attorney-clientpnvdege would be successful inTexas in protecting the communicationsof defense-hired experts from prosecutorialdiscovery. Nevertheless, it shouldhe vigorously asserted.B. The Work Product DoctrineIn H~ckman v. Taylor.35 the UnitedStates Supreme Court interpreted Rule 26of the Federal Rules of Civil Procedure,and stated that an attempt. . .to seenre written statements,pirvate memoranda and personalrecollections prepared or formedby an adverse party's cowel inthe csurse of his legal duties. . .falls outside the areaof discoveryand contravenes the public polioyunderlying the orderly pprsecutionand defense of legal clams.Not even the most liberal of discoverytheories can justify unwarmntedinquiries Into the filesandthe mental impressions of an attorney.* * * * * * This workisreflected, of course, in internews,statements, memoranda,correspondence. briefs, mentalimpressions, pasonal beliefs,and countless other tawble andintangible ways-aptly thoughroughly termed. . .as the "'workproduct of the lawyer."36The work product doctrine was thus created,although it was created solely in thecontext of a civil case and was limited tomaterials prepared by the attorney himself.At first glance, it appears pecuharthat the attorney-client privilege does notpFotect the materials enumerated in H6ckman.However, the "work product doctrineis distinct from and broader thanthe attorney-client prMege."37Then, in Un6red States Y Nobles, 38th-3 Supreme Court extended the "workproduct" doctrine to criminal cases andstated that the role of the work productdoctrine. . .in assuring the proper functioningof the criminal justicesystem is even more vital. Theinterests of society and the accusedin obtaining a fair and accurateresolution of the questionof guilt or innocence demandthat adequate safeguards assurethe thorough preparation andpresentation of each side of thecase.39 cThe Court noted that both state and federalcourts had recognized the "workproduct" doctrine in criminal proceedingsand that it protected both theprosecutionand the defense.40 Of particular significancewas the Court's assertion that[olne of those realities is thatattorneys often must rely on theassistance of investigators andother agents in the compilationof materials in preparationfor trial. It is therefore necessarvthat the doctrine protectmalcriul prepared by agents torthe sttorncy as well ns those pr+pared by thc attorncy himself.Morcovcr, the coaucrw reflectedin the work pru~lu~t dwlrinc donot disappear once trial has be-Run. Disclosure of an attorney'sefforts at trial, as surely as &Fclosure during pretrial discovery,could disrupt the orderly developmentand presentation of hiscase.41Nevertheless, the Court went on tohgld that the prosecutron had a right tosee written statements made by defensewitnesses after they testify in court becausetheir testimony and reliance uponsuch statements at trial constituted awaiver of the work product priviiege.The Nobles decmion did not indicatewhether the opinion was based upon theConstitution or the Court's mherent su-pervisory power over the federal courts,It is clear that the Court's holding-thatthe lower court could properly order thedefense to disclose written statementsmade by defense witnesses after they hadtestified-was premismi on a waiver of thework product doctrine. Still, a proper inquiryis whether the Court's decision thatthe role of the work product doctrine". . in assuring the proper functioning ofthe criminal justice system is even more~ital"4~ was based on constitutionalgrounds.In an analysis of the basis for thedecision in Nobles, it may be helpful toconsider the history of the work.productdoctrine. One commentator has statedthat[tl he natural jealousy of the Iawyerfor the privacy of his file,and the court's desire to protectthe effectiveness of the lawyer'swork as the manages of litiiahon,have found expression, notonly as we have seen in the evidentialprivilege for confidentiallawyer-client communications,but in rules and practices aboutthe various forms of metrial discovery.Thus, under the chancerypractice of discovery. ..the adversarywa.; not rcquired rodisclose,apart from his own testimony,thc cv~dcncc wh~hc would use.or the names of the witnesses hewould call in support of his owncase. The same resttichon hasoften been embodied in, or readinto, the statutory discoverysystems.*3(Footnotes omitted)Also, as Wigmore has noted, the workproduct doctrine and the attorney-clientprivilege spring from the same commonlaw orim." In the United States, unlikeEneland. these conceots have been treateds&rateiy,45 although the courts havesometimes intertwined the two.46 Therefore,it would appear that the doctrine is"firmly established as a common law privilege."47Further, none of the cases to whichthe Court inNo bles referred as recognizingthe work product doctrine in criminallaw have treated the work product doctrinein constltut~onal terms. No actualauthority, therefore, exists to sustain theproposhon that the work product doctrine,as discussed in Nobles, is premisedon constrtutional grounds. Still, the NoblesCourt stated that "[tlhe interests ofsoc~ety and the accused in obtaining a fairand accurate resolution of the question ofguilt or innocence demand that adequatesafeguards assure the thorough preparationand presentation of each side of thecase."@ It may, therefore, be argued thatthis is an indication that the Court viewsAprd 1978/VOICE for the Defense
Page 4 and 5: Editor's Cornerbership on all issue
Page 6 and 7: IMINUTES OF BOARD OF DIWECTORS MEET
Page 8 and 9: PROSECUTORIAL COMPULSION OFDEFENSE-
Page 10 and 11: JOROR TELLING A FIB, AT WIR DIUE EX
Page 13 and 14: &-wThe dissenters would have held t
Page 15 and 16: As to the latter, Held: "We hold, t
Page 17: 'PROSECUTORIAL COMPULSION from p. 8
Page 21: prosecutor; there is no sdar statut
Page 24: Sharpen YourTRIAL ADVOCACY SKILLSTr

1 - Voice For The Defense Online

Create successful ePaper yourself

Delete template?

Save as template?