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PROSECUTORIAL COMPULSION OFDEFENSE-HIRED EXPERT TESTIMONYAND REPORTS*David L. Botsford*".',:..... . - ......(".. .:..,.,.. . .\-,,. :...,,. .,..': ..,,*.:...... :,:'...*..,,..,...,.,I. INTRODUCTION investigations.This article focuses upon the issue of It is equally clear that defense atwhetherthe State of Texas can compel torneys are not competent to testify as todefense-hired expert witnesses to testify conversations with or the contents of rafor the State in a criminal proceeding, ports prepared by defensehired experts.and whether the State can compel disclo- In fact, the State Bar Rules [hereinaftersure of reports prepared by suchexperts.' Rules] prohibit an attorney from know-While this inquiry will necessitate a dis- ingly revealing a confidence or secret4 ofcussion of the attorney-client privilege his client exce~t when oermitted underand the "work product" doctrine, it must the Rules or when req&ed by law oralso encompass a discussion of reciprocal court order.5discovery rights by the prosecution and Moreover, while an attorney is himthedefense and the effect of compulsory self incompetent to testify as to informadiscoveryupon a defendant's rights to tion learned within the privileged reladueprocess of law and effectiveassistance tionship with his client and is, in fact,of counsel under the Sixth and Fourteenth prohibited by the Rules from disclosingAmendments.2such informahon, he is directed to2) to withhold any testimony,information, document, or thing,3) to elude legal process sum-11. BACKGROUND . . .exercise reasonable care to moning him to testify or supplyIn order to avoid undue complexitywith potential issues of a purely evidentiarynature, I shall assume that the testimonyand/or reports desired by the prosecutorrelate both to theories advancedby the urosecution in ~rovine its case-&-chief &d theories relied up& by thedefense in presenting its defensive case.In an-examination of this issue, it isfirst appropriate to address the questionof competency of witnesses to testifyin a criminal proceeding. Article 38.06of the Texas Code of Criminal Procedure[hereinafter C.C.P.] , states that all personsare competent to testify in a criminalprosecution except insane persons andcertain children.,Specifically, Article 38.10, C.C.P.,states thatAlI other persons, except thoseenumerated in Articles 38.06,38.101, and 38.11, whatevermay be the relationship betweenthe defendant and witness, arecompetent to testify, except thatan attorney at law shall not disclosea communication made tohim by his client during the existenceof that relationship, nordisclose any other fact whichcame to the knowledge of suchattorney by reason of such relationship.Since defense-hired experts fit withinnone of the above exceptions to Article38.06, C.C.P., it is clear that defensehiredexperts are competent to testify asto information obtained through theirprevent IS employees, associatesadothers whose servicesare u ed by him from disclosingor using confidences or secretsof a client, except that alawyer may reveal the informationallowed by DR4-lOl(c)through'an employee.6Still, an attorney is prohibited by theRules from suppressmg any evidence thathe or his client has a legal obligation toreveal or produce.7Thus it seems that if a trial judge enteredan order to compel a defense-huedexpert to testify, or to disclose a reportprepared thereby,s a question wouldarise as to whether a defense attorneycould refuse to comply with the order.Althoud~ an attornev has an ethical obligationto vigorousl; assert the rights ofhis client which may require him to contestthe order,9 it can be argued that anattorney who does contest the validity ofsuch an order m a criminal proceedingcomes dangerously close to violating Section36.05(a) (2&3) of the Penal Code ifthe attorney conditions his payment ofthe expert's fee on the expert's refusal tocomply with the State's attempted dis-c $ ~ Section . 36.05(a) states that:a) A person commits an offenseif, with mtent to influence thewitness, he offers, confers, oragrees to confer any benefit on awitness or prospective witness inan official proceeding or coercesa witness or prospective witnessin an officd proceeding.evidence, . ..However, if an attorney instructed hisretained expert to testify or disclose hisreports in compliance with the order andmerely sought to contest the validity ofthe order on the basis of the legal pointsraised below in section 111, his conductwould not fall within the purview of thestatute. If, on the other hand, an attorneyInstructed his expert not to testify as ordered,such conduct might be in violationof the statute. Moreover, instructions byan attornev to alter. destrov. ..or otherwisemag unavailable reports preparedby his expert would constitute a violationof Sections 37.09, [Tampering With orFabricating Physical Evidence] and 32.47,[~raudulent ~estruction, Removal, or(Continued on p. 17)* The author would like to express hisappreciation to Ms. Leslie Benitez, BriefingAttorney for Judge Brown and JudgeDavis, Texas Court of Criminal Appeals,for her assistance in the preparation ofthis article.'*David L. Botsford, J.D., SouthernMethodist University Schoolof Law, 1977.Member, State Bar of Texas. Bnefing Attorneyfor Judge Truman Roberts, TexasCourt of Cmal Appeals, 1977-78. Thisarticle should not be construed to reflectthe official or unofficial views of any ofthe Judges of the Court of Criminal Appeals.The author encourages readers tosubmit constructive critic= of this articleto him.April 1978/VOICE for the Defense