Can the State Call a Defense Expert Who Was Never Disclosed?
by: Abassos • December 12, 2011 • no comments
It's a defense nightmare right out of a Grisham novel: the state's surprise witness at trial is the expert the defense hired who disagrees with the defense theory. The expert never wrote a report and her existence was never disclosed to the state. But the state finds out about the expert (e.g. by scouring jail records or by pure happenstance) and realizes that if the expert was good for the defense, the expert would be on the defense witness list. So the buried defense expert is called to the stand to bury the defense.
Riddle :
If an expert originally worked for a party and can be deemed to be a representative of that party's lawyer, then OEC 503(2) extends a privilege to any confidential information or statements that the lawyer communicated to the expert, as well as to the fact of and content of the expert's confidential communications (i.e., written or oral reports) to either the client or the lawyer. However, OEC 503(2) does not render the expert per se incompetent to testify on behalf of another party about segregated information or opinions that the expert has formed without regard to any confidential communication.
In an accident reconstruction case, it's easy to see how an expert's opinion might be able to be completely segregated from any confidential information. The expert's opinion is derived from police reports, tire tracks, knowledge of the specific vehicle involved, etc..
But this is a very limited rule. I'm asked about this issue most often in the context of mental health cases. For example, can the state get at your psychologist who is pretty darn sure your client intended the crime in a case where you're going to trial on a mental state defense.
The answer is yes, but only if you call another witness to testify to the defendant's mental or emotional condition. If you don't use the mental health angle in your mental state defense, then the psychologist who disagrees with your theory will remain safely ensconced within the attorney-client privilege.
Normally when the defense hires a psychologist (or psychiatrist), there will be an evaluation of the defendant with interviews and testing that help the evaluator come to a conclusion about the mind of the defendant. I can't imagine such a situation where it would be possible to say that the expert's opinion would be formed without regard to any confidential communication. Every aspect of a psychological evaluation and report is inextricably intertwined with confidential communication.
Except when it's not. Sometimes I see defense attorneys hiring evaluators for a "records review". That means the mental health expert is reviewing medical records, police reports and State Hospital evaluations but not performing an evaluation of the defendant. The medical records might be confidential. But lets say they're not - that the defense got them through discovery. In that case, it might be true that the expert's opinion could be completely segregated from confidential information. And the fact that the defense hired the expert does not, by itself, create a 503(2) privilege that will prevent the State from using the expert against the defense, assuming worse comes to worst.
Another problem, alluded to above, is OEC 511: "Voluntary disclosure does occur, as to psychotherapists in the case of a mental or emotional condition and physicians in the case of a physical condition upon the holder's offering of any person as a witness who testifies to the condition." This rule means that you can raise the issue at trial without waiving the privilege for the undisclosed psychologist. But as soon as you call a witness, the attorney-client privilege for all psychologists is waived. The legislative commentary to OEC 511 couldn't be clearer:
Another example would be a criminal case in which defense counsel considers the use of a mental defense or partial defense. The defendant, at the request of the attorney, may see a number of psychiatrists before finding one who will testify that the defendant was suffering from a mental disease or defect at the time of the crime. If the latter testifies at trial that the defendant was not responsible, under ORE 504 there is no psychotherapist-patient privilege as to any psychotherapist because the mental condition fo the defendant is in issue. The non-testifying psychiatrists are still protected by the attorney-client privilege, however, as they are the "representatives of the lawyer" under ORE 503. The last sentence of ORE 511 would waive this (and any other) privilege to the extent of permitting the state to inquire of all medical personnel whom the defendant has seen regarding their findings.
Three lessons here:
(1) The rule from Riddle is incredibly narrow. It is very rare that a defense expert's opinion will be 100% separable from confidential communication.
(2) Don't go out of your way to create a complete separation of confidential communication from expert opinion. A "record review", for example, is an inadequate method of performing a psychological evaluation. And it just might push you squarely into the purview of Riddle.
(3) The privilege for your undisclosed expert is waived if you call another witness on the same issue at trial. So the Riddle situation with a mental health expert waives the privilege for a completely different reason than the Riddle rule.
