ethical considerations in criminal defense practice, including prosecution...

With apologies to practitioners and investigators from federal and other state jurisdictions, the authorities1

cited in this article are almost exclusively references to California law.

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Ethical Considerations in Criminal Defense Practice,Including Prosecution Discovery

Michael OgulDeputy Public Defender, County of Santa Clara

[email protected](408) 299-7817

revised November 2, 2011

Introduction

There are many different aspects of criminal defense practice, and it can generally be saidthat different ethical considerations may apply to different aspects of practice but it must beemphasized that certain considerations apply throughout the case.

First, it should go without saying that, at all times, investigators and attorneys must bescrupulously honest. Second, it is fundamental that the paramount duty of criminal defenseinvestigators and attorneys is to their client. This duty requires undivided loyalty to the client. Indeed, as dictated by California law, a criminal defense lawyer has an absolute duty “[t]omaintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets,of his or her client.” (Business and Professions Code, section 6068, subd. (e).)

This duty requires the defense team to protect the confidentiality of any and allinformation obtained during the investigation of the case. For example, in People v. Collie(1981) 30 Cal.3d 43, the California Supreme Court expressed grave concern over the competencyof defense counsel where counsel acceded to a court order requiring disclosure of the statement adefense investigator obtained from a defense witness because the order was invalid under then-existing law (which was prior to the enactment of Penal Code section 1054 et. sequence). Although defense counsel must comply with certain disclosure obligations under CaliforniaPenal Code section 1054.3, counsel must also resist any other disclosure unless and until a validcourt order is issued or a compelling countervailing tactical consideration arises. While thisauthor is generally unfamiliar with disclosure obligations imposed on defense counsel in otherjurisdictions , the ethical point here remains the same: counsel must not disclose anything to the1

prosecution unless (1) such disclosure is required by the governing law in that jurisdiction or (2)there is a compelling tactical reason for the disclosure and disclosure would not violate any ruleof privilege or confidentiality.

Thus, defense disclosure obligations are at the heart of ethical considerations in criminaldefense practice. As such, this article includes a discussion of these issues.

mailto:[email protected]

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Handling Physical Evidence

Occasionally, defense investigators will uncover physical evidence. Different ethicalconsiderations govern the investigator’s handling of physical evidence depending upon whetherthe physical evidence is directly inculpatory (i.e., evidence of the crime itself), incriminating (i.e.,circumstantially tends to connect the defendant with the crime or rebut the defense claim),exculpatory (i.e., helps demonstrate defendant’s innocence or supports the defense claim), orirrelevant (i.e., apparently useless to either side in presenting the case).

The law is clear that the defense cannot interfere with the prosecution’s right to accessphysical evidence of the crime itself. Illustrative is People v. Meredith (1981) 29 Cal.3d 682,686, in which the defense investigator found the wallet which had been stolen from the murdervictim and hidden by defendant. The investigator not only found the wallet but moved it, takingit from the scene and giving it to defense counsel. Counsel then turned it over to the prosecution. The wallet was found in the first place only because the defendant described its location todefense counsel, who passed that information on to the investigator and asked him to retrieve it. At trial, the prosecution was permitted to affirmatively present the defense investigator as aprosecution witness, and to elicit his testimony identifying the location where he had found thewallet. The California Supreme Court affirmed, noting that similar decisions had been made byother courts, citing to People v. Belge (1975) 83 Misc.2d 186 [372 N.Y.S.2d 798], affirmed inPeople v. Belge (1975) 50 App.Div.2d 1088 [376 N.Y.S.2d 771]. The California Supreme Courtdefined the rule as follows: “If defense counsel leaves the evidence where he discovers it, hisobservations derived from privileged communications are insulated from revelation. If, however,counsel chooses to remove evidence to examine or test it, the original location and condition ofthat evidence loses the protection of the privilege. Applying this analysis to the present case, wehold that the trial court did not err in admitting the investigator's testimony concerning thelocation of the wallet.” (29 Cal.3d at p. 695.) (See also People v. Superior Court (Fairbank)(1987) 192 Cal.App.3d 32, 39-40.)

Although moving or altering physical evidence of a crime requires disclosure of both thephysical evidence and the location where it was obtained, the defense is allowed to keeppossession of that physical evidence for a brief period of time in order to examine it. As noted inMeredith, “[i]f the usefulness of the evidence cannot be gauged without taking possession of it,as, for example, when a ballistics or fingerprint test is required, the attorney may properly take itfor a reasonable time before turning it over to the prosecution.” (29 Cal.3d at p. 693, fn. 7.) Thus, it is permissible for the defense to obtain a forensic or laboratory analysis of the evidencebefore turning it over to the prosecution.

Different considerations may apply with regards to evidence that it is incriminating but isnot physical evidence of the crime itself. In People v. Sanchez (1994) 24 Cal.App.4th 1012, theCourt of Appeal found no error in the disclosure of incriminating letters written by defendant. The letters were found at home by defendant’s sisters, and they eventually made their way to

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defense counsel, who provided them to the court, under seal, without explanation. Once theprosecution learned that the letters were in the court’s possession, it successfully obtained themfrom the court. The court of appeal found no error, stating that defense counsel did nothing morethan he was obligated to in turning the letters over to the court. (At p. 1020.) It is important tonote, however, that there was no issue or holding concerning whether defense counsel really wasobligated to turn the letters over to the court. Instead, in holding that there was no violation ofdefendant’s Fifth Amendment privilege against self-incrimination, the court was careful to pointout that the letters were not given to the prosecution by defendant but by the court. (At p. 1025.) Thus, although Sanchez clearly stands for the rule that, once the court obtains possession ofincriminating letters written by defendant, the prosecution is entitled to obtain those letters fromthe court, it does not require defense counsel to give such letters to the court in the first place.

The Sanchez court cited People v. Superior Court (Fairbank), supra, 192 Cal.App.3d 32for its dicta that counsel was “obligated” to turn the letters over to the court. Fairbank, however,is arguably distinguishable because it involved a situation in which defense counsel was inpossession of the weapons used to commit the murder charged against defendant. As with thefruits of the murder in Meredith, the court held that, since counsel came into possession of themurder weapons, counsel was required to turn them over to the court so that the prosecutioncould obtain them. (At pp. 39-40.)

Thus, at least under California law, the rules may be summarized as follows: If defensecounsel or a defense investigator finds physical evidence that inculpates defendant, he or she hasno duty to disclose that evidence to the prosecution as long as she does not move, alter, or comeinto possession of that evidence. For example, counsel can photograph the evidence and notdisclose anything to the prosecution. However, if counsel moves, alter or take possession of theevidence, counsel must disclose both the physical item and the location where they found it to theprosecution, although the defense may first conduct an examination of the evidence, e.g., by aqualified laboratory or expert. With regards to letters or other incriminatory writings that werewritten other than to the defense team, there is no error in turning over those letters to the court,which can then disclose them to the prosecution. On the other hand, it is not clear that counselmust provide such letters to the court, and such compelled disclosure may violate the privilegeagainst self-incrimination.

Threats to Harm Others

What should defense counsel or defense investigators do if and when their client tellsthem that they want to harm another person? It must be remembered that anything a client tells amember of the defense team is generally protected by the attorney-client privilege. CaliforniaEvidence Code section 956.5 provides a limited exception “if the lawyer reasonably believes thatdisclosure of any confidential communication of a client is necessary to prevent a criminal actthat the lawyer reasonable believes is likely to result in the death of, or substantial bodily harmto, an individual.” However, the statute does not require disclosure of such communications. This point is further emphasized by Rule 3-100 of the California Rules of Professional Conduct,

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which provides in pertinent part:

“(B) A member may, but is not required to, reveal confidential informationrelating to the representation of a client to the extent that the member reasonablybelieves the disclosure is necessary to prevent a criminal act that the memberreasonably believes is likely to result in death of, or substantial bodily harm to, anindividual.

“(C) Before revealing confidential information to prevent a criminal act asprovided in paragraph (B), a member shall, if reasonable under the circumstances:

“(1) make a good faith effort to persuade the client: (i) not to commit or tocontinue the criminal act or (ii) to pursue a course of conduct that willprevent the threatened death or substantial bodily harm; or do both (i) and(ii); and

“(2) inform the client, at an appropriate time, of the member's ability ordecision to reveal information as provided in paragraph (B).

“(D) In revealing confidential information as provided in paragraph (B), themember’s disclosure must be no more than is necessary to prevent the criminalact, given the information known to the member at the time of the disclosure.

“(E) A member who does not reveal information permitted by paragraph (B) doesnot violate this rule.”

May Counsel Declare a Conflict Based on Threats of Violence Against Counsel orCounsel’s Staff?

People v. Roldan (2005) 35 Cal.4th 646, 676, a capital case, held that a defendant’sthreats of violence against his attorney does not create a conflict of interest, even where counseldeclares a conflict based on such threats, at least in the absence of any evidence that the threatshave adversely affected counsel’s quality of representation.

In addition, People v. Bolton (2008) 166 Cal.App.4th 343, 359, held that a client’s threatsagainst defense counsel’s staff is also an insufficient basis to find a conflict of interest.

What Should Counsel do if he or she Suspects the Client Wants to Commit Perjury?

The cases permit counsel to elicit the defendant’s testimony in a narrative format wherecounsel knows that the client is committing perjury. (People v. Johnson (1998) 62 Cal.App.4th608, 629.) However, it is an unmistakable sign of the attorney’s disbelief in his or her ownclient’s testimony when counsel elicits the testimony in a conspicuously narrative fashion.

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Further, People v. Bolton (2008) 166 Cal.App.4th 343, 357, held that, if counsel suspectsthat defendant will give perjured testimony, counsel is not required to have defendant testify in anarrative manner. Indeed, the appellate court quoted from People v. Riel (2000) 22 Cal.4th 1153,1217, emphasizing that even if counsel disbelieves the testimony, “‘as long as counsel has nospecific undisclosed factual knowledge of its falsity, it does not raise an ethical problem.’” Asexplained in Riel:

A “‘lawyer should not conclude that testimony is or will be false unless there is afirm factual basis for doing so. Such a basis exists when facts known to the lawyeror the client’s own statements indicate to the lawyer that the testimony or otherevidence is false.’ ... [C]ounsel’s belief in their client’s guilt certainly cannotcreate an ethical bar against introduction of exculpatory evidence.” “It is the roleof the judge or jury to determine the facts, not that of the attorney.” (Citationsomitted.)

Although attorneys may not present evidence they know to be false or assist inperpetrating known frauds on the court, they may ethically present evidence thatthey suspect, but do not personally know, is false. Criminal defense attorneyssometimes have to present evidence that is incredible and that, not being naive,they might personally disbelieve. Presenting incredible evidence may raisedifficult tactical decisions—if counsel finds evidence incredible, the fact findermay also—but, as long as counsel has no specific undisclosed factual knowledgeof its falsity, it does not raise an ethical problem.

(Riel, supra, 22 Cal.4th at p. 1217.)

Moreover, counsel’s suspicion that the client intends to commit perjury is not a validbasis to declare a conflict of interest. (Bolton, supra, 166 Cal.App.4th 343, 357.)

Disclosing Police Reports to the Client

Although the file belongs to the client and counsel is required to give the client acomplete copy of the file, upon the client’s request, upon termination of the attorney’s services,different considerations apply when a represented client wants a copy of the police report. Clearly, counsel has a duty to communicate the contents of the reports and other discovery to theclient. (See, e.g., Rule 3-500, Rules of Professional Conduct, which provides: “A member shallkeep a client reasonably informed about significant developments relating to the employment orrepresentation, including promptly complying with reasonable requests for information andcopies of significant documents when necessary to keep the client so informed.”) However,counsel is not required to give a represented client a copy of the police reports. Instead, it issufficient for counsel to review the reports with the client in person without leaving a copy with

The author is indebted to Garrick Byers of the Fresno County Public Defenders Office for2

bringing Hart to his attention.

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the client. (People v. Hart (1999) 20 Cal.4th 546, 602-604. ) In Hart, a capital case, defense2

counsel reviewed the reports with his client but refused to give him a copy because of his fears“that if read by another inmate, the reports might lead that other inmate to testify falsely againstdefendant.” (At p. 602.) The client brought a Marsden motion as a result, which was denied bythe trial court. The California Supreme Court affirmed the denial, ruling that “the trial courtreasonably concluded that trial counsel’s decision not to provide defendant with copies of thepolice reports was a tactical decision made in defendant’s best interests.” (At p. 604.) Similarly,in People v. Taylor (2010) 48 Cal.4th 574, 600, the Court likewise upheld the denial of aMarsden motion based on defense counsel’s refusal to give defendant a copy of the policereports, because “the trial court reasonably could find that counsel had properly refused toprovide defendant with the police reports in his case because of concern the documents wouldfall into the hands of a would-be jailhouse informant who might use the police reports tofabricate evidence against defendant.”

Of course, where counsel does provide the client with a copy of the reports or otherdiscovery, counsel must take great care to insure that the documents have been redacted incompliance with Penal Code section 1054.2. Specifically, subdivision (a)(1) prohibits counselfrom disclosing “the address or telephone number of a victim or witness whose name is disclosedto the attorney” through discovery to the “defendant, members of the defendant’s family, oranyone else” other than “persons employed by the attorney or to persons appointed by the courtto assist in the preparation of a defendant’s case if that disclosure is required for that preparation.Persons provided this information by an attorney shall be informed by the attorney that furtherdissemination of the information, except as provided by this section, is prohibited.” (The expressauthorization for disclosure to the attorney’s agents is codified in subdivision (a)(2).)

Utilizing the Subpoena Duces Tecum to Obtain Discovery From Third Parties

People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318-1321, upheld acapital defendant’s right to obtain discovery of documents in the possession of a third partythrough a subpoena duces tecum. More importantly, the court held that the defendant must bepermitted to demonstrate good cause in support of the subpoena by “present[ing] his relevancytheories at an in camera hearing. An in camera hearing is necessary to protect [defendant’s] FifthAmendment right against self-incrimination and Sixth Amendment right to counsel.” (At pp.1320-1321.) As observed by the court: “it would be inappropriate to give [defendant] theHobson’s choice of going forth with his discovery efforts and revealing possible defensestrategies and work product to the prosecution, or refraining from pursuing these discoverymaterials to protect his constitutional rights and prevent undesirable disclosures to hisadversary.” (Id. at p. 1321.)

Unfortunately, while affirming that, “when a defendant has issued a subpoena to a

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nonparty, the hearing at which the defense seeks to justify its entitlement to the records may beconducted in camera” (Kling v. Superior Court (2010) 50 Cal.4th 1068, 1077), the CaliforniaSupreme Court cautioned that the use of in camera hearings for the evaluation of the defendant’sshowing of good cause “should be limited to that which is necessary to safeguard the rights of thedefendant or of a third party, inasmuch as ex parte proceedings are generally disfavored becauseof their inherent deficiencies.” (At p. 1079.)

Limiting Access to Subpoenaed Documents

Often times defense counsel issues a subpoena duces tecum for documents withoutknowing what they will contain. Unfortunately, there is always a risk that the documents will notonly contain harmful information but will also end up being disclosed to the prosecution. Thus,whenever possible, counsel should try to obtain a release authorizing disclosure of theinformation and obtain the documents through the release instead of through the subpoenaprocess.

Still, there will be many, many occasions when it is impossible to get a release–forexample, a victim or victim’s family member will virtually never sign a release for thedefense–but the effective representation of defendant militates in favor of getting the recordsalthough counsel does not know what they will contain. In these situations, a subpoena ducestecum is the only chance. What, if anything, can counsel do to try to prevent against potentiallyharmful information being indirectly fed to the prosecution by a subpoena duces tecum issued bythe defense?

Counsel first needs to distinguish situations where custodians of records voluntarilyprovide courtesy copies of the subpoenaed documents to counsel from those situations where thecustodian only provides the documents to the court under seal as requested by the subpoenaduces tecum. Just as counsel cannot compel the custodian to generously provide a copy directlyto counsel, counsel also cannot prohibit the custodian from voluntarily providing an extra copy toopposing counsel, at least where there is no cognizable privacy interest in the records at issue. Moreover, under Department of Corrections v. Superior Court (Ayala) (1988) 199 Cal.App.3d1087, 1095, defendant cannot obtain a court order prohibiting the custodian from voluntarilyproviding a copy to the prosecution, even where the custodian is the Department of Corrections. Thus, the only thing defense counsel can do to try to prevent the custodian from voluntarilyproviding a copy to the prosecution is to thoroughly explain to the custodian that the subpoenaonly requires that the documents must be provided to the court, under seal, and that counsel hasno authority to require a copy to be delivered to counsel. Generally speaking, civilians andprivate enterprises that are not aligned with the prosecution will not voluntarily initiate provisionof an extra copy to the prosecution, especially once they receive the foregoing explanation. Onthe other hand, law enforcement agencies are predisposed to routinely provide the prosecutionwith a copy of any documents that have been subpoenaed by the defense.

On the other hand, the prosecution is not entitled to obtain a copy of the subpoenaed

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documents from the court or defendant unless and until defendant decides to present them inevidence. (Kling v. Superior Court, supra, 50 Cal.4th 1068, 1077.) In Teal v. Superior Court(2004) 117 Cal.App.4th 488, the court of appeal held that the trial court acted improperly indirecting defendant to provide to the prosecution a copy of police department records concerningprosecution witnesses which defendant had lawfully obtained directly from the police departmentthrough a subpoena duces tecum. Instead, the Teal court held that defendant cannot be requiredto disclose the subpoenaed documents unless and until he intends to present those documents inevidence or to present the testimony of witnesses disclosed in the documents. Similarly, Alfordv. Superior Court (2003) 29 Cal.4th 1033, 1046, specifically holds that the prosecution is notentitled to a copy of any peace officer personnel records which defendant has successfullyobtained through the litigation of a Pitchess motion. (Cf. Becerrada v. Superior Court (2005)131 Cal.App.4th 409, 415, which allows a trial court to disclose peace officer personnel recordsto the same officers whose records have been disclosed to defendant pursuant to Evidence Codesection 1043.) Further, Penal Code section 1326, subdivision (c), provides that:

When a defendant has issued a subpoena to a person or entity that is not a partyfor the production of books, papers, documents, or records, or copies thereof, thecourt may order an in camera hearing to determine whether or not the defense isentitled to receive the documents. The court may not order the documentsdisclosed to the prosecution except as required by Section 1054.3.

Although the prosecution cannot obtain a copy of the subpoenaed documents from thecourt or defendant until defendant intends to present them in evidence, the recent decision Klinghighlights the pitfalls for counsel using the SDT process. Kling holds that the prosecution “maytypically” be entitled to disclosure of “the identity of the subpoenaed party and the nature of thedocuments sought”, “including the identify of the person to whom the documents pertain . . . .” (Emphasis added.) “The constitutional rights of the defendant can usually be protected byredacting those materials that disclose privileged information or attorney work product, byconducting portions of the in camera hearing ex parte, and by withholding disclosure to theprosecution of the records produced under the subpoena until the defense has determined that itintends to offer them in evidence at trial.” (Emphasis added.) “A trial court’s role whenpresented with materials produced under a defense subpoena duces tecum to a third party, then, isto balance the People’s right to due process and a meaningful opportunity to effectively challengethe discovery request against the defendant’s constitutional rights and the need to protect defensecounsel’s work product. The trial court ‘is not “bound by defendant’s naked claim ofconfidentiality’” but should, in light of all the facts and circumstances, make such orders as areappropriate to ensure that the maximum amount of information, consistent with protection of thedefendant's constitutional rights, is made available to the party opposing the motion fordiscovery.” Otherwise, the Supreme Court offered little sympathy for defense counsel’s concernabout being forced to alert the prosecution to potentially damaging evidence: “It is true thatallowing the prosecution to learn that certain records have been subpoenaed from a third partymay cause the defense to face the ‘difficult decision whether to subpoena the records and run therisk of bringing possibly adverse information to the attention of the prosecutor or to forgo

Proposition 9 added new subdivision (c)(1) to Article I, section 28 of the California3

Constitution. The new provision provides that the “victim, the retained attorney of a victim, alawful representative of the victim, or the prosecuting attorney upon request of the victim, mayenforce the rights enumerated in subdivision (b) in any trial or appellate court . . . .” Newsubdivision (b)(4), in turn, gives “victims” the right “[t]o prevent the disclosure of confidentialinformation or records to the defendant, the defendant’s attorney, or any other person acting onbehalf of the defendant, which could be used to locate or harass the victim or the victim’s familyor which disclose confidential communications made in the course of medical or counselingtreatment, or which are otherwise privileged or confidential by law.” Together, these provisionsappear to provide the prosecution with the potential to assert standing to represent a third partyvictim in discovery proceedings under the specified circumstances. Further, People v. SuperiorCourt (Humberto S.) (2008) 43 Cal.4th 737, 750, holds that a trial court is permitted to entertainargument from the prosecution concerning whether or not a defendant should be entitled toobtain third party discovery through a subpoena duces tecum.

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seeking information that could be beneficial to his defense. However difficult that decision maybe, we do not see it as impairing the policies behind [a defendant's] right to counsel.’”

The court further observed that the prosecution generally has “the right to file a motion toquash ‘so that evidentiary privileges are not sacrificed just because the subpoena recipient lackssufficient self-interest to object’”, and that, although Marsy’s Law (Cal. Const., art. I, § 28,subds. (b)(4), (c)(1) was not at issue in Kling, “a victim’s right to notice of a third party subpoenawould be consistent with the presumption that court proceedings are open and with theprosecution’s right to due process.”3

It is incumbent on defense counsel to distinguish and limit Kling whenever thesubpoenaed documents pertain to the defendant, are sought as the result of confidentialinformation provided by the client, or otherwise involve privileged information. The holding inKling was careful to use qualifiers such as the defendant’s constitutional rights “can usually beprotected”, and the prosecution “may typically” be entitled to disclosure of the identity andnature of the subpoenaed records. However, the ex parte procedure will be insufficient to protectdefendant’s constitutional rights if the records pertain to the defendant, and/or they weresubpoenaed on the basis of confidential information revealed by the defendant to his/her attorney. In those circumstances, the mere revelation of the subpoenaed party’s identity, the nature of thesubpoenaed documents, or the person to whom the documents pertain, will disclose privilegedcommunications. Thus, in these and other circumstances involving privileged communications(e.g., medical or marital privileges), defense counsel must vigorously fight to distinguish Klingand prevent disclosure of anything, including the mere identity of the subpoenaed party or natureof the subpoenaed records.

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Finally, to the extent that the prosecution learns what the defense has subpoenaed as aresult of the disclosures required by Kling, and the prosecution then subpoenas the sameinformation, any prosecution attempts to affirmatively use that information at trial should be metby motions to exclude such evidence as the fruits of compelled disclosures from the defense. (See, Kastigar v. United States (1972) 406 U.S. 441.)

Where counsel does obtain subpoenaed documents from the court pursuant to a subpoenaduces tecum, counsel must take care to ensure that the original documents are kept in thepossession of the court clerk at all times if defendant later hopes to introduce the records inevidence through Evidence Code sections 1560-1562.) Note that subdivision (d) of Penal Codesection 1326 provides that, “This section shall not be construed to prohibit obtaining books,papers, documents, or records with the consent of the person to whom the books, papers,documents, or records relate.” Thus, the custodian of records is authorized to provide a courtesycopy to defense counsel with the consent of the person who is the subject of the documents.

Special Warning About Mental Health Information Concerning Prosecution Witnesses

Beware of Susan S. v. Israels (1997) 55 Cal.App.4th 1290, in which the court of appealheld that criminal defense counsel could be sued for invasion of privacy where he had read thecomplainant’s privileged mental health records and forwarded them to a defense expert after thecustodian of records had mistakenly provided them to defense counsel in response to defendant’ssubpoena duces tecum. Thus, defense counsel must be sure not to read or disseminate anyprivileged mental health records concerning any witness without first obtaining a court orderpermitting such review or a waiver of the privilege. As long as defense counsel obtains thedocuments through a proper court order (i.e., the documents are subpoenaed to court and the trialcourt orders their release to defense counsel, with an awareness of the relevant legal standards fordisclosure), then there is no basis for a lawsuit against defense counsel. (Mansell v. Otto (2003)108 Cal.App.4th 265.)

Debriefing Jurors

It is often necessary to attempt to interview jurors after they have reached their verdict. Inmaking these efforts it is vital to act with care and scrupulously follow the requirements ofCalifornia Code of Civil Procedure section 206 and Townsel v. Superior Court (1999) 20 Cal.4th1084.

Defense counsel or an investigator may approach any juror after the jury is dischargedand discuss the case with the juror as long as “the juror consents to the discussion and . . . thediscussion takes place at a reasonable time and place.” (Code Civ. Proc. § 206, subd. (b).) Once24 hours have elapsed since the verdict was returned, any approach requires, in addition, that therepresentative identify the case they wish to discuss, the party they represent, the subject of theinterview, the juror’s “absolute right . . . to discuss or not discuss the deliberations or theverdict”, “and the juror’s right to review and have a copy of any declaration filed with the court.

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(Code Civ. Proc. § 206, subd. (c).) Failure to comply with these provisions is subject tosanctions.

In attempting to contact jurors after they have left the courthouse following theirdeliberations, the defense must attempt to locate jurors without the court’s assistance. Althoughit is possible to petition the court for juror identifying information pursuant to Code of CivilProcedure section 237, it is generally best to avoid asking for such information unless the defensehas no other information with which to try to locate the juror because (1) as a practical matter,trial courts are predisposed against disclosing such identifying information; and (2) it gives thetrial court an opportunity to prohibit counsel from contacting any jurors with or without theprovision of such identifying information. Instructive is Townsel v. Superior Court, supra, 20Cal.4th 1084, in which the California Supreme Court upheld a trial court order prohibiting thedefense from even contacting any juror without first obtaining the approval of the court. Although Townsel was a post-conviction case in which appellate counsel sought to interview thejurors more than 10 years after their verdict, it certainly signals trial judges that they have theauthority to prohibit contact with jurors unless the defense can demonstrate that such aprohibition would be an abuse of discretion. Moreover, given the protracted and time consuminglitigation that would be required to reverse such a prohibitive order, it is simply the wiser coursenot to approach a trial court for permission with respect to any jury debriefing issues unless it isabsolutely necessary.

Post-conviction Disclosures of Privileged Matter and Claims of Ineffective Assistance ofCounsel

Prosecutors like to seize on a defendant’s post-conviction claims of ineffective assistanceof counsel as constituting a waiver of the attorney-client privilege, and too many defense counselaccept such claims as a reason to defend the quality of their representation at trial by cooperatingwith the prosecution on appeal or in post-conviction proceedings. However, while a post-conviction petition for writ of habeas corpus raising claims of ineffective assistance of counselwill constitute an implied waiver of the attorney-client privilege, the waiver is limited to theextent necessary to litigate the claim. (See, Osband v. Woodford (9 Cir. 2002) 290 F.3d 1036,th

observing that “a petitioner in a habeas corpus action who raises a Sixth Amendment claim ofineffective assistance of counsel waives the attorney-client privilege as to the matters challenged. . . .” See, also, Bittaker v. Woodford (9 Cir. 2003) 331 F.3d 715, holding that the impliedth

waiver must be limited to “no broader than needed to ensure the fairness of the [habeas]proceedings” on the ineffective assistance of counsel claim, citing United States v. Amlani (9thCir. 1999) 169 F.3d 1189, 1196, which held that “only those documents or portions of documentsrelating to the” claim asserted by the former client should be disclosed.)

Moreover, although the implied waiver will allow the attorney general–i.e., theprosecution’s post-conviction attorney–limited access to materials and information otherwiseprotected by the attorney-client privilege, the attorney general is prohibited from using thematerials for any purpose other than litigating the habeas corpus petition and is not permitted to

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share the information with any other persons or agencies, including other law enforcementagencies or the trial prosecutor, even in the event of a retrial. (Bittaker v. Woodford, supra, 331F.3d 715.)

Further, just as the attorney general is not allowed to disclose such information to anyoneelse, former trial counsel must continue to protect the confidentiality of the privileged material asagainst anyone except the attorney general. Indeed, former trial counsel should never discloseany such information even to the attorney general, even when challenged concerning theeffectiveness of their representation, except when absolutely required to by a valid court order. Although Wharton v. Calderon (9 Cir. 1997) 127 F.3d 1201, reversed a District Court orderth

prohibiting the prosecution from communicating with former trial counsel except at a depositionat which the defendant’s post-conviction counsel was present, no court can order former counselto communicate with the prosecution, even when an ineffective assistance of counsel claim israised on appeal, and the overriding duty of a criminal defense lawyer “to maintain inviolate theconfidence, and at every peril to himself or herself to preserve the secrets, of his or her client”(Business and Professions Code section 6068(e)) leaves no doubt that counsel’s overridingpriority must be his or her former client, not a desire to vindicate his or her performance at trial. Moreover, the ABA formal ethics opinion 10-456, “Disclosure of Information To ProsecutorWhen Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim,” published bythe ABA Standing Committee on Ethics and Professional Responsibility on June 14, 2010,specifically observes that “it is highly unlikely that a disclosure in response to a prosecutionrequest, prior to a court-supervised response by way of testimony or otherwise, will bejustifiable.”

The duty of counsel to assert the sanctity of the attorney–client privilege in thesesituations, even after litigation of an ineffective assistance of counsel claim, was made even moreclear by People v. Ledesma (II) (2006) 39 Cal.4th 641, 694-695, which held that defendant’sstatements to a defense psychiatrist, which were made during “a confidential interview ofdefendant for the purpose of assisting defense counsel in the preparation and presentation of adefense,” remained protected by the attorney-client privilege even after the psychotherapist-privilege had been waived once defendant had placed his mental and emotional state in issue bypresenting the testimony of other mental health experts at trial. Ledesma further held that theattorney–client privilege was not waived at defendant’s retrial although defendant had previouslybrought a habeas challenge on grounds of ineffective assistance of counsel. Under EvidenceCode section 958, there is an exception to the attorney-client privilege to the extent thecommunications are relevant to a claim of breach of duty by the attorney, including habeasproceedings alleging ineffective assistance of counsel. However, the statute “establishes anexception to the privilege, not a waiver.” (Id. at p. 691.) Since defendant asserted the privilegein the intervening habeas proceedings, the privilege continued to exist at the subsequent retrialalthough the exception applied at the habeas proceedings. “[T]he attorney-client privilegecontinues to apply for purposes of retrial after otherwise privileged matters have been disclosedin connection with habeas corpus proceedings, under Evidence Code section 958.” (Id. at p.695.)

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Prosecution Discovery from the Defense in General

Under Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11, defendant mustdisclose the names and reported relevant statements of any witness he or she “reasonablyanticipates [he or she] is likely to call” at trial. The crucial limitations here are that there is nodisclosure requirement (1) except regarding a witness defendant “reasonably anticipates [he orshe] is likely to call” and (2) even then, defendant is required to disclose only the “relevant”statements which have been reported.

Reported statements include any notes describing the statements of a witness (Thompsonv. Superior Court (1997) 53 Cal.App.4th 480, 483, 488), but not core work product reflecting theinterviewer’s impressions or evaluations of the witness (Penal Code section 1054.6; Code ofCivil Procedure section 2018(c)). On the other hand, there is no duty to take any notes or obtaina report in the first place (In re Littlefield (1993) 5 Cal.4th 122, 136), although counsel is nowrequired to disclose the oral reports of relevant statements whom counsel will be present at trial(Roland v. Superior Court (2004) 124 Cal.App.4th 154, 166-168.) Thus, more than ever, counselshould be very careful before determining not to take notes or memorialize a statement. Theseconsiderations are discussed more fully below, under Should the Defense Document theStatements of Penalty Phase Witnesses?, post, pp. 6-9.

Real Evidence

Defendant must also disclose any “real evidence” he or she intends to present at trial. (Penal Code section 1054.3(b).) Although “real evidence” is not defined by the discovery statute,it seems reasonable to define it as including any tangible thing which is capable of being markedas an exhibit. It must be emphasized, however, that defendant has a much more limited duty ofdisclosure regarding “real evidence” than does the prosecution. In stark contrast to section1054.3(b), Penal Code section 1054.1(c) requires the prosecution to disclose any relevant realevidence obtained by the prosecution at any time in the investigation of the offense chargedagainst defendant, regardless of whether the prosecution contemplates introducing such evidenceat trial.

Defendant does Not have to Disclose Information or Statements Obtained from ProsecutionWitnesses Intended for Use on Cross-Examination

Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn. 14, specifically holds that: “thedefense is not required to disclose any statements it obtains from prosecution witnesses that itmay use to refute the prosecution’s case during cross-examination.” The foregoing holding wasconfirmed by the Supreme Court on September 23, 1998, when it remanded Hubbard v. SuperiorCourt (1997) 66 Cal.App.4th 1163, to the court of appeal and ordered that the opinion berepublished (Supreme Court no. S060927); the republished opinion in Hubbard relied on Izazagaand squarely held that the trial court exceeded its authority in ordering defendant to disclose the

While dicta in Sanders, supra, 11 Cal.4th at p. 520, fn. 11, states that defendant would be required to4

disclose the tape if the trial occurred after the enactment of Proposition 115, such dicta is inconsistent with the

holdings of the Supreme Court in Izazaga v. Superior Court, supra, 54 Cal.3d 356, 376, fn. 14, People v. Tillis,

supra, 18 Cal.4th 284, 292, and the Supreme Court’s republication of Hubbard v. Superior Court, supra, 66

Cal.App.4th 1163, 1167-1170, ordered republished on September 23, 1998. Further, the Sanders’s dicta is not

controlling because “‘an opinion is not authority for a proposition not therein considered.’” (People v. Donaldson

(1995) 36 Cal.App.4th 532, 528, quoting from Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

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statement he had obtained from a prosecution witness which he intended to use on cross-examination of the witness. (66 Cal.App.4th 1163, 1167-1170.)

On the other hand, counsel must remember that Penal Code section 1054.3(b) requiresdefendant to disclose any “real evidence which the defendant intends to offer in evidence at thetrial.” Thus, defendant must disclose any such evidence which the defense intends to offer inevidence during cross-examination of a prosecution witness.

As noted above, defendant must be careful not to disclose more than required by the law,at least not without a compelling tactical reason, and it must be emphasized that neither thedefense nor the prosecution may be required to disclose any statement it obtains from any witnessunless it is the party who presents the testimony of that witness. (Cf. the prosecution mustdisclose the statements of all defendants, and all exculpatory information, material or not,regardless of whether or not it calls these witnesses.)

As also noted above, Izazaga v. Superior Court, supra, 54 Cal.3d 356, 376, fn. 14, andHubbard v. Superior Court, supra, 66 Cal.App.4th 1163, specifically held that the defense is notrequired to disclose any statements it obtains from witnesses who are called by the prosecution. Moreover, People v. Tillis (1998) 18 Cal.4th 284, 292, holds that no party is required to discloseinformation it will use on cross-examination. Thus, defendant is not required to disclose anyinformation or statements the defense has gathered for use on cross-examination of prosecutionwitnesses. For example, where defendant obtains a tape recorded statement from a prosecutionwitness and then cross-examines the witness based on prior inconsistent statements contained onthe tape, the prosecution is not entitled to discovery of the tape. Further, where the impeachmentdoes not involve actually playing the tape or showing the tape or transcript to any witness, theprosecution should not be allowed to review the tape or transcript under Evidence Code section356. (People v. Sanders (1995) 11 Cal.4th 475, 519-520. ) Instead, the statute only permits the4

prosecution to elicit testimony about the relevant portion of the prior inconsistent statement. Ofcourse, where a witness (either the prosecution witness or the defense investigator who istestifying to the prior inconsistent statement) refreshes his or her recollection by reviewing thetape recorded statement or transcript, the opposing party is entitled to review the same matterpursuant to Evidence Code section 771(a).

What about witnesses who are considered potential prosecution witnesses but end up notbeing called by the prosecution? As long as defendant has a good faith belief that a particularwitness will be called by the prosecution (e.g., the witness has been included on the prosecution’s

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witness list or the witness was identified in police reports disclosed by the prosecution and theprosecution has not expressly stated that it will not present the witness at trial), then defendantdoes not “reasonably anticipate it is likely” that she or he will call the witness to testify and,therefore, has no obligation to disclose anything concerning that witness. (Izazaga v. SuperiorCourt, supra, 54 Cal.3d 356, 376, fn. 11.) Once the prosecution has unequivocally stated that itwill not call the witness to testify, however, defendant must disclose his or her intentions to callthe witness, including the witness’s address and any reports of the relevant statements obtainedfrom the witness, if defendant does, in fact, intend to call the witness and has the witness readyand available to testify (i.e., the witness has been subpoenaed or defendant is otherwise assuredthat the witness will appear, and defendant has evaluated the witness sufficiently to be reasonablycertain that she or he will actually call the witness to testify).

Disclosure of Impeachment Witnesses and Exhibits

The same principles should control the determination of whether or not to discloseimpeachment or rebuttal witnesses, or real evidence–i.e., exhibits–to be used for impeachment. That is, as long as defense counsel has a good faith belief that it may not be necessary to presentthe impeachment or rebuttal witness, or to confront the prosecution witness with the potentialexhibit, then there is no requirement of disclosure. However, once the decision has been made toeffect the impeachment, disclosure cannot be delayed. For example, if counsel has animpeachment witness ready to testify to the prosecution witness’ prior inconsistent statement,counsel must disclose the identity of the impeachment witness, as well as any report, oral orwritten, of the relevant statement obtained from the impeachment witness, once the prosecutionwitness has affirmatively denied making the prior inconsistent statement, or counsel hasotherwise determined to present the impeachment witness. (Note that Evidence Code sections1235 and 770 require, as a foundational matter, that the declarant witness must have beenconfronted with the prior inconsistent statement or excused subject to recall before independentevidence of the prior inconsistent statement is admissible.) Likewise, once the prosecutionwitness has, on cross-examination, continued to deny the facts which will be impeached by thepotential defense exhibit, defense counsel must disclose the material to the prosecution beforemarking it for identification or confronting the witness with the exhibit. (This should be doneoutside the jury’s presence, ideally during a break in the cross-examination.)

Prosecution Discovery from the Defense Regarding Penalty Phase

People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1231, holds that the reciprocaldiscovery provisions enacted by Proposition 115 in Penal Code § 1054 et seq. apply to penaltyphase evidence, requiring defendant to disclose mitigation evidence “at least 30 days prior to thecommencement of the guilt phase of the trial, but . . . trial courts are empowered to exercisediscretion in an appropriate case to defer disclosure of all or part of the defendant’s penalty phaseevidence until the guilt phase has been completed.”

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Thus, defendant must always disclose true mitigation witnesses whom the prosecutionhas no intentions of presenting, such as family members, defense experts, former employers,classmates, friends, fellow prisoners, etc. Disclosure is required of the witness’s name andaddress, although a protective order could be sought in certain circumstances. (See, Penal Codesection 1054.7.) The prosecution is also entitled to the “reports” of the “relevant” statements ofthe witness.

However, People v. Superior Court (Mitchell), supra, 5 Cal.4th 1229, allows a defendantto seek a protective order in an attempt to defer disclosure until after the completion of the guiltphase if defendant can persuade the trial court, in camera, that pretrial disclosure will prejudicedefendant at guilt phase. As specifically held in Mitchell at page 1239:

given a showing that such a continuance is appropriate (based on suchconsiderations as the probable duration of the guilt phase, the likelihood that aguilty verdict, with special circumstances, will be returned, and the potentialadverse effect disclosure could have on the guilt phase defense), trial courtspossess discretion to defer penalty phase discovery by the prosecution until theguilt phase has concluded. On request, the court may permit such showing to bemade in camera.

Defendant should assert potential prejudice anytime she or he can articulate how theprosecution might attempt to use the discovered information against defendant at guilt phase,asserting the independent state and federal constitutional guarantees to the privilege against self-incrimination, the attorney-client privilege and the effective assistance of counsel, due process oflaw, and the work product doctrine.

Moreover, where defendant is concerned that the prosecution may have utilized thedisclosed evidence to uncover other evidence which it then seeks to offer in its case-in-chief atpenalty phase, defendant should consider a motion ingeniously developed by retired DeputyPublic Defender Kevin Phillips of the Orange County Public Defender’s Office based onKastigar v. United States (1972) 406 U.S. 441, 460, which holds that the Fifth Amendment’sprotection against self-incrimination prohibits the prosecution from using “any evidenceobtained by focusing investigation on a witness as a result of his compelled disclosures.” (Emphasis added.) Thus, where defendant has disclosed evidence which he or she intends topresent at penalty phase, and then the prosecution’s investigation of defendant based on thesedisclosures has developed aggravation evidence which the prosecution seeks to present in itscase-in-chief, defendant should move to preclude such aggravation under Kastigar. Moreover,Kastigar motions are not limited to penalty phase evidence. Instead, the defense should bring themotion anytime it believes the evidence proffered by the prosecution in its case in chief at anystage of the trial was derived from compelled disclosures from the defense.

In addition, Penal Code section 1054.7 itself provides the trial court with authority tolimit disclosure when necessary to prevent threats or possible danger to witnesses. Thus,

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defendant should seek protective orders whenever necessary to protect against the danger that theprosecution will intimidate a defense witness from testifying.

The rationale underlying the requirement that defendant must disclose his or herwitnesses to the prosecution (at least, the rationale that could survive constitutional scrutiny, asopposed to the improper purposes of allowing the prosecution to intimidate defense witnessesand dissuade them from testifying) is to facilitate the search for truth by preventing theprosecution from being taken by surprise, and to enable the prosecution to be ready to cross-examine defense witnesses without the need for a continuance. (See, e.g., In re Littlefield (1993)5 Cal.4th 122, 130-131; Roland v. Superior Court, supra, 124 Cal.App.4th 154, 166-168.) Thesegoals are satisfied where the prosecution has the discovery in sufficient time before the witnesstestifies so that it knows what to expect and can prepare to confront the witness on cross-examination. By contrast, these goals are not furthered by allowing the prosecution to usepenalty phase discovery at any time in guilt phase or its case-in-chief at penalty phase. To thecontrary, allowing the prosecution to use penalty phase discovery at these times would enable theprosecution to affirmatively use such evidence as a sword against defendant, in violation of theconstitutional prohibitions against compelled disclosure of any evidence which couldconceivably be used to lessen the prosecution’s burden of proof.

No reported California decision has upheld compelled disclosure of discovery by thedefense to the prosecution for the purpose of allowing the prosecution to present the evidence inits case in chief. Izazaga v. Superior Court, supra, 54 Cal.3d 356, upheld prosecution rights toobtain discovery of witnesses and witness statements where the defendant reasonably anticipateshe or she is likely to present such witnesses at trial. Williams v. Florida (1970) 399 U.S. 78, 81,[26 L.Ed.2d 446, 90 S.Ct.1893], upheld a requirement that a defendant provide disclosure of hisor her intentions to present an alibi defense at trial, including “the names and addresses of adefendant’s alibi witnesses . . . .” (Id. at p. 85.) Neither these cases nor any others, however,support the notion that a defendant can be forced to provide discovery of evidence obtained bydefendant so that the prosecution may then use that evidence in its case in chief to convictdefendant or sentence defendant to death.

Indeed, there are several decisions which expressly prohibit such compelled discovery. Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326, held that a defendant’s constitutionalrights to the privilege against self-incrimination prohibited disclosure of information which“conceivably might lighten the prosecution’s burden of proving its case in chief.” The courtfurther held that “the privilege forbids compelled disclosures which could serve as a ‘link in achain’ of evidence tending to establish guilt of a criminal offense . . . .” (Ibid.) These holdingswere affirmed and quoted with approval in People v. Collie (1981) 30 Cal.3d 43, at page 51. They have never been overruled. Although Proposition 115 enacted Penal Code sections 1054et. sequence and amended section 30 of Article I of the California Constitution to provide certainreciprocal discovery rights, the limited scope of such reciprocal discovery does not affect thevitality of the foregoing holdings quoted from Prudhomme and Collie. Rather, the concernsraised in Prudhomme and Collie were echoed by the concurring opinion of Justice Kennard in

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Izazaga v. Superior Court, supra, 54 Cal.3d 356, at p. 386, where she reminded that “it would beimpermissible for the prosecution to use, as part of its case-in-chief, evidence gained throughdiscovery” from the defendant.

Should the Defense Document the Statements of Penalty Phase or Other Witnesses?

Obviously, no party may be required to document the results of an interview with awitness (see In re Littlefield, supra, 5 Cal.4th 122, 136; cf. the prosecution’s obligation underPenal Code § 1054.1(b) to disclose all statements made by any defendant or codefendant,whether or not they have been recorded). However, under Roland v. Superior Court, supra, 124Cal.App.4th 154, 166-168, the defense must disclose the oral reports of the relevant statementsof defense witnesses, regardless of whether defense counsel personally interviewed the witness orthe defense investigator orally reported the contents of his or her interview of the witness,whether or not any notes or other documentation of the interview were created or preserved. Thus, Roland adds an additional consideration in evaluating whether or not to document thestatements of defense witnesses.

Several factors must be considered in evaluating whether or not to document thestatements obtained from defense witnesses, and, if so, how to document those statements. Fundamentally, it must be remembered that where the defense investigator does not take anynotes or otherwise document the witness’s statement in any way, the failure to document thesubstance of the interview will create substantial problems in attempting to impeach the witnesswith his or her prior inconsistent statement to the defense. (See, e.g., In re Johnson (1998) 18Cal.4th 447, 464 [noting that “[t]he investigators fail[ure] to take any notes of [their interviewwith the witness] raises questions about the weight to be given their testimony.”) Also, aspointed out by Charles M. Sevilla, Maniscalco v. Superior Court (1991) 234 Cal.App.3d 846,850, fn. 9, laments:

that a defense attorney in a capital case would confide her client’s life to her ownimperfect and mortal memory is truly astonishing (even during a period when thedistrict attorneys’ lobby has sought and obtained several victories in a relentlesseffort to expand discovery for prosecutors). Moreover, when an attorneyinterviews someone alone without a tape recorder, she is in the intolerableposition of being unable to impeach the witness without facing potential recusal. Thus, [defense counsel] appears to have unconscionably risked [defendant’s]defense and the public’s investment in her efforts.

(See, also, People v. Jackson (1986) 187 Cal.App.3d 499, 509, observing that it was certainlypreferable “to have a third party present if the lawyer conducts an interview with a prospectivewitness, to obtain a written statement from the witness or have an investigator interview thewitness, in order to facilitate effective impeachment with prior inconsistent statements should theneed arise.” Indeed, the court agreed that defense counsel was arguably incompetent in failing totake such measures before personally interviewing an identification witness who was the

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girlfriend of the prosecution witness who had identified defendant as the perpetrator; after thegirlfriend was called as a defense witness but proceeded to also identify defendant, counselunsuccessfully attempted to impeach her with her previous oral statements to counsel, who hadinterviewed her in court during a recess.)

Other problems which will result from the lack of documentation will include theinability to recollect the detailed facts described by the witness, which may impair the ability ofthe attorney to elicit the important details at trial or make it extremely difficult for a new attorneysubsequently assigned to the case to learn the specific details of the witness’s statement.

These problems, however, may be surmountable in certain situations. Consider a puredefense witness who is being counted on to testify favorably to the defense, such as a familymember or close friend. Frequently, impeachment of such a witness with a prior inconsistentstatement to a defense investigator will not be persuasive. If the close friend or loving relativegoes sideways in front of the jury, the jury will likely conclude that the previous favorablestatement to the investigator was influenced by the witness’s relationship to defendant, coloredby rose-tinted glasses and a desire to be perceived as supportive of defendant, whereas thewitness’s testimony at trial is more objective and truthful. Further, while some documentation ofthe witness’s statement will assist counsel in recollecting the details described by the witness,counsel should be able to familiarize himself or herself with all pertinent and impertinent detailsby meeting with the witness personally and thoroughly reviewing the subject matter.

On some occasions, the attorney may prefer to interview the witness, either in thepresence or absence of an investigator, which may eliminate the need for any report of theinterview. Counsel must be mindful, however, that any notes taken by the attorney which merelydescribe the witness’s statement must be disclosed. (Thompson v. Superior Court, supra, 53Cal.App.4th 480, 483, 488.) By contrast, work product is not discoverable. (Penal Code section1054.6; Code of Civil Procedure section 2018.030, subd. (a).) Thus, neither an attorney’s orinvestigator’s notes are discoverable to the extent they reflect their impressions of the witness,evaluations of his or her credibility, an analysis of the positive and negative considerations indetermining whether or not to call the witness, or investigative leads developed from the witness. (Code of Civil Procedure section 2018.030, subd. (a).) In addition, Rico v. Mitsubishi MotorsCorporation (2007) 42 Cal.4th 807, 814, holds that, “When a witness’s statement and theattorney’s impressions are inextricably intertwined, the work product doctrine provides thatabsolute protection is afforded to all of the attorney’s notes.”

Where the interview is reported, care should be exercised in choosing the particularmethod by which to report the witness’s statement. There are several different methods ofreporting or documenting a witness’ statement, including oral reports, written reports, writtenstatements signed by the witness, tape recorded interviews, and reports confined to specificsubjects. Each of these methods have relative advantages. Tape recorded statements are themost accurate method of documenting exactly what the witness is stating, and will also illustratewhether or not the interviewer has influenced the statement. On the other hand, it may be

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difficult to confine the scope of a tape recorded interview to a particular subject, and disclosureof the tape may educate the prosecution to information which is not only irrelevant to theproffered testimony of the witness but damaging to defendant in other areas. Still, where thewitness is typecast as a neutral witness on a key point (e.g., other violent criminal activity underfactor (b)), tape recording is most preferred: if the statement proves to be helpful to the defense,the tape recording will be the most powerful form of impeachment should the witness testifyinconsistently at trial; if the statement is not helpful, the defense will not call the witness andneither the witness nor the prosecution will be entitled to discovery of the tape.

Written statements signed by the witness share similar advantages, including constitutinga persuasive form of impeachment. Further, written statements may be confined to specificsubjects after interviewing the witness more generally before determining to report the interview. (Indeed, as routinely demonstrated by many police departments, it is also possible to confine thescope of a tape recorded statement by first interviewing the witness off tape, then discussing onlycertain subjects on tape.) However, witnesses may refuse to be interviewed on tape or to sign awritten statement. In these circumstances, the most thorough reporting method that can beundertaken is the “ordinary” report in which the investigator documents everything the witnesssays. The ability to impeach the witness at trial is dependent on having an investigator presentduring these interviews and either writing the report or immediately confirming the completeaccuracy of the entire report if it is written by someone else. (The investigator will be mostcomfortable, and more persuasive as a witness, where she or he writes the report.) Impeachmentby reference to these reports will also prove to be more persuasive where the jury learns that theonly reason the report was written by the investigator was because the witness refused to beinterviewed on tape or sign a written statement, leaving the report as the only option.

A final concern with written reports is whether to limit them to particular topics. Manytimes, defendant will present a witness to testify only on a particular topic. Since Penal Codesection 1054.3 entitles the prosecution only to the “relevant” statements of the witness,disclosure should be required only of those portions of the statement which are relevant to thetestimony of the witness on direct examination. In interviewing the witness, however, theinvestigator typically attempts to learn everything the witness knows that could potentially be ofsignificance–after all, we need to know the bad with the good–and needs to report the good andbad to defense counsel. For example, a family member might prove to be a great mitigationwitness at penalty phase concerning childhood abuse but also have personal knowledge ofdefendant’s guilt of other violent criminal activity. Defendant, however, should not be forced todisclose to the prosecution irrelevant statements which can affirmatively be used by theprosecution to damage defendant in areas beyond the scope of the direct examination of thewitness.

Once a single report has been completed describing the relevant and irrelevant in a singledocument, defendant’s only recourse is to edit the report, which will ultimately require theapproval of the trial judge. Hopefully, the trial judge will faithfully apply the law and authorizethe excision of the irrelevant portions of the statement. Some situations make for easy editing,

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such as where the witness has knowledge of both guilt and penalty issues but is only being calledto testify at penalty phase; in that situation, only the penalty phase information should bedisclosed. Other situations may prove to be more problematic.

Another method of insuring that a report describes only the relevant statements of awitness is to prepare separate reports, each confined to a specific topic. These topic limitedreports, which should be identified as such so as not to be misleading, do not require any editingand simplify the trial judge’s task in assessing whether defendant has properly disclosed therelevant statement of the witness. Counsel can honestly and unequivocally represent that thetopic limited report contains everything that has been reported concerning the statements of thewitness which are relevant to the scope of his or her direct examination.

As noted above, Roland v. Superior Court, supra, 124 Cal.App.4th 154, 166-168,requires the defense to disclose the oral reports of the relevant statements of defense witnesses,regardless of whether defense counsel personally interviewed the witness or the defenseinvestigator orally reported the contents of his or her interview of the witness, whether or not anynotes or other documentation of the interview was created or preserved. Thus, avoiding anydocumentation of the witness’ statement will not absolve counsel of the responsibility to educatethe prosecution of the relevant statements obtained from the witness, or at least the essence of therelevant statements. As a result, Roland effectively eliminates the possibility of taking theprosecution completely by surprise. On the other hand, oral reports share an advantage similar tothose discussed above concerning topic limited reports in that it facilitates limiting disclosure tothat which the prosecution is entitled and no more, that is, to the relevant portions of thestatement obtained from the witness. The primary tactical difference between oral reports andtopic limited reports is that counsel is the “author” of the oral disclosure to the prosecutionwhereas the investigator is the author of a topic limited report. The disadvantage of oral reportscompared to topic limited reports, however, is that there is absolutely no documentation withwhich to impeach a witness where the only report was oral, whereas impeachment is possiblewith a topic limited report. Whether or not potential impeachment is an issue worth preparingfor is dependent on the nature of the witness, and is generally imperative with the possibleexception of a pure defense mitigation witness such as certain family members or close friends ofdefendant, as discussed above, ante, p. 8.

Finally, a brief comment is in order concerning the investigator’s role in the selection ofthe reporting method. Under the California Code of Regulations, Title 16, Chapter 7, Article 4,section 624, which governs the conduct of private investigators in California, “[i]nvestigativereports shall be submitted to a customer at such times and in such manner as has been agreedupon between the licensee and the customer.” There is no reason these same rules should notapply to public defender investigators, especially since many public defender offices require aprivate investigator’s license in order to work as a public defender investigator, and since thereare no other regulations specifically applicable to public defender investigators. Thus, it is theattorney’s responsibility to select the reporting method, and to do so before the interview is

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conducted. By following that practice, neither the investigator nor the attorney can be accused ofchoosing a method based on the results of the interview.

Preservation and Disclosure of Notes

It is clear that any notes describing the substance of the statement the defense obtainsfrom a witness must be disclosed when the defense intends to present the testimony of thatwitness. (Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 483, 488.) But is there anyduty to preserve notes before any decision is made to have the witness testify? Although there isno case directly addressing this issue in the context of a defendant’s interview of defensewitnesses, People v. Coles (2005) 134 Cal.App.4th 1049, 1056 is instructive. In Coles,defendant complained about the prosecution’s failure to provide the notes prepared by theinvestigating police officers, who had destroyed their notes after completing their written reports. The court of appeal held that the officers’ failure to preserve their investigative notes did notviolate the discovery provisions of Penal Code section 1054.1 et. sequence because (1) the noteswere made by the officers to assist in the accurate preparation of their police reports; (2) thenotes were later destroyed according to departmental policy; and (3) “[t]he destruction was donein good faith,” that is, without malice and with no intentions of seeking “an unconscionableadvantage over the defendant.’” Note that, since the notes were destroyed before a criminalcomplaint was filed, they were necessarily destroyed before any court order was made requiringtheir preservation. (See also, People v. Garcia (2000) 84 Cal.App.4th 316, 331.)

Under due process principles of reciprocity, which must be applied in order to uphold thevalidity of any statutory discovery scheme (Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d82, 93 S.Ct. 2208]), the same principles must be applied to notes taken by defense attorneys orinvestigators. Thus, since there is no right to prosecution discovery except as provided bystatute, and since Penal Code section 1054.3 does not grant the prosecution any discovery rightsunless and until the defendant has formed the intention of calling the witness to testify, theprosecution cannot be entitled to discovery of any notes which have been destroyed before anysuch decision was made, as long as (1) the notes were made by the investigator or attorney toassist in the accurate preparation of their reports; (2) the notes were later destroyed according todepartmental policy; and (3) “[t]he destruction was done in good faith,” that is, without maliceand with no intentions of seeking “an unconscionable advantage over the [prosecution].’” (Coles,supra, 134 Cal.App.4th 1049, 1056.)

Of course, just because notes can be destroyed does not mean that they should bedestroyed. Fundamentally, counsel should uniformly follow the same policy in order to avoidany suggestions of impropriety. Further, assuming that the entirety of the notes are, in fact,incorporated into the subsequent written report, there would be nothing in the notes which couldbe used to impeach the investigator’s report. On the other hand, although it is commonknowledge that notes are generally not meant to be complete records of everything the witnesssaid but, instead, are meant to jog the investigator’s memory when she later writes the full report,counsel should beware that the prosecution would be likely to challenge the accuracy of any

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report which included anything that was not expressly recorded in the investigator’s notes. Thus,there are reasons for and against preservation of notes and the most important ethicalconsideration is consistency.

Some Ethical Considerations in Preparing Witnesses to Testify

In the absence of a specific court order prohibiting counsel from showing one witness thestatement of another witness, counsel is free to do so. Further, it will not be an abuse ofdiscretion for a trial court to refuse to order counsel “not to show one defense witness thestatement of another witness.” (People v. Loker (2008) 44 Cal.4th 691, 733.)

Moreover, it bears emphasis that counsel’s duty to provide effective assistance requiresmore than merely presenting the testimony of defense witnesses. Instead, counsel must preparethe witnesses effectively before putting them on the witness stand. Although Belmontes v. Ayers(9 Cir. 2008) 529 F.3d 834, 861, cert. gtd. and reversed on other grounds in Wong v. Belmontesth

(2009) ___ U.S. ___ [130 S.Ct. 383], did not suggest that defense counsel “should have coachedthe witnesses”, it ruled that “he had a duty to discuss with them the purpose of their testimony,reveal the type of questions he planned to ask them on the stand, and instruct them as to whatkind of information the jury would find helpful and what kind of testimony would not berelevant.” Although the Supreme Court of the United States reversed the decision, finding thatMr. Belmontes was not prejudiced by his counsel’s failings, it did not discuss counsel’s duty todiscuss the witness’s testimony with the witness before presenting his testimony. See, also,James v. Schriro (9 Cir. October 12, 2011) ___ F.3d ___ [2011 Daily Journal Daily Appellateth

Report 15165, 2011 WL 4820605], reversing a death sentence based on ineffective assistance ofcounsel in several respects, including the failure to discuss the testimony of petitioner’s adoptivemother with her before she testified.

Prosecution Discovery from and Concerning Defense Experts

There are two avenues by which a prosecutor might attempt to obtain discovery ofmaterial compiled by a defense expert: directly from the expert or from defense counsel. Counsel must be careful not to overlook the possibility that a prosecutor might directly contact anexpert and request or insist that the expert provide material to the prosecutor. Obviously,discovery should not be provided in that manner but some of our experts may not know thatunless we educate them not to provide anything to the prosecution or anyone else withoutpermission from defense counsel. Experts must be aware that their information is protected bythe attorney–client privilege among other bases, which may include the work product doctrineand/or psychotherapist–patient privilege in certain cases. Even where thepsychotherapist–patient privilege has been waived, the attorney–client privilege may continue. (People v. Lines (1975) 13 Cal.3d 500, 505-517, holding that the examinations of defendant bytwo nontestifying psychiatrists who were appointed by the court to prepare confidentialcommunications continued to be protected by the attorney–client privilege despite the fact thatdefendant had waived the psychotherapist–patient privilege by entering a plea of not guilty by

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reason of insanity.) Thus, in the initial contact with any expert, defense counsel must make surethat the expert is aware that all of his or her work is confidential, protected by the attorney–clientprivilege, and may not be disclosed to anyone without the express authorization of defensecounsel; further, counsel should instruct the expert to report any attempts by anyone to learnanything from the expert.

The rules regarding discovery concerning defense experts emanate from Penal Codesection 1054.3. The prosecution is not entitled to any discovery concerning an expert who hasbeen retained by the defense, although the expert may have examined defendant and written areport concerning his or her examination, unless and until the defense has decided to call thewitness to testify at trial, even where such decision is not made until less than 30 days beforetrial. (Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.) Once the defense hasdisclosed the identity of an expert that will be called to testify at trial, whether guilt or penaltyphase, the prosecution will be entitled to discovery of any reports by the expert, including theresults of defendant’s responses to standardized tests (e.g., MMPI or other psychological testing). (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 1811.) Disclosure is also required of adefense expert’s raw written notes recording “factual determinations of the expert fromobservations made during an examination”(Hines v. Superior Court (1993) 20 Cal.App.4th 1818,1823), but not drafts of the final written report which reflect the expert’s thought processes orinitial conclusions, and not reports of nontestifying experts relied upon by the testifying expert(id. at pp. 1821-1824). Further, while notes documenting “factual determinations” may bediscoverable, other notes taken by an expert are not discoverable “in most circumstances.” (Sandeffer v. Superior Court, supra, 18 Cal.App.4th 672, 679.)

Disclosure of the standardized test questions, however, may be another matter. Indeed,the professional ethics of the psychological profession prohibit the disclosure of test protocols orquestions. For example, because of the danger that public dissemination of neuropsychologicaltesting protocols may lead to the “manipulation of test performance”, the official policystatement of the National Academy of Neuropsychology on the subject of Test Security cautionsagainst the distribution of test data to non-psychologists and suggests that a “neuropsychologistmay respond [to an attorney’s request for disclosure of test protocols and/or test data] by offeringto send the material to another qualified neuropsychologist, once assurances are obtained that thematerial will be properly protected by that professional” or counsel has otherwise obtained“protective orders from the court.” (The Policy Statement may be found on line athttp://www.nanonline.org/NAN/Files/PAIC/PDFs/NANTestSecurityUpdate.pdf.) The NationalAcademy defines the duty to maintain test security “as a basic professional and ethical obligation. . . .” Similar ethical rules may limit disclosure of testing protocols by other mental healthprofessionals.

Defense counsel must be careful not to create problems by prematurely disclosing thename of a potential expert witness before counsel has determined to call the witness. Further,counsel should carefully consider whether or not to request any written report from the expert. These problems were highlighted in Saunders v. Superior Court, an opinion which was ordered

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not to be published by the California Supreme Court (formerly published at 75 Cal.App.4th 789). In that case, the deputy public defender gave the prosecution the names of expert witnesses, andprovided their resumes and telephone numbers with permission to contact them. He alsorequested that his experts prepare written reports. In the trial court, the prosecution complainedthat the reports had not yet been provided. The public defender responded that they were beingprepared but he did not yet have them, and he didn’t know whether he would actually call theexperts to testify until he read their reports. The angry trial court was tyrannical: it ordered thedefense to provide reports from the experts within a one week deadline if not sooner, even if theywere only rough drafts, or else the experts would not be permitted to testify. As it turned out,some of the reports were not completed by the deadline and were not turned over until they werecompleted; in addition, although one report was disclosed on the final deadline date, it had beencompleted six days before. The trial court excluded the testimony of the experts whose reportswere not disclosed by the deadline and fined the deputy public defender $500 for violating itsdiscovery orders. The court also excluded expert testimony that was described in a supplementalreport that was not completed until after the deadline, ruling that it should have been included inthe original report.

The court of appeal affirmed, essentially holding that, although the reports had not yetbeen completed, they were “reasonably accessible” because counsel had already voluntarilyrequested the written reports and could have prevailed upon the experts to complete them by thedeadline (formerly reported in 75 Cal.App.4th at p. 798); and the court held that defense counselfailed to meet his “‘burden of demonstrating that the information subject to discovery isunavailable’” (ibid., quoting from Penal Code § 1054.7). The court emphasized that defensecounsel was not ordered to obtain written reports or have the experts memorialize their opinionsbut, rather, defense counsel “voluntarily ordered expert reports and repeatedly advised the courtthey were forthcoming.” (Id. at p. 797.) In response to counsel’s claim that he had not yetdetermined whether or not to call the experts as witnesses, the court held that “the designation asa trial witness shows the party ‘“reasonably anticipates”’ calling him or her” and that the fact thatcounsel referred to the opinions of two of his experts during in limine motions further supportedthe trial court’s conclusion that defense counsel intended to call them at trial. (Ibid.)

Clearly, the Supreme Court’s depublication of Saunders indicates their disapproval of theholdings therein. Still, defense counsel would be wise to prevent such a quandry fromdeveloping.

Lessons to Learn:

� Since the defense is under no obligation to disclose the name of any potential witnessunless and until we “reasonably anticipate” we are likely to call the witness to testify at trial, donot disclose the witness’s identity before then. In other words, do not disclose an expert’s namejust because she or he is a potential witness. In fact, one should never disclose the name of anexpert until one knows what opinion the expert will testify to, because only then will counsel beable to make any intelligent evaluation of whether or not to call the expert to testify. The only

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exception is where counsel has strong tactical reasons which outweigh the right to insist onnondisclosure.

� If we affirmatively litigate in limine motions concerning the admissibility of ourexpert’s testimony, and we prevail on the motion, then it is reasonably likely that we will call thewitness and we better disclose the expert’s name, address and any written report or test results. On the other hand, if we lose the motion or the judge defers ruling on the motion, then we stillcannot make any intelligent decision whether or not we are likely to call the expert to testify(other than we will probably not call the witness where the court ruled against us on the motion).

� One may question the wisdom of requesting a comprehensive or extensive writtenreport written report from an expert. A verbal communication with the expert will informdefense counsel of everything she or he needs to know and is all that counsel needs. In addition,there is the fiscal consideration of whether an indigent defense office (e.g., Public DefenderOffice) can afford the several hundred or thousands of extra dollars it will cost to obtain a writtenreport, especially where the report serves absolutely no purpose for the defense. Where theexpert is instructed not to prepare a written report because of monetary considerations, it isincumbent on counsel to explain to the expert that the reason is because of the lack of funds topay for the report. (See, People v. Lamb (2006) 136 Cal.App.4th 205, in which counsel advisedthe court that no written report was obtained because there were no funds to pay for the report,but the expert then “mentioned that written reports are sometimes not prepared in order to avoiddiscovery.” The expert’s statement thereby undercut counsel’s credibility.) To be distinguished,however, is the rare situation where counsel wants to use the expert’s opinion to facilitatenegotiations or to convince the prosecution to dismiss the case, and needs to present theprosecution with a written report (e.g., polygraph) to facilitate such negotiations. Even in suchcases, counsel should only request a written report after having already orally communicated withthe expert and determining that a written report will assist in the negotiations.

� However, given the duty to disclose the relevant oral reports of any testifying witnessunder Roland v. Superior Court, supra, 124 Cal.App.4th 154, 166-168, and the inevitableprosecution cross-examination complaining about the expert’s failure to prepare a written report,counsel would be well served by having the expert prepare at least a bare bones reportdocumenting (1) an inventory of any and all tests the expert administered to defendant; (2) theresults of those tests, including both the raw test answers and any computer generated scoringresults; and (3) a concise (e.g., single sentence) description of the expert’s bottom lineconclusion. All of this information must be disclosed to the prosecution anyway; thus, includingthis minimal information in the “report” does not provide the prosecution with any additionalinformation but does take the steam out of their predictable cross-examination. Indeed, in Peoplev. Lamb, supra, 136 Cal.App.4th 205, the court of appeal upheld the trial court’s imposition ofsanctions based on defense counsel’s failure to apprise the prosecution of the information he hadorally obtained from the defense accident reconstruction expert, which should have beendisclosed pursuant to Roland and Penal Code section 1054.3. The expert “had made notes about[his] interviews with witnesses, had made calculations to determine the cause of the accident,

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made notes about his inspections of the vehicles, and had conveyed this information to defensecounsel. [He also] explained his theories to defense counsel. . . . [H]e had formed his opinion asto the cause of the accident . . . , and he conveyed that opinion orally to defense counsel.” Theexpert did not provide his notes to defense counsel, but “he conveyed the information containedin these notes in general terms to defense counsel.” Without deciding whether disclosure of thenotes were required or was protected under the work product doctrine, the appellate court agreedthat defense counsel had engaged in “gamesmanship” designed to hide discovery. Thus, Lambillustrates the need to provide discovery to the prosecution of an expert’s oral reports to defensecounsel, and the wisdom of providing that discovery in a written report.

Counsel should also consider whether or not to have the written report include a list ofthe materials that were provided to the expert for review, although the “source” informationrelied upon by the expert need not be disclosed until after the completion of direct examinationunder Evidence Code sections 771, 802 and 804, as discussed in the section below on“Disclosure of Materials Provided to the Defense Expert as the Basis for his or her Opinion”,post, at p. 24. There are reasons for and against advance disclosure of the list of materials, andthe decision must be made based on the tactical situation presented in the particular case,including a consideration of the particular prosecutor and trial judge.

� As pointed out by Grace Suarez, In re Serra (9th Cir. 1973) 484 F.2d 947, held that thegreat Tony Serra was properly found in contempt for instructing his retained expert not to prepareany written report. He was held in contempt because the trial court ordered reciprocal discovery,but Mr. Serra apparently told the prosecuting attorney “that he had instructed [the doctor] to writeno report and that this was good trial practice to avoid reciprocal discovery.” Thus, Mr. Serrawas victimized by his choice of words. Similarly, in People v. Lamb, supra, 136 Cal.App.4th205, the expert personally advised the court “that written reports are sometimes not prepared inorder to avoid discovery.” The court of appeal and the trial court were not pleased by thisexplanation, which appeared inconsistent with defense counsel’s statement that no written“report was prepared because defendant could not afford to have one written.”

� Hines v. Superior Court, supra, 20 Cal.App.4th 1818, 1821-1824, holds that thedefense is not required to disclose drafts of the final written report which reflect the expert’sthought processes or initial conclusions, nor reports of nontestifying experts relied upon by thetestifying expert.

� Note that Penal Code section 1054.3(a) requires that results of tests must be disclosed,but test results are not reports; reports involve opinions, analyses, subjective considerations and,frequently, narrative descriptions of the facts, including our client’s statements. Test results aresimply objective facts, and it is hard to imagine any test being administered withoutdocumentation of the test results; otherwise, how would the expert convince anyone what theresults were? Thus, test results should always be documented and they have to be disclosed,even if they are raw test results without any interpretation by the expert. The same is true forexperiments, comparisons (e.g., ballistics, handwriting) and scientific tests, which must be

Note that a somewhat different but related issue was discussed in People v. Gray (2005)5

37 Cal.4th 168, in which physical evidence had been made available to a defense expert forforensic examination. The prosecution was permitted to present the testimony of lawenforcement officers that they had shown the evidence (fingerprints, hair and serologicalsamples) to defense experts, and that such evidence was still available to be examined by thedefense. On appeal, the Supreme Court found no error because “[i]nformation that forensicevidence was made available to the defense does not constitute comment on the ‘exercise of’ thework product privilege.” (At 208.) On the other hand, the Court found that, assuming an

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disclosed and should always generate reports. Although the statute also speaks of disclosing “theresults of physical or mental examinations,” the reference should be understood as referring toobjectively observable facts, such as would be described in medical records or the scoring ofsuch mental health examinations as neuropsychological tests. (Cf. People v. Reyes (1974) 12Cal.3d 486, 502-503, holding that a psychiatric diagnosis or opinion does not qualify as an “act,condition or event” within the meaning of the business records exception to the hearsay rule, incontrast to a diagnosis of a broken bone which is made on the basis of an x-ray.)

The Prosecution is Not Allowed to Obtain Discovery of Defense Experts by Checking JailSign-in Logs or Through Social Contacts

People v. Coddington (2000) 23 Cal.4th 529, 603-606, overruled on other grounds inPrice v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, found the prosecution committederror–albeit harmless–in having obtained confidential information concerning the identity ofnontestifying experts retained by the defense, cross-examining testifying experts concerning thenontestifying experts’ evaluations of defendant, and commenting on the testifying experts’ lackof knowledge of the findings by the nontestifying experts. Essentially, the prosecution painted apicture that the defense had first hired experts who reached conclusions the defense did not likebefore presenting the testimony of other experts who were never told about the contrary findingsby the previous experts. The prosecution learned the identity of the nontestifying experts“through jail sign-in sheets and social contacts.” (At p. 603.) The Supreme Court held that“[t]he prosecutor’s cross-examination and his invitation to the jury to infer that defendant hadbeen examined by other experts who had not been called to testify” violated the work productprivilege codified in Code of Civil Procedure section 2018 (at p. 606), which is “applicable in allcriminal as well as civil proceedings . . .” (at p. 605). “Work product encompasses theinvestigation of defendant’s mental state to assess both the favorable and the unfavorable aspectsof the case. It also encompasses counsel’s impressions and conclusions regarding witnesses whowould be favorable and those who would not be so. [Citation omitted.] It follows that theparty’s decision that an expert who has been consulted should not be called to testify is within theprivilege.” (At p. 606.) The court was not impressed by the prosecution’s attempt to evade theprivilege by learning of the nontestifying experts through jail visiting records. “Regardless ofhow the information is obtained, . . . if a party were permitted to use information about pretrialinvestigation that reveals opposing counsel’s thought processes and reasons for tactical decisions,thorough investigation would be discouraged.” (Ibid.)5

objection (which was never made at trial) should have been sustained, defendant did not sufferprejudice. Beware, however, that Justices Chin and Baxter wrote concurring opinions expressingthe view that Coddington did not prevent the prosecution from affirmatively presenting thetestimony of defense forensic experts under the facts presented in Gray. See also, People v.Zamudio (2008) 43 Cal.4th 327, 351-355, upholding the testimony of a prosecution criminalistthat she preserved a portion of a blood sample in order to permit it to be examined by thedefense, and that it had, in fact, been “released to a defense lab.” Finally, People v. Bennett(2009) 45 Cal.4th 577, upheld the prosecution’s redirect of its criminalist after defense cross-examination attempted to demonstrate that the criminalist was biased in favor of the prosecution. The California Supreme Court held that the prosecution could then ask if a sample remainedavailable for testing by the defense. But although the Court also held that the attorney-clientprivilege did not prohibit questioning about whether the defense had sought to re-test the sample,the trial court in Bennett ruled that such testimony was inadmissible under Evidence Codesection 352. (45 Cal.4th at p. 593.) In addition, People v. Wallace (2008) 44 Cal.4th 1032,1072, assumed that the prosecutor committed misconduct in cross-examining a defense expertabout whether a portion “of defendant’s blood sample had been ‘released for independentanalysis.’” The expert answered that the sample had been released to the defense investigator. Inresponse to defendant’s objections, the prosecutor asserted “that the question was appropriatebecause the defense had attacked the credibility of the prosecutor’s blood-sample analyst but hadnot offered any evidence of a different blood analysis.” The trial court, however, “ruled that theprosecutor’s question improperly sought defense work product, . . .” and, as noted, the SupremeCourt assumed the prosecutor committed misconduct but found that it was not prejudicial todefendant. Perhaps the difference between the permissible testimony in Zamudio and theimpermissible examination in Wallace is that the prosecutor in Zamudio elicited testimony froma prosecution witness concerning the prosecution’s actions in handling the item of forensicevidence, whereas the prosecutor in Wallace attempted to examine the defense witnessconcerning the defense’s actions in handling the forensic evidence. See also People v. Scott(2011) 52 Cal.4th 452, 489, holding that there was no violation of the statutory work productprivilege, right to a fair trial or the right to counsel from allowing the prosecutor to presenttestimony that a recovered bullet had been in the possession of a defense expert. Once again, theforegoing evidence in Scott was presented through the testimony of a prosecution witness, not adefense witness. (At p. 466, observing that the defense did not present any witnesses.)

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Defendant’s Statements to the Expert Are Not Discoverable and Should be Deleted fromAny Reports Disclosed to the Prosecution

Given the exclusion of a defendant’s statements from prosecution discovery under PenalCode section 1054.3, the prosecution is not entitled to discover defendant’s statements to anexpert, at least not until the attorney–client privilege has been waived in that respect by havingthe expert actually testify to his or her opinions which are based on a consideration ofdefendant’s statements. Thus, Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1267,1269-1270, held that it was proper to excise the description of defendant’s statements from a

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psychologist’s report despite the identification of the psychologist as an expert witness whomdefendant was going to call as a witness at trial. Likewise, Andrade v. Superior Court (1996) 46Cal.App.4th 1609, 1614, ruled that the prosecution could not obtain discovery of defendant’sstatements to a psychologist which the psychologist relied upon in forming her opinion, althoughthe defense was presenting the witness to testify at trial. Once again, the Andrade court relied onthe attorney–client privilege, agreeing with Rodriguez, supra, and distinguishing Woods, supra,as being limited to disclosure of a defendant’s responses to standardized tests. (Cf. People v.Jones (2003) 29 Cal.4th 1229, 1264, and fn. 10, upholding the trial court’s order, made duringthe penalty phase of the capital trial but in advance of the expert’s testimony, for disclosure of thesource materials relied upon by the defense psychiatrist or psychologist, including the unredactednotes of defendant’s statements to the expert. Jones distinguishes Rodriguez and Andrade on thegrounds that they involved pretrial discovery, whereas Jones involved discovery of the materialsduring the same penalty phase at which the expert was about to testify. Thus, Jones does notauthorize pretrial discovery of source materials, materials the expert has relied upon, or anystatements defendant made to the expert. Instead, these materials may only be disclosed in thesame phase of the trial at which the expert is about to testify, and only in the discretion of thetrial court if the judge believes it will help avoid a continuance between the direct and cross-examination of the expert.)

Defense Testing of Forensic Evidence: Confidentiality of the Defense Expert’s Identityand the Results of the Defense Examination

Not only does the attorney–client privilege preclude disclosure of defendant’s statementsto the expert, it likewise prohibits the prosecution from learning the identity of the defense expertto whom physical evidence in the possession of the prosecution is being released for confidentialtesting, as long as the prosecution has already been able to conduct its own testing or thereremains a sufficient sample to permit additional testing by the prosecution. (Prince v. SuperiorCourt (1992) 8 Cal.App.4th 1176, 1180-1181.) In Prince, the prosecution obtained at least foursemen samples and defendant applied for a court order releasing one sample to a confidentialexpert for PCR DNA testing. The trial court issued the order but required defendant to disclosethe name of the lab and the report to the prosecution. The court of appeal, however, issued aperemptory writ prohibiting such disclosure, observing that the prosecution would obtain suchinformation if the results favored defendant and he chose to present the expert; if not, defendantwould not call the expert as a witness and the prosecution would not be entitled to discovery ofthe name of the expert or the results of the examination. (At p. 1180.) The court distinguishedPeople v. Cooper (1991) 53 Cal.3d 771, because Cooper involved the denial of “a defenserequest to conduct an independent blood test which would have consumed the entire sample.” (Prince v. Superior Court, supra, 8 Cal.App.4th at p. 1179.) (Contrast Walters v. Superior Court(2000) 80 Cal.App.4th 1074, which held that the prosecution’s due process rights were violatedby an order which required the police to allow a defense expert to perform ballistics tests insidethe police department on evidence in the possession of the police, without notice to theprosecution, and prohibiting the police department from notifying the prosecution of the testing.)

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On the other hand, People v. Varghese (2008) 162 Cal.App.4th 1084, 1092-1095,distinguished Prince and held that the defense did not have the right to perform a confidentialforensic analysis of a blood sample which had already been analyzed by the prosecution becausethe remainder of the sample would probably have been consumed by the defense examination,depriving the prosecution of its ability to conduct a confirmatory test. Instead, Varghese heldthat if the defense wanted to conduct its own examination under these circumstances, it mustreveal the result to the prosecution.

Further, counsel should beware of the concurring opinions of Justices Chin and Baxter inPeople v. Gray, supra, 37 Cal.4th 168, discussed in footnote 4, ante, in which these justicesopined that the prosecution should be allowed to affirmatively present the testimony of defenseexperts who conducted forensic examinations of physical evidence in the possession of theprosecution.

Disclosure of Materials Provided to the Defense Expert as the Basis for his or her Opinion

Finally, it should be noted that Penal Code section 1054.3 does not specifically addressthe question of the prosecution’s ability to examine materials provided to a defense expert forreview in arriving at an opinion. Indeed, Hines v. Superior Court, supra, 20 Cal.App.4th 1818,1821-1824, specifically holds that Penal Code section 1054.3 does not entitle the prosecution todiscovery of materials relied upon the expert which were not authored by the expert (addressingreports of other, nontestifying, experts relied upon by the testifying expert). Rather, theprosecution’s right to obtain discovery of information furnished to an expert is based onEvidence Code sections 721, subdivision (a)(3) (concerning materials relied upon by an expert asa basis for his or her opinion), 802 (permitting examination of an expert concerning the matterupon which his or her opinion is based), 804 (permitting examination of persons whosestatements form a basis of a testifying expert’s opinion), and 771 (permitting a party to examineanything relied upon by any witness to refresh his or her recollection). There is little doubt that aprosecutor is entitled to review the materials relied upon by an expert in forming his or heropinion. However, the prosecution has no right to review those materials before the witnessbegins to testify. Instead, the timing of such disclosure is generally a tactical matter for counselto determine, although as noted above, People v. Jones, supra, 29 Cal.4th 1229, 1264, and fn. 10,upheld a trial court’s order in the midst of penalty phase requiring the defense to disclose thesource materials provided to the defense psychiatrist before the psychiatrist testified in order toavoid the need for a continuance after the psychiatrist completed his direct examination. (Onceagain, the opinion stresses that no pretrial discovery was allowed, but only disclosure during thesame portion of the trial in which the expert was going to testify, and only for the purpose ofobviating the need for a continuance.) Obviously, delaying disclosure of such material until thecompletion of direct examination will surely lead to a recess before the commencement of cross-examination, so it may be wise to provide disclosure in sufficient time to enable the prosecutor toprepare for cross-examination, while leaving little or no additional advance warning.

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The lack of any prosecution right to discover information provided to our expertsillustrates the potential use of “pyramiding,” as observed by Gary Sowards. For example, whereexpert one administers the MMPI or a Rorschach test to the client, but expert one does not testifyat trial, the prosecution is not entitled to pretrial discovery of the test results even if expert oneadvises the testifying expert of the test results. Of course, as noted above, once the second experttestifies, the prosecution will be able to cross-examine the testifying expert about the informationprovided by the non-testifying expert (Evidence Code section 802), and will be allowed to callthe non-testifying expert to the witness stand (Evidence Code section 804). (See, e.g., People v.Alfaro (2007) 41 Cal.4th 1277, 1323-1327.) On the other hand, where the results of the firstexpert’s examination is not helpful, and the second expert is not exposed to those results, there isno basis for the prosecution to obtain discovery of those results.

Prosecution Attempts to Obtain Mental Health Examinations of Our Clients

Penal Code section 1027 provides that the court must appoint up to three psychiatrists orpsychologists to examine a defendant who has entered a plea of not guilty by reason of insanity,and Penal Code section 1369 similarly provides that the court shall appoint one or morepsychiatrists or psychologists to examine a defendant once a doubt has been declared aboutdefendant’s competency to proceed. But what about prosecution attempts to have their ownexpert examine the defendant?

In the context of the sanity phase, People v. Coddington (2000) 23 Cal.4th 529, 611-612,(overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13),held: “When a defense of insanity has been offered, the defendant waives the Fifth and SixthAmendment rights to the extent necessary to permit the prosecution to obtain an examination ofthe defendant’s condition. The defendant may preserve his rights by refusing to cooperate, butcomment on that refusal is permissible.”

In the context of the penalty phase of a capital prosecution, People v. McPeters (1992) 2Cal.4th 1148, 1190, held that, once defendant presented two psychiatrists at penalty phase whotestified concerning his mental condition, he “waived his Fifth and Sixth Amendment rights tothe extent necessary to permit a proper examination of that condition.” Thus, it was proper forthe trial court to grant the prosecution’s motion to have defendant examined by a prosecutionpsychiatrist before testifying in rebuttal. Further, defendant’s rights were not violated byallowing the prosecution psychiatrist to “testif[y] to defendant’s refusal to cooperate.” Likewise,People v. Carpenter (1997) 15 Cal.4th 312, 412, upheld testimony by a prosecution psychiatristdescribing defendant’s refusal to submit to the psychiatric examination which was ordered inresponse to defendant’s expert mental health testimony at penalty phase. Carpenter alsoaffirmed the trial court’s instruction to the jury that the refusal “‘may be considered by you. Ifyou find that the defendant’s refusal to answer questions or to be interviewed was willful, youmay take that fact into consideration when weighing the opinions of the defense experts in thiscase.’”

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Similarly, with respect to the guilt phase of any criminal prosecution, People v. Danis(1973) 31 Cal.App.3d 782, 785-786, held that, “by presenting psychiatric testimony in support ofhis diminished capacity defense, defendant here has waived his privilege against self-incrimination, at least to the extent of foreclosing any objection to the testimony of a court-appointed psychiatrist relating to the diminished capacity issue.”

It must be noted, however, that Danis, McPeters, Carpenter, and Coddington alladdressed trials which occurred before the enactment of Penal Code section 1054.5(a), whichnow provides that “[n]o order requiring discovery shall be made in criminal cases except asprovided in this chapter.” (See, also, Penal Code section 1054(e), providing “that no discoveryshall occur in criminal cases except as provided by this chapter, other express statutoryprovisions, or as mandated by the Constitution of the United States.”) Emphasizing thisdistinction, Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1116, emphatically held that theprosecution had no right to obtain a court order for defendant to be examined by a mental healthexpert of the prosecution’s choice, even after defendant disclosed that he would be presenting amental health defense and provided the name and reports of the psychologist he was going topresent as an expert witness. The Court held that “we find the trial court’s order granting theprosecution access to petitioner for purposes of having a prosecution expert conduct a mentalexamination is a form of discovery that is not authorized by the criminal discovery statutes or anyother statute, nor is it mandated by the United States Constitution. Although we have in the pastfound merit in a rule authorizing such discovery when a defendant places his mental state in issue(McPeters, supra, 2 Cal.4th 1148), following Proposition 115 and the enactment of theexclusivity guidelines in section 1054, subdivision (e), we are no longer free to create such a ruleof criminal procedure, untethered to a statutory or constitutional base.”

Citing its decision in Verdin, People v. Wallace (2008) 44 Cal.4th 1032, 1087-1088, heldthat it was error for the trial court to authorize an expert of the prosecution’s choice to evaluatedefendant even after defendant affirmatively presented the testimony of two clinicalpsychologists at penalty phase; thus, it was also error to permit a prosecution expert to testify thatdefendant refused “to cooperate with the court-ordered psychiatric examination.” As such,Wallace expanded on Verdin, applying Verdin’s prohibition against pretrial prosecution mentalhealth examinations of defendant to prohibit midtrial examinations as well.

Unfortunately for criminal defendants, the Legislature responded to Verdin by amendingsubdivision (b) to Penal Code section 1054.3, providing that “the court may order that thedefendant or juvenile submit to examination by a prosecution-retained mental health expert”whenever the defendant or juvenile “places in issue his or her mental state at any phase of thecriminal action or juvenile proceeding through the proposed testimony of any mental healthexpert . . . .” However, on the request of the defendant, “the trial court must make a thresholddetermination that the proposed tests bear some reasonable relation to the mental state placed inissue by the defendant in a criminal action or a minor in a juvenile proceeding. For the purposesof this subdivision, the term ‘tests’ shall include any and all assessment techniques such as aclinical interview or a mental status examination.” (Subdivision (b)(1)(B).)

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Moreover, People v. Gonzales (2011) 51 Cal.4th 894, 928, held that, even under Verdin,and before the 2009 amendments to Penal Code section 1054.3, subdivision (b), Evidence Codesection 730 provided an “alternate source of authority” for the mental health examination ofdefendant after she announced she would present a defense based on battered woman syndrome. Gonzales further held there was no abuse of discretion in ordering defendant to submit toexaminations by two prosecution mental health experts because defendant presented thetestimony of two experts of her own. (51 Cal.4th at p. 929.)

In Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, a non-capital specialcircumstance murder case, the court of appeal held that the defendant, having expressly raised theclaim that he may not be competent to proceed, could be ordered to submit to a mental healthexamination by a prosecution expert for the purpose of evaluating his mental competency toassist in his defense. The court held that an order for such discovery was not prohibited by PenalCode section 1054, subdivision (e) because competency proceedings under Penal Code section1368 are not criminal proceedings; instead, they “‘are governed generally by the rules applicableto civil proceedings.’” The court also held that defendant has no Sixth Amendment right to havedefense counsel present during the prosecution’s examination, although it implied that the trialcourt may exercise its discretion to permit counsel to be present as an observer. However, thecourt held that, given the civil nature of the proceedings, an order to submit to a mentalcompetency examination by a prosecution expert must comply with the Civil Discovery Act;thus, the examination could not be videotaped but may “be recorded only by means of ‘audiotape’”, and the order must specify “the prosecution expert who may perform the examination,and ‘the time, place, manner, diagnostic tests and procedures, conditions, scope and nature of theexamination . . . .’” Further, any statements defendant makes to the prosecution mental healthexpert are protected by a judicially declared rule of immunity, which precludes their use atdefendant’s trial on the substantive charges, including any sanity phase. On the other hand, ifdefendant refuses to submit to the examination, sanctions may be imposed, including disclosureof defendant’s refusal to the jury.

Prosecution Mental Health Examinations to Evaluate Mental Retardation

Centeno v. Superior Court (2004) 117 Cal.App.4th 30, held that, once a capital defendantraised the issue of mental retardation, the prosecution was permitted to have its own mentalhealth expert examine the defendant for the purposes of evaluating whether or not he wasmentally retarded. However, any psychological or psychiatric examination to be conducted by aprosecution expert must be reasonably related to the same mental condition tendered by thedefense. (Centeno v. Superior Court, supra, 117 Cal.App.4th 30, 45.) As held in Centeno:

It is true that a defendant who tenders his mental condition as an issue may besubject to examination by prosecution experts. (People v. McPeters, supra, 2Cal.4th at p. 1190; Baqleh v. Superior Court, supra, 100 Cal.App.4th at pp. 488-493; People v. Danis, supra, 31 Cal.App.3d at pp. 786-787.) However, thoseexaminations are permissible only to the extent they are reasonably related to

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the determination of the existence of the mental condition raised. (People v.Carpenter, supra, 15 Cal.4th at p. 412; see also Pen. Code, §§ 1376, subd. (b)(2).)

(117 Cal.App.4th 30, 45; emphasis added.) As further held by the Centeno court:

Thus, if requested, the prosecution must, as it was required to do in this case,submit a list of proposed tests to be considered by the defendant so that anyobjections may be raised before testing begins. Then, upon a defense objectionto specific proposed prosecution tests, the trial court must make a thresholddetermination that the tests bear some reasonable relation to measuring [themental condition raised by defendant], including factors that might confound orexplain the testing, such as malingering. Otherwise, there is a danger thatdefendants will be improperly subjected to mental examinations beyond thescope of the precise issue they have tendered and their resulting waiver ofconstitutional rights.

(Ibid.; emphasis added.)

Thus, defense counsel must make sure that examinations for mental retardation are not sobroad as to allow fishing expeditions for personality disorders such as antisocial personalitydisorder or psychopathy. Unless such limitations are ordered by the court, counsel must carefullyevaluate whether or not to allow a prosecution or court expert to examine a defendant under theguise of evaluating whether defendant is mentally retarded.