Ethical Considerations in Criminal Defense Practice,
Including Prosecution Discovery
Michael Ogul
Deputy Public Defender, County of Santa Clara
mogul@pdo.sccgov.org
(408) 299-7817
revised November 2, 2011
Introduction
There are many different aspects of criminal defense practice, and it can generally be said
that different ethical considerations may apply to different aspects of practice but it must be
emphasized that certain considerations apply throughout the case.
First, it should go without saying that, at all times, investigators and attorneys must be
scrupulously honest. Second, it is fundamental that the paramount duty of criminal defense
investigators 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]o
maintain 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 all
information 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 competency
of defense counsel where counsel acceded to a court order requiring disclosure of the statement a
defense investigator obtained from a defense witness because the order was invalid under thenexisting law (which was prior to the enactment of Penal Code section 1054 et. sequence).
Although defense counsel must comply with certain disclosure obligations under California
Penal Code section 1054.3, counsel must also resist any other disclosure unless and until a valid
court order is issued or a compelling countervailing tactical consideration arises. While this
author is generally unfamiliar with disclosure obligations imposed on defense counsel in other
jurisdictions1, the ethical point here remains the same: counsel must not disclose anything to the
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 rule
of privilege or confidentiality.
Thus, defense disclosure obligations are at the heart of ethical considerations in criminal
defense practice. As such, this article includes a discussion of these issues.
1
W ith apologies to practitioners and investigators from federal and other state jurisdictions, the authorities
cited in this article are almost exclusively references to California law.
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Handling Physical Evidence
Occasionally, defense investigators will uncover physical evidence. Different ethical
considerations govern the investigator’s handling of physical evidence depending upon whether
the 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), or
irrelevant (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 access
physical 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 murder
victim and hidden by defendant. The investigator not only found the wallet but moved it, taking
it 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 to
defense 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 a
prosecution witness, and to elicit his testimony identifying the location where he had found the
wallet. The California Supreme Court affirmed, noting that similar decisions had been made by
other courts, citing to People v. Belge (1975) 83 Misc.2d 186 [372 N.Y.S.2d 798], affirmed in
People v. Belge (1975) 50 App.Div.2d 1088 [376 N.Y.S.2d 771]. The California Supreme Court
defined the rule as follows: “If defense counsel leaves the evidence where he discovers it, his
observations 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 of
that evidence loses the protection of the privilege. Applying this analysis to the present case, we
hold that the trial court did not err in admitting the investigator's testimony concerning the
location 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 the
physical evidence and the location where it was obtained, the defense is allowed to keep
possession of that physical evidence for a brief period of time in order to examine it. As noted in
Meredith, “[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 it
for 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 evidence
before turning it over to the prosecution.
Different considerations may apply with regards to evidence that it is incriminating but is
not physical evidence of the crime itself. In People v. Sanchez (1994) 24 Cal.App.4th 1012, the
Court 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 the
prosecution learned that the letters were in the court’s possession, it successfully obtained them
from the court. The court of appeal found no error, stating that defense counsel did nothing more
than he was obligated to in turning the letters over to the court. (At p. 1020.) It is important to
note, however, that there was no issue or holding concerning whether defense counsel really was
obligated to turn the letters over to the court. Instead, in holding that there was no violation of
defendant’s Fifth Amendment privilege against self-incrimination, the court was careful to point
out 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 of
incriminating letters written by defendant, the prosecution is entitled to obtain those letters from
the 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 32
for 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 in
possession of the weapons used to commit the murder charged against defendant. As with the
fruits of the murder in Meredith, the court held that, since counsel came into possession of the
murder weapons, counsel was required to turn them over to the court so that the prosecution
could obtain them. (At pp. 39-40.)
Thus, at least under California law, the rules may be summarized as follows: If defense
counsel or a defense investigator finds physical evidence that inculpates defendant, he or she has
no duty to disclose that evidence to the prosecution as long as she does not move, alter, or come
into possession of that evidence. For example, counsel can photograph the evidence and not
disclose anything to the prosecution. However, if counsel moves, alter or take possession of the
evidence, counsel must disclose both the physical item and the location where they found it to the
prosecution, although the defense may first conduct an examination of the evidence, e.g., by a
qualified laboratory or expert. With regards to letters or other incriminatory writings that were
written 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 counsel
must provide such letters to the court, and such compelled disclosure may violate the privilege
against self-incrimination.
Threats to Harm Others
What should defense counsel or defense investigators do if and when their client tells
them that they want to harm another person? It must be remembered that anything a client tells a
member of the defense team is generally protected by the attorney-client privilege. California
Evidence Code section 956.5 provides a limited exception “if the lawyer reasonably believes that
disclosure of any confidential communication of a client is necessary to prevent a criminal act
that the lawyer reasonable believes is likely to result in the death of, or substantial bodily harm
to, 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 information
relating to the representation of a client to the extent that the member reasonably
believes the disclosure is necessary to prevent a criminal act that the member
reasonably believes is likely to result in death of, or substantial bodily harm to, an
individual.
“(C) Before revealing confidential information to prevent a criminal act as
provided 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 to
continue the criminal act or (ii) to pursue a course of conduct that will
prevent 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 or
decision to reveal information as provided in paragraph (B).
“(D) In revealing confidential information as provided in paragraph (B), the
member’s disclosure must be no more than is necessary to prevent the criminal
act, 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) does
not violate this rule.”
May Counsel Declare a Conflict Based on Threats of Violence Against Counsel or
Counsel’s Staff?
People v. Roldan (2005) 35 Cal.4th 646, 676, a capital case, held that a defendant’s
threats of violence against his attorney does not create a conflict of interest, even where counsel
declares a conflict based on such threats, at least in the absence of any evidence that the threats
have adversely affected counsel’s quality of representation.
In addition, People v. Bolton (2008) 166 Cal.App.4th 343, 359, held that a client’s threats
against 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 where
counsel knows that the client is committing perjury. (People v. Johnson (1998) 62 Cal.App.4th
608, 629.) However, it is an unmistakable sign of the attorney’s disbelief in his or her own
client’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 suspects
that defendant will give perjured testimony, counsel is not required to have defendant testify in a
narrative 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 no
specific undisclosed factual knowledge of its falsity, it does not raise an ethical problem.’” As
explained in Riel:
A “‘lawyer should not conclude that testimony is or will be false unless there is a
firm factual basis for doing so. Such a basis exists when facts known to the lawyer
or the client’s own statements indicate to the lawyer that the testimony or other
evidence is false.’ ... [C]ounsel’s belief in their client’s guilt certainly cannot
create an ethical bar against introduction of exculpatory evidence.” “It is the role
of the judge or jury to determine the facts, not that of the attorney.” (Citations
omitted.)
Although attorneys may not present evidence they know to be false or assist in
perpetrating known frauds on the court, they may ethically present evidence that
they suspect, but do not personally know, is false. Criminal defense attorneys
sometimes have to present evidence that is incredible and that, not being naive,
they might personally disbelieve. Presenting incredible evidence may raise
difficult tactical decisions—if counsel finds evidence incredible, the fact finder
may also—but, as long as counsel has no specific undisclosed factual knowledge
of 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 valid
basis 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 a
complete 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 the
client. (See, e.g., Rule 3-500, Rules of Professional Conduct, which provides: “A member shall
keep a client reasonably informed about significant developments relating to the employment or
representation, including promptly complying with reasonable requests for information and
copies 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 is
sufficient for counsel to review the reports with the client in person without leaving a copy with
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the client. (People v. Hart (1999) 20 Cal.4th 546, 602-604.2) In Hart, a capital case, defense
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 against
defendant.” (At p. 602.) The client brought a Marsden motion as a result, which was denied by
the trial court. The California Supreme Court affirmed the denial, ruling that “the trial court
reasonably concluded that trial counsel’s decision not to provide defendant with copies of the
police 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 a
Marsden motion based on defense counsel’s refusal to give defendant a copy of the police
reports, because “the trial court reasonably could find that counsel had properly refused to
provide defendant with the police reports in his case because of concern the documents would
fall into the hands of a would-be jailhouse informant who might use the police reports to
fabricate evidence against defendant.”
Of course, where counsel does provide the client with a copy of the reports or other
discovery, counsel must take great care to insure that the documents have been redacted in
compliance with Penal Code section 1054.2. Specifically, subdivision (a)(1) prohibits counsel
from disclosing “the address or telephone number of a victim or witness whose name is disclosed
to the attorney” through discovery to the “defendant, members of the defendant’s family, or
anyone else” other than “persons employed by the attorney or to persons appointed by the court
to 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 further
dissemination of the information, except as provided by this section, is prohibited.” (The express
authorization 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 a
capital defendant’s right to obtain discovery of documents in the possession of a third party
through a subpoena duces tecum. More importantly, the court held that the defendant must be
permitted to demonstrate good cause in support of the subpoena by “present[ing] his relevancy
theories at an in camera hearing. An in camera hearing is necessary to protect [defendant’s] Fifth
Amendment 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] the
Hobson’s choice of going forth with his discovery efforts and revealing possible defense
strategies and work product to the prosecution, or refraining from pursuing these discovery
materials to protect his constitutional rights and prevent undesirable disclosures to his
adversary.” (Id. at p. 1321.)
Unfortunately, while affirming that, “when a defendant has issued a subpoena to a
2
The author is indebted to Garrick Byers of the Fresno County Public Defenders Office for
bringing Hart to his attention.
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nonparty, the hearing at which the defense seeks to justify its entitlement to the records may be
conducted in camera” (Kling v. Superior Court (2010) 50 Cal.4th 1068, 1077), the California
Supreme Court cautioned that the use of in camera hearings for the evaluation of the defendant’s
showing of good cause “should be limited to that which is necessary to safeguard the rights of the
defendant or of a third party, inasmuch as ex parte proceedings are generally disfavored because
of their inherent deficiencies.” (At p. 1079.)
Limiting Access to Subpoenaed Documents
Often times defense counsel issues a subpoena duces tecum for documents without
knowing what they will contain. Unfortunately, there is always a risk that the documents will not
only 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 the
information and obtain the documents through the release instead of through the subpoena
process.
Still, there will be many, many occasions when it is impossible to get a release–for
example, a victim or victim’s family member will virtually never sign a release for the
defense–but the effective representation of defendant militates in favor of getting the records
although counsel does not know what they will contain. In these situations, a subpoena duces
tecum is the only chance. What, if anything, can counsel do to try to prevent against potentially
harmful information being indirectly fed to the prosecution by a subpoena duces tecum issued by
the defense?
Counsel first needs to distinguish situations where custodians of records voluntarily
provide courtesy copies of the subpoenaed documents to counsel from those situations where the
custodian only provides the documents to the court under seal as requested by the subpoena
duces tecum. Just as counsel cannot compel the custodian to generously provide a copy directly
to counsel, counsel also cannot prohibit the custodian from voluntarily providing an extra copy to
opposing 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.3d
1087, 1095, defendant cannot obtain a court order prohibiting the custodian from voluntarily
providing 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 voluntarily
providing a copy to the prosecution is to thoroughly explain to the custodian that the subpoena
only requires that the documents must be provided to the court, under seal, and that counsel has
no authority to require a copy to be delivered to counsel. Generally speaking, civilians and
private enterprises that are not aligned with the prosecution will not voluntarily initiate provision
of an extra copy to the prosecution, especially once they receive the foregoing explanation. On
the other hand, law enforcement agencies are predisposed to routinely provide the prosecution
with 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 in
evidence. (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 in
directing defendant to provide to the prosecution a copy of police department records concerning
prosecution witnesses which defendant had lawfully obtained directly from the police department
through a subpoena duces tecum. Instead, the Teal court held that defendant cannot be required
to disclose the subpoenaed documents unless and until he intends to present those documents in
evidence or to present the testimony of witnesses disclosed in the documents. Similarly, Alford
v. Superior Court (2003) 29 Cal.4th 1033, 1046, specifically holds that the prosecution is not
entitled to a copy of any peace officer personnel records which defendant has successfully
obtained 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 records
to the same officers whose records have been disclosed to defendant pursuant to Evidence Code
section 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 party
for the production of books, papers, documents, or records, or copies thereof, the
court may order an in camera hearing to determine whether or not the defense is
entitled to receive the documents. The court may not order the documents
disclosed to the prosecution except as required by Section 1054.3.
Although the prosecution cannot obtain a copy of the subpoenaed documents from the
court or defendant until defendant intends to present them in evidence, the recent decision Kling
highlights the pitfalls for counsel using the SDT process. Kling holds that the prosecution “may
typically” be entitled to disclosure of “the identity of the subpoenaed party and the nature of the
documents sought”, “including the identify of the person to whom the documents pertain . . . .”
(Emphasis added.) “The constitutional rights of the defendant can usually be protected by
redacting those materials that disclose privileged information or attorney work product, by
conducting portions of the in camera hearing ex parte, and by withholding disclosure to the
prosecution of the records produced under the subpoena until the defense has determined that it
intends to offer them in evidence at trial.” (Emphasis added.) “A trial court’s role when
presented with materials produced under a defense subpoena duces tecum to a third party, then, is
to balance the People’s right to due process and a meaningful opportunity to effectively challenge
the discovery request against the defendant’s constitutional rights and the need to protect defense
counsel’s work product. The trial court ‘is not “bound by defendant’s naked claim of
confidentiality’” but should, in light of all the facts and circumstances, make such orders as are
appropriate to ensure that the maximum amount of information, consistent with protection of the
defendant's constitutional rights, is made available to the party opposing the motion for
discovery.” Otherwise, the Supreme Court offered little sympathy for defense counsel’s concern
about being forced to alert the prosecution to potentially damaging evidence: “It is true that
allowing the prosecution to learn that certain records have been subpoenaed from a third party
may cause the defense to face the ‘difficult decision whether to subpoena the records and run the
risk of bringing possibly adverse information to the attention of the prosecutor or to forgo
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seeking information that could be beneficial to his defense. However difficult that decision may
be, 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 to
quash ‘so that evidentiary privileges are not sacrificed just because the subpoena recipient lacks
sufficient 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 subpoena
would be consistent with the presumption that court proceedings are open and with the
prosecution’s right to due process.”3
It is incumbent on defense counsel to distinguish and limit Kling whenever the
subpoenaed documents pertain to the defendant, are sought as the result of confidential
information provided by the client, or otherwise involve privileged information. The holding in
Kling was careful to use qualifiers such as the defendant’s constitutional rights “can usually be
protected”, and the prosecution “may typically” be entitled to disclosure of the identity and
nature of the subpoenaed records. However, the ex parte procedure will be insufficient to protect
defendant’s constitutional rights if the records pertain to the defendant, and/or they were
subpoenaed 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 the
subpoenaed documents, or the person to whom the documents pertain, will disclose privileged
communications. Thus, in these and other circumstances involving privileged communications
(e.g., medical or marital privileges), defense counsel must vigorously fight to distinguish Kling
and prevent disclosure of anything, including the mere identity of the subpoenaed party or nature
of the subpoenaed records.
3
Proposition 9 added new subdivision (c)(1) to Article I, section 28 of the California
Constitution. The new provision provides that the “victim, the retained attorney of a victim, a
lawful representative of the victim, or the prosecuting attorney upon request of the victim, may
enforce the rights enumerated in subdivision (b) in any trial or appellate court . . . .” New
subdivision (b)(4), in turn, gives “victims” the right “[t]o prevent the disclosure of confidential
information or records to the defendant, the defendant’s attorney, or any other person acting on
behalf of the defendant, which could be used to locate or harass the victim or the victim’s family
or which disclose confidential communications made in the course of medical or counseling
treatment, or which are otherwise privileged or confidential by law.” Together, these provisions
appear to provide the prosecution with the potential to assert standing to represent a third party
victim in discovery proceedings under the specified circumstances. Further, People v. Superior
Court (Humberto S.) (2008) 43 Cal.4th 737, 750, holds that a trial court is permitted to entertain
argument from the prosecution concerning whether or not a defendant should be entitled to
obtain third party discovery through a subpoena duces tecum.
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Finally, to the extent that the prosecution learns what the defense has subpoenaed as a
result of the disclosures required by Kling, and the prosecution then subpoenas the same
information, any prosecution attempts to affirmatively use that information at trial should be met
by 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 subpoena
duces tecum, counsel must take care to ensure that the original documents are kept in the
possession of the court clerk at all times if defendant later hopes to introduce the records in
evidence through Evidence Code sections 1560-1562.) Note that subdivision (d) of Penal Code
section 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 courtesy
copy 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 appeal
held that criminal defense counsel could be sued for invasion of privacy where he had read the
complainant’s privileged mental health records and forwarded them to a defense expert after the
custodian of records had mistakenly provided them to defense counsel in response to defendant’s
subpoena duces tecum. Thus, defense counsel must be sure not to read or disseminate any
privileged mental health records concerning any witness without first obtaining a court order
permitting such review or a waiver of the privilege. As long as defense counsel obtains the
documents through a proper court order (i.e., the documents are subpoenaed to court and the trial
court orders their release to defense counsel, with an awareness of the relevant legal standards for
disclosure), 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. In
making these efforts it is vital to act with care and scrupulously follow the requirements of
California Code of Civil Procedure section 206 and Townsel v. Superior Court (1999) 20 Cal.4th
1084.
Defense counsel or an investigator may approach any juror after the jury is discharged
and discuss the case with the juror as long as “the juror consents to the discussion and . . . the
discussion takes place at a reasonable time and place.” (Code Civ. Proc. § 206, subd. (b).) Once
24 hours have elapsed since the verdict was returned, any approach requires, in addition, that the
representative identify the case they wish to discuss, the party they represent, the subject of the
interview, the juror’s “absolute right . . . to discuss or not discuss the deliberations or the
verdict”, “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 to
sanctions.
In attempting to contact jurors after they have left the courthouse following their
deliberations, the defense must attempt to locate jurors without the court’s assistance. Although
it is possible to petition the court for juror identifying information pursuant to Code of Civil
Procedure section 237, it is generally best to avoid asking for such information unless the defense
has 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 the
trial court an opportunity to prohibit counsel from contacting any jurors with or without the
provision of such identifying information. Instructive is Townsel v. Superior Court, supra, 20
Cal.4th 1084, in which the California Supreme Court upheld a trial court order prohibiting the
defense 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 the
jurors more than 10 years after their verdict, it certainly signals trial judges that they have the
authority to prohibit contact with jurors unless the defense can demonstrate that such a
prohibition would be an abuse of discretion. Moreover, given the protracted and time consuming
litigation that would be required to reverse such a prohibitive order, it is simply the wiser course
not to approach a trial court for permission with respect to any jury debriefing issues unless it is
absolutely necessary.
Post-conviction Disclosures of Privileged Matter and Claims of Ineffective Assistance of
Counsel
Prosecutors like to seize on a defendant’s post-conviction claims of ineffective assistance
of counsel as constituting a waiver of the attorney-client privilege, and too many defense counsel
accept such claims as a reason to defend the quality of their representation at trial by cooperating
with the prosecution on appeal or in post-conviction proceedings. However, while a postconviction petition for writ of habeas corpus raising claims of ineffective assistance of counsel
will constitute an implied waiver of the attorney-client privilege, the waiver is limited to the
extent necessary to litigate the claim. (See, Osband v. Woodford (9th Cir. 2002) 290 F.3d 1036,
observing that “a petitioner in a habeas corpus action who raises a Sixth Amendment claim of
ineffective assistance of counsel waives the attorney-client privilege as to the matters challenged
. . . .” See, also, Bittaker v. Woodford (9th Cir. 2003) 331 F.3d 715, holding that the implied
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 (9th
Cir. 1999) 169 F.3d 1189, 1196, which held that “only those documents or portions of documents
relating to the” claim asserted by the former client should be disclosed.)
Moreover, although the implied waiver will allow the attorney general–i.e., the
prosecution’s post-conviction attorney–limited access to materials and information otherwise
protected by the attorney-client privilege, the attorney general is prohibited from using the
materials 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 enforcement
agencies or the trial prosecutor, even in the event of a retrial. (Bittaker v. Woodford, supra, 331
F.3d 715.)
Further, just as the attorney general is not allowed to disclose such information to anyone
else, former trial counsel must continue to protect the confidentiality of the privileged material as
against anyone except the attorney general. Indeed, former trial counsel should never disclose
any such information even to the attorney general, even when challenged concerning the
effectiveness of their representation, except when absolutely required to by a valid court order.
Although Wharton v. Calderon (9th Cir. 1997) 127 F.3d 1201, reversed a District Court order
prohibiting the prosecution from communicating with former trial counsel except at a deposition
at which the defendant’s post-conviction counsel was present, no court can order former counsel
to communicate with the prosecution, even when an ineffective assistance of counsel claim is
raised on appeal, and the overriding duty of a criminal defense lawyer “to maintain 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(e)) leaves no doubt that counsel’s overriding
priority 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 Prosecutor
When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim,” published by
the 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 prosecution
request, prior to a court-supervised response by way of testimony or otherwise, will be
justifiable.”
The duty of counsel to assert the sanctity of the attorney–client privilege in these
situations, even after litigation of an ineffective assistance of counsel claim, was made even more
clear by People v. Ledesma (II) (2006) 39 Cal.4th 641, 694-695, which held that defendant’s
statements to a defense psychiatrist, which were made during “a confidential interview of
defendant for the purpose of assisting defense counsel in the preparation and presentation of a
defense,” remained protected by the attorney-client privilege even after the psychotherapistprivilege had been waived once defendant had placed his mental and emotional state in issue by
presenting the testimony of other mental health experts at trial. Ledesma further held that the
attorney–client privilege was not waived at defendant’s retrial although defendant had previously
brought a habeas challenge on grounds of ineffective assistance of counsel. Under Evidence
Code section 958, there is an exception to the attorney-client privilege to the extent the
communications are relevant to a claim of breach of duty by the attorney, including habeas
proceedings alleging ineffective assistance of counsel. However, the statute “establishes an
exception to the privilege, not a waiver.” (Id. at p. 691.) Since defendant asserted the privilege
in the intervening habeas proceedings, the privilege continued to exist at the subsequent retrial
although the exception applied at the habeas proceedings. “[T]he attorney-client privilege
continues to apply for purposes of retrial after otherwise privileged matters have been disclosed
in connection with habeas corpus proceedings, under Evidence Code section 958.” (Id. at p.
695.)
Page 12 of 35
Prosecution Discovery from the Defense in General
Under Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11, defendant must
disclose the names and reported relevant statements of any witness he or she “reasonably
anticipates [he or she] is likely to call” at trial. The crucial limitations here are that there is no
disclosure requirement (1) except regarding a witness defendant “reasonably anticipates [he or
she] 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 (Thompson
v. Superior Court (1997) 53 Cal.App.4th 480, 483, 488), but not core work product reflecting the
interviewer’s impressions or evaluations of the witness (Penal Code section 1054.6; Code of
Civil Procedure section 2018(c)). On the other hand, there is no duty to take any notes or obtain
a report in the first place (In re Littlefield (1993) 5 Cal.4th 122, 136), although counsel is now
required 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, counsel
should be very careful before determining not to take notes or memorialize a statement. These
considerations are discussed more fully below, under Should the Defense Document the
Statements 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 marked
as an exhibit. It must be emphasized, however, that defendant has a much more limited duty of
disclosure regarding “real evidence” than does the prosecution. In stark contrast to section
1054.3(b), Penal Code section 1054.1(c) requires the prosecution to disclose any relevant real
evidence obtained by the prosecution at any time in the investigation of the offense charged
against defendant, regardless of whether the prosecution contemplates introducing such evidence
at trial.
Defendant does Not have to Disclose Information or Statements Obtained from Prosecution
Witnesses Intended for Use on Cross-Examination
Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn. 14, specifically holds that: “the
defense is not required to disclose any statements it obtains from prosecution witnesses that it
may use to refute the prosecution’s case during cross-examination.” The foregoing holding was
confirmed by the Supreme Court on September 23, 1998, when it remanded Hubbard v. Superior
Court (1997) 66 Cal.App.4th 1163, to the court of appeal and ordered that the opinion be
republished (Supreme Court no. S060927); the republished opinion in Hubbard relied on Izazaga
and squarely held that the trial court exceeded its authority in ordering defendant to disclose the
Page 13 of 35
statement he had obtained from a prosecution witness which he intended to use on crossexamination of the witness. (66 Cal.App.4th 1163, 1167-1170.)
On the other hand, counsel must remember that Penal Code section 1054.3(b) requires
defendant to disclose any “real evidence which the defendant intends to offer in evidence at the
trial.” Thus, defendant must disclose any such evidence which the defense intends to offer in
evidence 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 the
defense nor the prosecution may be required to disclose any statement it obtains from any witness
unless it is the party who presents the testimony of that witness. (Cf. the prosecution must
disclose 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, and
Hubbard v. Superior Court, supra, 66 Cal.App.4th 1163, specifically held that the defense is not
required 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 disclose
information it will use on cross-examination. Thus, defendant is not required to disclose any
information or statements the defense has gathered for use on cross-examination of prosecution
witnesses. For example, where defendant obtains a tape recorded statement from a prosecution
witness and then cross-examines the witness based on prior inconsistent statements contained on
the tape, the prosecution is not entitled to discovery of the tape. Further, where the impeachment
does not involve actually playing the tape or showing the tape or transcript to any witness, the
prosecution should not be allowed to review the tape or transcript under Evidence Code section
356. (People v. Sanders (1995) 11 Cal.4th 475, 519-520.4) Instead, the statute only permits the
prosecution to elicit testimony about the relevant portion of the prior inconsistent statement. Of
course, where a witness (either the prosecution witness or the defense investigator who is
testifying to the prior inconsistent statement) refreshes his or her recollection by reviewing the
tape recorded statement or transcript, the opposing party is entitled to review the same matter
pursuant to Evidence Code section 771(a).
What about witnesses who are considered potential prosecution witnesses but end up not
being called by the prosecution? As long as defendant has a good faith belief that a particular
witness will be called by the prosecution (e.g., the witness has been included on the prosecution’s
4
W hile dicta in Sanders, supra, 11 Cal.4th at p. 520, fn. 11, states that defendant would be required to
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.)
Page 14 of 35
witness list or the witness was identified in police reports disclosed by the prosecution and the
prosecution has not expressly stated that it will not present the witness at trial), then defendant
does 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. Superior
Court, supra, 54 Cal.3d 356, 376, fn. 11.) Once the prosecution has unequivocally stated that it
will not call the witness to testify, however, defendant must disclose his or her intentions to call
the witness, including the witness’s address and any reports of the relevant statements obtained
from the witness, if defendant does, in fact, intend to call the witness and has the witness ready
and available to testify (i.e., the witness has been subpoenaed or defendant is otherwise assured
that the witness will appear, and defendant has evaluated the witness sufficiently to be reasonably
certain 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 disclose
impeachment 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 present
the impeachment or rebuttal witness, or to confront the prosecution witness with the potential
exhibit, then there is no requirement of disclosure. However, once the decision has been made to
effect the impeachment, disclosure cannot be delayed. For example, if counsel has an
impeachment 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 or
written, of the relevant statement obtained from the impeachment witness, once the prosecution
witness has affirmatively denied making the prior inconsistent statement, or counsel has
otherwise determined to present the impeachment witness. (Note that Evidence Code sections
1235 and 770 require, as a foundational matter, that the declarant witness must have been
confronted with the prior inconsistent statement or excused subject to recall before independent
evidence of the prior inconsistent statement is admissible.) Likewise, once the prosecution
witness has, on cross-examination, continued to deny the facts which will be impeached by the
potential defense exhibit, defense counsel must disclose the material to the prosecution before
marking it for identification or confronting the witness with the exhibit. (This should be done
outside 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 reciprocal
discovery provisions enacted by Proposition 115 in Penal Code § 1054 et seq. apply to penalty
phase evidence, requiring defendant to disclose mitigation evidence “at least 30 days prior to the
commencement of the guilt phase of the trial, but . . . trial courts are empowered to exercise
discretion in an appropriate case to defer disclosure of all or part of the defendant’s penalty phase
evidence until the guilt phase has been completed.”
Page 15 of 35
Thus, defendant must always disclose true mitigation witnesses whom the prosecution
has 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 and
address, although a protective order could be sought in certain circumstances. (See, Penal Code
section 1054.7.) The prosecution is also entitled to the “reports” of the “relevant” statements of
the witness.
However, People v. Superior Court (Mitchell), supra, 5 Cal.4th 1229, allows a defendant
to seek a protective order in an attempt to defer disclosure until after the completion of the guilt
phase if defendant can persuade the trial court, in camera, that pretrial disclosure will prejudice
defendant at guilt phase. As specifically held in Mitchell at page 1239:
given a showing that such a continuance is appropriate (based on such
considerations as the probable duration of the guilt phase, the likelihood that a
guilty verdict, with special circumstances, will be returned, and the potential
adverse effect disclosure could have on the guilt phase defense), trial courts
possess discretion to defer penalty phase discovery by the prosecution until the
guilt phase has concluded. On request, the court may permit such showing to be
made in camera.
Defendant should assert potential prejudice anytime she or he can articulate how the
prosecution might attempt to use the discovered information against defendant at guilt phase,
asserting the independent state and federal constitutional guarantees to the privilege against selfincrimination, the attorney-client privilege and the effective assistance of counsel, due process of
law, and the work product doctrine.
Moreover, where defendant is concerned that the prosecution may have utilized the
disclosed evidence to uncover other evidence which it then seeks to offer in its case-in-chief at
penalty phase, defendant should consider a motion ingeniously developed by retired Deputy
Public Defender Kevin Phillips of the Orange County Public Defender’s Office based on
Kastigar v. United States (1972) 406 U.S. 441, 460, which holds that the Fifth Amendment’s
protection against self-incrimination prohibits the prosecution from using “any evidence
obtained 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 to
present at penalty phase, and then the prosecution’s investigation of defendant based on these
disclosures has developed aggravation evidence which the prosecution seeks to present in its
case-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 the
motion anytime it believes the evidence proffered by the prosecution in its case in chief at any
stage 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 to
limit disclosure when necessary to prevent threats or possible danger to witnesses. Thus,
Page 16 of 35
defendant should seek protective orders whenever necessary to protect against the danger that the
prosecution will intimidate a defense witness from testifying.
The rationale underlying the requirement that defendant must disclose his or her
witnesses to the prosecution (at least, the rationale that could survive constitutional scrutiny, as
opposed to the improper purposes of allowing the prosecution to intimidate defense witnesses
and dissuade them from testifying) is to facilitate the search for truth by preventing the
prosecution from being taken by surprise, and to enable the prosecution to be ready to crossexamine 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.) These
goals are satisfied where the prosecution has the discovery in sufficient time before the witness
testifies so that it knows what to expect and can prepare to confront the witness on crossexamination. By contrast, these goals are not furthered by allowing the prosecution to use
penalty phase discovery at any time in guilt phase or its case-in-chief at penalty phase. To the
contrary, allowing the prosecution to use penalty phase discovery at these times would enable the
prosecution to affirmatively use such evidence as a sword against defendant, in violation of the
constitutional prohibitions against compelled disclosure of any evidence which could
conceivably be used to lessen the prosecution’s burden of proof.
No reported California decision has upheld compelled disclosure of discovery by the
defense to the prosecution for the purpose of allowing the prosecution to present the evidence in
its case in chief. Izazaga v. Superior Court, supra, 54 Cal.3d 356, upheld prosecution rights to
obtain discovery of witnesses and witness statements where the defendant reasonably anticipates
he 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 his
or her intentions to present an alibi defense at trial, including “the names and addresses of a
defendant’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 by
defendant so that the prosecution may then use that evidence in its case in chief to convict
defendant 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 constitutional
rights 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 court
further held that “the privilege forbids compelled disclosures which could serve as a ‘link in a
chain’ of evidence tending to establish guilt of a criminal offense . . . .” (Ibid.) These holdings
were 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 1054
et. sequence and amended section 30 of Article I of the California Constitution to provide certain
reciprocal discovery rights, the limited scope of such reciprocal discovery does not affect the
vitality of the foregoing holdings quoted from Prudhomme and Collie. Rather, the concerns
raised in Prudhomme and Collie were echoed by the concurring opinion of Justice Kennard in
Page 17 of 35
Izazaga v. Superior Court, supra, 54 Cal.3d 356, at p. 386, where she reminded that “it would be
impermissible for the prosecution to use, as part of its case-in-chief, evidence gained through
discovery” 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 a
witness (see In re Littlefield, supra, 5 Cal.4th 122, 136; cf. the prosecution’s obligation under
Penal 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, 124
Cal.App.4th 154, 166-168, the defense must disclose the oral reports of the relevant statements
of defense witnesses, regardless of whether defense counsel personally interviewed the witness or
the 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 the
statements of defense witnesses.
Several factors must be considered in evaluating whether or not to document the
statements 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 any
notes or otherwise document the witness’s statement in any way, the failure to document the
substance of the interview will create substantial problems in attempting to impeach the witness
with his or her prior inconsistent statement to the defense. (See, e.g., In re Johnson (1998) 18
Cal.4th 447, 464 [noting that “[t]he investigators fail[ure] to take any notes of [their interview
with the witness] raises questions about the weight to be given their testimony.”) Also, as
pointed 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 own
imperfect and mortal memory is truly astonishing (even during a period when the
district attorneys’ lobby has sought and obtained several victories in a relentless
effort to expand discovery for prosecutors). Moreover, when an attorney
interviews someone alone without a tape recorder, she is in the intolerable
position 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 certainly
preferable “to have a third party present if the lawyer conducts an interview with a prospective
witness, to obtain a written statement from the witness or have an investigator interview the
witness, in order to facilitate effective impeachment with prior inconsistent statements should the
need arise.” Indeed, the court agreed that defense counsel was arguably incompetent in failing to
take such measures before personally interviewing an identification witness who was the
Page 18 of 35
girlfriend of the prosecution witness who had identified defendant as the perpetrator; after the
girlfriend was called as a defense witness but proceeded to also identify defendant, counsel
unsuccessfully attempted to impeach her with her previous oral statements to counsel, who had
interviewed her in court during a recess.)
Other problems which will result from the lack of documentation will include the
inability to recollect the detailed facts described by the witness, which may impair the ability of
the attorney to elicit the important details at trial or make it extremely difficult for a new attorney
subsequently 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 pure
defense witness who is being counted on to testify favorably to the defense, such as a family
member or close friend. Frequently, impeachment of such a witness with a prior inconsistent
statement to a defense investigator will not be persuasive. If the close friend or loving relative
goes sideways in front of the jury, the jury will likely conclude that the previous favorable
statement to the investigator was influenced by the witness’s relationship to defendant, colored
by rose-tinted glasses and a desire to be perceived as supportive of defendant, whereas the
witness’s testimony at trial is more objective and truthful. Further, while some documentation of
the 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 details
by meeting with the witness personally and thoroughly reviewing the subject matter.
On some occasions, the attorney may prefer to interview the witness, either in the
presence or absence of an investigator, which may eliminate the need for any report of the
interview. Counsel must be mindful, however, that any notes taken by the attorney which merely
describe the witness’s statement must be disclosed. (Thompson v. Superior Court, supra, 53
Cal.App.4th 480, 483, 488.) By contrast, work product is not discoverable. (Penal Code section
1054.6; Code of Civil Procedure section 2018.030, subd. (a).) Thus, neither an attorney’s or
investigator’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 in
determining 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 Motors
Corporation (2007) 42 Cal.4th 807, 814, holds that, “When a witness’s statement and the
attorney’s impressions are inextricably intertwined, the work product doctrine provides that
absolute protection is afforded to all of the attorney’s notes.”
Where the interview is reported, care should be exercised in choosing the particular
method by which to report the witness’s statement. There are several different methods of
reporting or documenting a witness’ statement, including oral reports, written reports, written
statements signed by the witness, tape recorded interviews, and reports confined to specific
subjects. Each of these methods have relative advantages. Tape recorded statements are the
most accurate method of documenting exactly what the witness is stating, and will also illustrate
whether or not the interviewer has influenced the statement. On the other hand, it may be
Page 19 of 35
difficult to confine the scope of a tape recorded interview to a particular subject, and disclosure
of the tape may educate the prosecution to information which is not only irrelevant to the
proffered testimony of the witness but damaging to defendant in other areas. Still, where the
witness is typecast as a neutral witness on a key point (e.g., other violent criminal activity under
factor (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 testify
inconsistently at trial; if the statement is not helpful, the defense will not call the witness and
neither the witness nor the prosecution will be entitled to discovery of the tape.
Written statements signed by the witness share similar advantages, including constituting
a persuasive form of impeachment. Further, written statements may be confined to specific
subjects 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 the
scope of a tape recorded statement by first interviewing the witness off tape, then discussing only
certain subjects on tape.) However, witnesses may refuse to be interviewed on tape or to sign a
written statement. In these circumstances, the most thorough reporting method that can be
undertaken is the “ordinary” report in which the investigator documents everything the witness
says. The ability to impeach the witness at trial is dependent on having an investigator present
during these interviews and either writing the report or immediately confirming the complete
accuracy of the entire report if it is written by someone else. (The investigator will be most
comfortable, and more persuasive as a witness, where she or he writes the report.) Impeachment
by reference to these reports will also prove to be more persuasive where the jury learns that the
only reason the report was written by the investigator was because the witness refused to be
interviewed 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. Many
times, defendant will present a witness to testify only on a particular topic. Since Penal Code
section 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 the
testimony of the witness on direct examination. In interviewing the witness, however, the
investigator typically attempts to learn everything the witness knows that could potentially be of
significance–after all, we need to know the bad with the good–and needs to report the good and
bad to defense counsel. For example, a family member might prove to be a great mitigation
witness at penalty phase concerning childhood abuse but also have personal knowledge of
defendant’s guilt of other violent criminal activity. Defendant, however, should not be forced to
disclose to the prosecution irrelevant statements which can affirmatively be used by the
prosecution to damage defendant in areas beyond the scope of the direct examination of the
witness.
Once a single report has been completed describing the relevant and irrelevant in a single
document, defendant’s only recourse is to edit the report, which will ultimately require the
approval of the trial judge. Hopefully, the trial judge will faithfully apply the law and authorize
the excision of the irrelevant portions of the statement. Some situations make for easy editing,
Page 20 of 35
such as where the witness has knowledge of both guilt and penalty issues but is only being called
to testify at penalty phase; in that situation, only the penalty phase information should be
disclosed. Other situations may prove to be more problematic.
Another method of insuring that a report describes only the relevant statements of a
witness is to prepare separate reports, each confined to a specific topic. These topic limited
reports, which should be identified as such so as not to be misleading, do not require any editing
and simplify the trial judge’s task in assessing whether defendant has properly disclosed the
relevant statement of the witness. Counsel can honestly and unequivocally represent that the
topic limited report contains everything that has been reported concerning the statements of the
witness 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 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 was created or preserved. Thus, avoiding any
documentation of the witness’ statement will not absolve counsel of the responsibility to educate
the prosecution of the relevant statements obtained from the witness, or at least the essence of the
relevant statements. As a result, Roland effectively eliminates the possibility of taking the
prosecution completely by surprise. On the other hand, oral reports share an advantage similar to
those discussed above concerning topic limited reports in that it facilitates limiting disclosure to
that which the prosecution is entitled and no more, that is, to the relevant portions of the
statement obtained from the witness. The primary tactical difference between oral reports and
topic limited reports is that counsel is the “author” of the oral disclosure to the prosecution
whereas the investigator is the author of a topic limited report. The disadvantage of oral reports
compared to topic limited reports, however, is that there is absolutely no documentation with
which to impeach a witness where the only report was oral, whereas impeachment is possible
with a topic limited report. Whether or not potential impeachment is an issue worth preparing
for is dependent on the nature of the witness, and is generally imperative with the possible
exception of a pure defense mitigation witness such as certain family members or close friends of
defendant, as discussed above, ante, p. 8.
Finally, a brief comment is in order concerning the investigator’s role in the selection of
the 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]nvestigative
reports shall be submitted to a customer at such times and in such manner as has been agreed
upon between the licensee and the customer.” There is no reason these same rules should not
apply to public defender investigators, especially since many public defender offices require a
private investigator’s license in order to work as a public defender investigator, and since there
are no other regulations specifically applicable to public defender investigators. Thus, it is the
attorney’s responsibility to select the reporting method, and to do so before the interview is
Page 21 of 35
conducted. By following that practice, neither the investigator nor the attorney can be accused of
choosing 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 obtains
from a witness must be disclosed when the defense intends to present the testimony of that
witness. (Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 483, 488.) But is there any
duty to preserve notes before any decision is made to have the witness testify? Although there is
no case directly addressing this issue in the context of a defendant’s interview of defense
witnesses, 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 the
investigating 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 not
violate the discovery provisions of Penal Code section 1054.1 et. sequence because (1) the notes
were made by the officers to assist in the accurate preparation of their police reports; (2) the
notes were later destroyed according to departmental policy; and (3) “[t]he destruction was done
in good faith,” that is, without malice and with no intentions of seeking “an unconscionable
advantage over the defendant.’” Note that, since the notes were destroyed before a criminal
complaint was filed, they were necessarily destroyed before any court order was made requiring
their 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 the
validity of any statutory discovery scheme (Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d
82, 93 S.Ct. 2208]), the same principles must be applied to notes taken by defense attorneys or
investigators. Thus, since there is no right to prosecution discovery except as provided by
statute, and since Penal Code section 1054.3 does not grant the prosecution any discovery rights
unless and until the defendant has formed the intention of calling the witness to testify, the
prosecution cannot be entitled to discovery of any notes which have been destroyed before any
such decision was made, as long as (1) the notes were made by the investigator or attorney to
assist in the accurate preparation of their reports; (2) the notes were later destroyed according to
departmental policy; and (3) “[t]he destruction was done in good faith,” that is, without malice
and 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 be
destroyed. Fundamentally, counsel should uniformly follow the same policy in order to avoid
any 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 could
be used to impeach the investigator’s report. On the other hand, although it is common
knowledge that notes are generally not meant to be complete records of everything the witness
said 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 ethical
consideration is consistency.
Some Ethical Considerations in Preparing Witnesses to Testify
In the absence of a specific court order prohibiting counsel from showing one witness the
statement of another witness, counsel is free to do so. Further, it will not be an abuse of
discretion for a trial court to refuse to order counsel “not to show one defense witness the
statement of another witness.” (People v. Loker (2008) 44 Cal.4th 691, 733.)
Moreover, it bears emphasis that counsel’s duty to provide effective assistance requires
more than merely presenting the testimony of defense witnesses. Instead, counsel must prepare
the witnesses effectively before putting them on the witness stand. Although Belmontes v. Ayers
(9th Cir. 2008) 529 F.3d 834, 861, cert. gtd. and reversed on other grounds in Wong v. Belmontes
(2009) ___ U.S. ___ [130 S.Ct. 383], did not suggest that defense counsel “should have coached
the 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 what
kind of information the jury would find helpful and what kind of testimony would not be
relevant.” Although the Supreme Court of the United States reversed the decision, finding that
Mr. Belmontes was not prejudiced by his counsel’s failings, it did not discuss counsel’s duty to
discuss the witness’s testimony with the witness before presenting his testimony. See, also,
James v. Schriro (9th Cir. October 12, 2011) ___ F.3d ___ [2011 Daily Journal Daily Appellate
Report 15165, 2011 WL 4820605], reversing a death sentence based on ineffective assistance of
counsel in several respects, including the failure to discuss the testimony of petitioner’s adoptive
mother 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 of
material 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 an
expert 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 that
unless we educate them not to provide anything to the prosecution or anyone else without
permission from defense counsel. Experts must be aware that their information is protected by
the attorney–client privilege among other bases, which may include the work product doctrine
and/or psychotherapist–patient privilege in certain cases. Even where the
psychotherapist–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 by
two nontestifying psychiatrists who were appointed by the court to prepare confidential
communications continued to be protected by the attorney–client privilege despite the fact that
defendant 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 sure
that the expert is aware that all of his or her work is confidential, protected by the attorney–client
privilege, and may not be disclosed to anyone without the express authorization of defense
counsel; further, counsel should instruct the expert to report any attempts by anyone to learn
anything from the expert.
The rules regarding discovery concerning defense experts emanate from Penal Code
section 1054.3. The prosecution is not entitled to any discovery concerning an expert who has
been retained by the defense, although the expert may have examined defendant and written a
report concerning his or her examination, unless and until the defense has decided to call the
witness to testify at trial, even where such decision is not made until less than 30 days before
trial. (Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.) Once the defense has
disclosed the identity of an expert that will be called to testify at trial, whether guilt or penalty
phase, the prosecution will be entitled to discovery of any reports by the expert, including the
results 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 a
defense expert’s raw written notes recording “factual determinations of the expert from
observations 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 or
initial 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 be
discoverable, 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 or
questions. For example, because of the danger that public dissemination of neuropsychological
testing protocols may lead to the “manipulation of test performance”, the official policy
statement of the National Academy of Neuropsychology on the subject of Test Security cautions
against the distribution of test data to non-psychologists and suggests that a “neuropsychologist
may respond [to an attorney’s request for disclosure of test protocols and/or test data] by offering
to send the material to another qualified neuropsychologist, once assurances are obtained that the
material 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 at
http://www.nanonline.org/NAN/Files/PAIC/PDFs/NANTestSecurityUpdate.pdf.) The National
Academy 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 health
professionals.
Defense counsel must be careful not to create problems by prematurely disclosing the
name 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, and
provided their resumes and telephone numbers with permission to contact them. He also
requested that his experts prepare written reports. In the trial court, the prosecution complained
that the reports had not yet been provided. The public defender responded that they were being
prepared but he did not yet have them, and he didn’t know whether he would actually call the
experts to testify until he read their reports. The angry trial court was tyrannical: it ordered the
defense to provide reports from the experts within a one week deadline if not sooner, even if they
were 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 were
completed; in addition, although one report was disclosed on the final deadline date, it had been
completed six days before. The trial court excluded the testimony of the experts whose reports
were not disclosed by the deadline and fined the deputy public defender $500 for violating its
discovery orders. The court also excluded expert testimony that was described in a supplemental
report that was not completed until after the deadline, ruling that it should have been included in
the original report.
The court of appeal affirmed, essentially holding that, although the reports had not yet
been completed, they were “reasonably accessible” because counsel had already voluntarily
requested the written reports and could have prevailed upon the experts to complete them by the
deadline (formerly reported in 75 Cal.App.4th at p. 798); and the court held that defense counsel
failed to meet his “‘burden of demonstrating that the information subject to discovery is
unavailable’” (ibid., quoting from Penal Code § 1054.7). The court emphasized that defense
counsel was not ordered to obtain written reports or have the experts memorialize their opinions
but, rather, defense counsel “voluntarily ordered expert reports and repeatedly advised the court
they were forthcoming.” (Id. at p. 797.) In response to counsel’s claim that he had not yet
determined whether or not to call the experts as witnesses, the court held that “the designation as
a trial witness shows the party ‘“reasonably anticipates”’ calling him or her” and that the fact that
counsel referred to the opinions of two of his experts during in limine motions further supported
the 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 the
holdings therein. Still, defense counsel would be wise to prevent such a quandry from
developing.
Lessons to Learn:
Ž Since the defense is under no obligation to disclose the name of any potential witness
unless and until we “reasonably anticipate” we are likely to call the witness to testify at trial, do
not disclose the witness’s identity before then. In other words, do not disclose an expert’s name
just because she or he is a potential witness. In fact, one should never disclose the name of an
expert until one knows what opinion the expert will testify to, because only then will counsel be
able 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 on
nondisclosure.
Ž If we affirmatively litigate in limine motions concerning the admissibility of our
expert’s testimony, and we prevail on the motion, then it is reasonably likely that we will call the
witness 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 still
cannot 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).
Ž One may question the wisdom of requesting a comprehensive or extensive written
report written report from an expert. A verbal communication with the expert will inform
defense 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 Defender
Office) can afford the several hundred or thousands of extra dollars it will cost to obtain a written
report, especially where the report serves absolutely no purpose for the defense. Where the
expert is instructed not to prepare a written report because of monetary considerations, it is
incumbent on counsel to explain to the expert that the reason is because of the lack of funds to
pay for the report. (See, People v. Lamb (2006) 136 Cal.App.4th 205, in which counsel advised
the 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 avoid
discovery.” 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 facilitate
negotiations or to convince the prosecution to dismiss the case, and needs to present the
prosecution with a written report (e.g., polygraph) to facilitate such negotiations. Even in such
cases, counsel should only request a written report after having already orally communicated with
the expert and determining that a written report will assist in the negotiations.
Ž However, given the duty to disclose the relevant oral reports of any testifying witness
under Roland v. Superior Court, supra, 124 Cal.App.4th 154, 166-168, and the inevitable
prosecution 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 report
documenting (1) an inventory of any and all tests the expert administered to defendant; (2) the
results of those tests, including both the raw test answers and any computer generated scoring
results; and (3) a concise (e.g., single sentence) description of the expert’s bottom line
conclusion. All of this information must be disclosed to the prosecution anyway; thus, including
this minimal information in the “report” does not provide the prosecution with any additional
information but does take the steam out of their predictable cross-examination. Indeed, in People
v. Lamb, supra, 136 Cal.App.4th 205, the court of appeal upheld the trial court’s imposition of
sanctions based on defense counsel’s failure to apprise the prosecution of the information he had
orally obtained from the defense accident reconstruction expert, which should have been
disclosed 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 defense
counsel. [He also] explained his theories to defense counsel. . . . [H]e had formed his opinion as
to the cause of the accident . . . , and he conveyed that opinion orally to defense counsel.” The
expert did not provide his notes to defense counsel, but “he conveyed the information contained
in these notes in general terms to defense counsel.” Without deciding whether disclosure of the
notes were required or was protected under the work product doctrine, the appellate court agreed
that defense counsel had engaged in “gamesmanship” designed to hide discovery. Thus, Lamb
illustrates the need to provide discovery to the prosecution of an expert’s oral reports to defense
counsel, 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 of
the materials that were provided to the expert for review, although the “source” information
relied upon by the expert need not be disclosed until after the completion of direct examination
under 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, and
the decision must be made based on the tactical situation presented in the particular case,
including a consideration of the particular prosecutor and trial judge.
Ž As pointed out by Grace Suarez, In re Serra (9th Cir. 1973) 484 F.2d 947, held that the
great Tony Serra was properly found in contempt for instructing his retained expert not to prepare
any 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 write
no report and that this was good trial practice to avoid reciprocal discovery.” Thus, Mr. Serra
was victimized by his choice of words. Similarly, in People v. Lamb, supra, 136 Cal.App.4th
205, the expert personally advised the court “that written reports are sometimes not prepared in
order to avoid discovery.” The court of appeal and the trial court were not pleased by this
explanation, which appeared inconsistent with defense counsel’s statement that no written
“report was prepared because defendant could not afford to have one written.”
Ž Hines v. Superior Court, supra, 20 Cal.App.4th 1818, 1821-1824, holds that the
defense is not required to disclose drafts of the final written report which reflect the expert’s
thought processes or initial conclusions, nor reports of nontestifying experts relied upon by the
testifying expert.
Ž 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 are
simply objective facts, and it is hard to imagine any test being administered without
documentation of the test results; otherwise, how would the expert convince anyone what the
results 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 for
experiments, comparisons (e.g., ballistics, handwriting) and scientific tests, which must be
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disclosed and should always generate reports. Although the statute also speaks of disclosing “the
results of physical or mental examinations,” the reference should be understood as referring to
objectively observable facts, such as would be described in medical records or the scoring of
such mental health examinations as neuropsychological tests. (Cf. People v. Reyes (1974) 12
Cal.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, in
contrast 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 Jail
Sign-in Logs or Through Social Contacts
People v. Coddington (2000) 23 Cal.4th 529, 603-606, overruled on other grounds in
Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, found the prosecution committed
error–albeit harmless–in having obtained confidential information concerning the identity of
nontestifying experts retained by the defense, cross-examining testifying experts concerning the
nontestifying experts’ evaluations of defendant, and commenting on the testifying experts’ lack
of knowledge of the findings by the nontestifying experts. Essentially, the prosecution painted a
picture that the defense had first hired experts who reached conclusions the defense did not like
before presenting the testimony of other experts who were never told about the contrary findings
by 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 had
been examined by other experts who had not been called to testify” violated the work product
privilege codified in Code of Civil Procedure section 2018 (at p. 606), which is “applicable in all
criminal as well as civil proceedings . . .” (at p. 605). “Work product encompasses the
investigation of defendant’s mental state to assess both the favorable and the unfavorable aspects
of the case. It also encompasses counsel’s impressions and conclusions regarding witnesses who
would be favorable and those who would not be so. [Citation omitted.] It follows that the
party’s decision that an expert who has been consulted should not be called to testify is within the
privilege.” (At p. 606.) The court was not impressed by the prosecution’s attempt to evade the
privilege by learning of the nontestifying experts through jail visiting records. “Regardless of
how the information is obtained, . . . if a party were permitted to use information about pretrial
investigation that reveals opposing counsel’s thought processes and reasons for tactical decisions,
thorough investigation would be discouraged.” (Ibid.)5
5
Note that a somewhat different but related issue was discussed in People v. Gray (2005)
37 Cal.4th 168, in which physical evidence had been made available to a defense expert for
forensic examination. The prosecution was permitted to present the testimony of law
enforcement officers that they had shown the evidence (fingerprints, hair and serological
samples) to defense experts, and that such evidence was still available to be examined by the
defense. On appeal, the Supreme Court found no error because “[i]nformation that forensic
evidence was made available to the defense does not constitute comment on the ‘exercise of’ the
work product privilege.” (At 208.) On the other hand, the Court found that, assuming an
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Defendant’s Statements to the Expert Are Not Discoverable and Should be Deleted from
Any Reports Disclosed to the Prosecution
Given the exclusion of a defendant’s statements from prosecution discovery under Penal
Code section 1054.3, the prosecution is not entitled to discover defendant’s statements to an
expert, at least not until the attorney–client privilege has been waived in that respect by having
the expert actually testify to his or her opinions which are based on a consideration of
defendant’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
objection (which was never made at trial) should have been sustained, defendant did not suffer
prejudice. Beware, however, that Justices Chin and Baxter wrote concurring opinions expressing
the view that Coddington did not prevent the prosecution from affirmatively presenting the
testimony 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 criminalist
that she preserved a portion of a blood sample in order to permit it to be examined by the
defense, 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 crossexamination 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 remained
available for testing by the defense. But although the Court also held that the attorney-client
privilege 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 Code
section 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 expert
about whether a portion “of defendant’s blood sample had been ‘released for independent
analysis.’” The expert answered that the sample had been released to the defense investigator. In
response to defendant’s objections, the prosecutor asserted “that the question was appropriate
because the defense had attacked the credibility of the prosecutor’s blood-sample analyst but had
not offered any evidence of a different blood analysis.” The trial court, however, “ruled that the
prosecutor’s question improperly sought defense work product, . . .” and, as noted, the Supreme
Court assumed the prosecutor committed misconduct but found that it was not prejudicial to
defendant. Perhaps the difference between the permissible testimony in Zamudio and the
impermissible examination in Wallace is that the prosecutor in Zamudio elicited testimony from
a prosecution witness concerning the prosecution’s actions in handling the item of forensic
evidence, whereas the prosecutor in Wallace attempted to examine the defense witness
concerning 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 product
privilege, right to a fair trial or the right to counsel from allowing the prosecutor to present
testimony that a recovered bullet had been in the possession of a defense expert. Once again, the
foregoing evidence in Scott was presented through the testimony of a prosecution witness, not a
defense witness. (At p. 466, observing that the defense did not present any witnesses.)
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psychologist’s report despite the identification of the psychologist as an expert witness whom
defendant was going to call as a witness at trial. Likewise, Andrade v. Superior Court (1996) 46
Cal.App.4th 1609, 1614, ruled that the prosecution could not obtain discovery of defendant’s
statements to a psychologist which the psychologist relied upon in forming her opinion, although
the defense was presenting the witness to testify at trial. Once again, the Andrade court relied on
the 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 during
the penalty phase of the capital trial but in advance of the expert’s testimony, for disclosure of the
source materials relied upon by the defense psychiatrist or psychologist, including the unredacted
notes of defendant’s statements to the expert. Jones distinguishes Rodriguez and Andrade on the
grounds that they involved pretrial discovery, whereas Jones involved discovery of the materials
during the same penalty phase at which the expert was about to testify. Thus, Jones does not
authorize pretrial discovery of source materials, materials the expert has relied upon, or any
statements defendant made to the expert. Instead, these materials may only be disclosed in the
same phase of the trial at which the expert is about to testify, and only in the discretion of the
trial court if the judge believes it will help avoid a continuance between the direct and crossexamination of the expert.)
Defense Testing of Forensic Evidence: Confidentiality of the Defense Expert’s Identity
and the Results of the Defense Examination
Not only does the attorney–client privilege preclude disclosure of defendant’s statements
to the expert, it likewise prohibits the prosecution from learning the identity of the defense expert
to whom physical evidence in the possession of the prosecution is being released for confidential
testing, as long as the prosecution has already been able to conduct its own testing or there
remains a sufficient sample to permit additional testing by the prosecution. (Prince v. Superior
Court (1992) 8 Cal.App.4th 1176, 1180-1181.) In Prince, the prosecution obtained at least four
semen samples and defendant applied for a court order releasing one sample to a confidential
expert for PCR DNA testing. The trial court issued the order but required defendant to disclose
the name of the lab and the report to the prosecution. The court of appeal, however, issued a
peremptory writ prohibiting such disclosure, observing that the prosecution would obtain such
information if the results favored defendant and he chose to present the expert; if not, defendant
would not call the expert as a witness and the prosecution would not be entitled to discovery of
the name of the expert or the results of the examination. (At p. 1180.) The court distinguished
People v. Cooper (1991) 53 Cal.3d 771, because Cooper involved the denial of “a defense
request 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 violated
by an order which required the police to allow a defense expert to perform ballistics tests inside
the police department on evidence in the possession of the police, without notice to the
prosecution, 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 confidential
forensic analysis of a blood sample which had already been analyzed by the prosecution because
the 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 held
that if the defense wanted to conduct its own examination under these circumstances, it must
reveal the result to the prosecution.
Further, counsel should beware of the concurring opinions of Justices Chin and Baxter in
People v. Gray, supra, 37 Cal.4th 168, discussed in footnote 4, ante, in which these justices
opined that the prosecution should be allowed to affirmatively present the testimony of defense
experts who conducted forensic examinations of physical evidence in the possession of the
prosecution.
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 address
the question of the prosecution’s ability to examine materials provided to a defense expert for
review 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 to
discovery of materials relied upon the expert which were not authored by the expert (addressing
reports of other, nontestifying, experts relied upon by the testifying expert). Rather, the
prosecution’s right to obtain discovery of information furnished to an expert is based on
Evidence Code sections 721, subdivision (a)(3) (concerning materials relied upon by an expert as
a basis for his or her opinion), 802 (permitting examination of an expert concerning the matter
upon which his or her opinion is based), 804 (permitting examination of persons whose
statements form a basis of a testifying expert’s opinion), and 771 (permitting a party to examine
anything relied upon by any witness to refresh his or her recollection). There is little doubt that a
prosecutor is entitled to review the materials relied upon by an expert in forming his or her
opinion. However, the prosecution has no right to review those materials before the witness
begins to testify. Instead, the timing of such disclosure is generally a tactical matter for counsel
to 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 the
source materials provided to the defense psychiatrist before the psychiatrist testified in order to
avoid the need for a continuance after the psychiatrist completed his direct examination. (Once
again, the opinion stresses that no pretrial discovery was allowed, but only disclosure during the
same portion of the trial in which the expert was going to testify, and only for the purpose of
obviating the need for a continuance.) Obviously, delaying disclosure of such material until the
completion of direct examination will surely lead to a recess before the commencement of crossexamination, so it may be wise to provide disclosure in sufficient time to enable the prosecutor to
prepare 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 experts
illustrates the potential use of “pyramiding,” as observed by Gary Sowards. For example, where
expert one administers the MMPI or a Rorschach test to the client, but expert one does not testify
at trial, the prosecution is not entitled to pretrial discovery of the test results even if expert one
advises the testifying expert of the test results. Of course, as noted above, once the second expert
testifies, the prosecution will be able to cross-examine the testifying expert about the information
provided by the non-testifying expert (Evidence Code section 802), and will be allowed to call
the 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 first
expert’s examination is not helpful, and the second expert is not exposed to those results, there is
no 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 or
psychologists 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 more
psychiatrists or psychologists to examine a defendant once a doubt has been declared about
defendant’s competency to proceed. But what about prosecution attempts to have their own
expert 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 Sixth
Amendment rights to the extent necessary to permit the prosecution to obtain an examination of
the defendant’s condition. The defendant may preserve his rights by refusing to cooperate, but
comment on that refusal is permissible.”
In the context of the penalty phase of a capital prosecution, People v. McPeters (1992) 2
Cal.4th 1148, 1190, held that, once defendant presented two psychiatrists at penalty phase who
testified concerning his mental condition, he “waived his Fifth and Sixth Amendment rights to
the extent necessary to permit a proper examination of that condition.” Thus, it was proper for
the trial court to grant the prosecution’s motion to have defendant examined by a prosecution
psychiatrist before testifying in rebuttal. Further, defendant’s rights were not violated by
allowing 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 psychiatrist
describing defendant’s refusal to submit to the psychiatric examination which was ordered in
response to defendant’s expert mental health testimony at penalty phase. Carpenter also
affirmed the trial court’s instruction to the jury that the refusal “‘may be considered by you. If
you find that the defendant’s refusal to answer questions or to be interviewed was willful, you
may take that fact into consideration when weighing the opinions of the defense experts in this
case.’”
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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 of
his diminished capacity defense, defendant here has waived his privilege against selfincrimination, at least to the extent of foreclosing any objection to the testimony of a courtappointed psychiatrist relating to the diminished capacity issue.”
It must be noted, however, that Danis, McPeters, Carpenter, and Coddington all
addressed trials which occurred before the enactment of Penal Code section 1054.5(a), which
now provides that “[n]o order requiring discovery shall be made in criminal cases except as
provided in this chapter.” (See, also, Penal Code section 1054(e), providing “that no discovery
shall occur in criminal cases except as provided by this chapter, other express statutory
provisions, or as mandated by the Constitution of the United States.”) Emphasizing this
distinction, Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1116, emphatically held that the
prosecution had no right to obtain a court order for defendant to be examined by a mental health
expert of the prosecution’s choice, even after defendant disclosed that he would be presenting a
mental health defense and provided the name and reports of the psychologist he was going to
present as an expert witness. The Court held that “we find the trial court’s order granting the
prosecution access to petitioner for purposes of having a prosecution expert conduct a mental
examination is a form of discovery that is not authorized by the criminal discovery statutes or any
other statute, nor is it mandated by the United States Constitution. Although we have in the past
found 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 the
exclusivity guidelines in section 1054, subdivision (e), we are no longer free to create such a rule
of criminal procedure, untethered to a statutory or constitutional base.”
Citing its decision in Verdin, People v. Wallace (2008) 44 Cal.4th 1032, 1087-1088, held
that it was error for the trial court to authorize an expert of the prosecution’s choice to evaluate
defendant even after defendant affirmatively presented the testimony of two clinical
psychologists at penalty phase; thus, it was also error to permit a prosecution expert to testify that
defendant refused “to cooperate with the court-ordered psychiatric examination.” As such,
Wallace expanded on Verdin, applying Verdin’s prohibition against pretrial prosecution mental
health examinations of defendant to prohibit midtrial examinations as well.
Unfortunately for criminal defendants, the Legislature responded to Verdin by amending
subdivision (b) to Penal Code section 1054.3, providing that “the court may order that the
defendant 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 the
criminal action or juvenile proceeding through the proposed testimony of any mental health
expert . . . .” However, on the request of the defendant, “the trial court must make a threshold
determination that the proposed tests bear some reasonable relation to the mental state placed in
issue by the defendant in a criminal action or a minor in a juvenile proceeding. For the purposes
of this subdivision, the term ‘tests’ shall include any and all assessment techniques such as a
clinical 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 Code
section 730 provided an “alternate source of authority” for the mental health examination of
defendant 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 to
examinations by two prosecution mental health experts because defendant presented the
testimony 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 special
circumstance murder case, the court of appeal held that the defendant, having expressly raised the
claim that he may not be competent to proceed, could be ordered to submit to a mental health
examination by a prosecution expert for the purpose of evaluating his mental competency to
assist in his defense. The court held that an order for such discovery was not prohibited by Penal
Code section 1054, subdivision (e) because competency proceedings under Penal Code section
1368 are not criminal proceedings; instead, they “‘are governed generally by the rules applicable
to civil proceedings.’” The court also held that defendant has no Sixth Amendment right to have
defense counsel present during the prosecution’s examination, although it implied that the trial
court may exercise its discretion to permit counsel to be present as an observer. However, the
court held that, given the civil nature of the proceedings, an order to submit to a mental
competency 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 ‘audio
tape’”, 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 the
examination . . . .’” Further, any statements defendant makes to the prosecution mental health
expert are protected by a judicially declared rule of immunity, which precludes their use at
defendant’s trial on the substantive charges, including any sanity phase. On the other hand, if
defendant refuses to submit to the examination, sanctions may be imposed, including disclosure
of 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 defendant
raised the issue of mental retardation, the prosecution was permitted to have its own mental
health expert examine the defendant for the purposes of evaluating whether or not he was
mentally retarded. However, any psychological or psychiatric examination to be conducted by a
prosecution expert must be reasonably related to the same mental condition tendered by the
defense. (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 be
subject to examination by prosecution experts. (People v. McPeters, supra, 2
Cal.4th at p. 1190; Baqleh v. Superior Court, supra, 100 Cal.App.4th at pp. 488493; People v. Danis, supra, 31 Cal.App.3d at pp. 786-787.) However, those
examinations 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 any
objections may be raised before testing begins. Then, upon a defense objection
to specific proposed prosecution tests, the trial court must make a threshold
determination that the tests bear some reasonable relation to measuring [the
mental condition raised by defendant], including factors that might confound or
explain the testing, such as malingering. Otherwise, there is a danger that
defendants will be improperly subjected to mental examinations beyond the
scope of the precise issue they have tendered and their resulting waiver of
constitutional rights.
(Ibid.; emphasis added.)
Thus, defense counsel must make sure that examinations for mental retardation are not so
broad as to allow fishing expeditions for personality disorders such as antisocial personality
disorder or psychopathy. Unless such limitations are ordered by the court, counsel must carefully
evaluate whether or not to allow a prosecution or court expert to examine a defendant under the
guise of evaluating whether defendant is mentally retarded.
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