holding that attorney-client privilege extended to defendant’s psychiatric expert witness was waived when he took the stand and testified and that, therefore, his notes and reports from examinations were discoverable
How later courts described this case
- holding that attorney-client privilege extended to defendant’s psychiatric expert witness was waived when he took the stand and testified and that, therefore, his notes and reports from examinations were discoverable
- concluding privilege can be waived
- attorney-client privilege extended to psychiatrist waived when defendant called psychiatrist to the stand
- in which we held that the State could use notes and reports made by appellant’s expert witness because appellant waived his attorney-client privilege by calling the expert to testify
Written by the judges who cited it.
The opinion
APPELLANT’S MOTION FOR REHEARING
TOM G. DAVIS, Judge.
On original submission, a panel of this Court held that the trial court was not in error when it allowed the prosecutor to examine the notes of appellant’s expert psychiatric witness, Dr. David R. Baker.
Dr. Baker was hired by appellant to aid in the preparation of a sanity defense. He examined appellant several times over a two month period prior to trial. Baker made notes during such examination. At trial, Baker testified that in his opinion, appellant was insane at the time of the offense. On cross-examination, the prosecutor asked Dr. Baker the following questions:
“Q. Doctor, you have said that you do have notes that you have taken down in connection with your examination. Is that correct?
“A. Yes. I took notes on all the four occasions that I visited with Mr. Ballew.
“Q. All right. And you do have those notes present with you now. Do you not?
“A. Yes, I do.
“Q. All right. And I take it you have refreshed your memory from those notes prior to your testifying here today? Have you not?
“A. Yes.”
The court ordered Dr. Baker to provide his notes to the prosecutor. Such notes were then used extensively for purposes of cross-examination.
The instant cause does not involve the “Gaskin Rule” because Dr. Baker was called as a witness by appellant. See Bizzarri v. State, 492 S.W.2d 944 (Tex.Cr.App.). Therefore, the State was not entitled to the notes under the holding in Gaskin v. State, 172 Tex.Cr.R. 7 , 353 S.W.2d *243 467 . Further, the State was not entitled to the notes under the “use before jury rule.” Under such rule, which applies to any witness, a party is entitled to inspect, upon timely request, any document, instrument or statement which has been used by the other party before the jury in such a way that its contents become an issue. See White v. State, 478 S.W.2d 506 (Tex.Cr.App.); Collins v. State, 39 Tex.Cr.R. 441 , 46 S.W. 933 . 1 In the instant cause, the notes were not used by appellant before the jury during the course of Baker’s direct examination.
The right to demand inspection of notes used by a witness to refresh his memory has been limited by us to writings used by the witness on the stand. Such limitation has been criticized by text writers and courts of other jurisdictions. In 1 R. Ray, Texas Evidence, 3rd ed., Sec. 553, pp. 524-526, it is written:
“The writing which is used to refresh the recollection of the witness must on demand be shown to the opponent for his inspection and use on cross-examination so that he may have an opportunity to test the credibility of the witness and see if it could properly or does refresh his recollection. This right to demand inspection has usually been limited by the Texas Courts as well as those of other states to writings used by the witness on the stand. This seems strange since the reasons appear equally applicable to writings used by the witness to refresh his memory before he testifies. Newer cases in other jurisdictions have so extended the right, and that is now the rule in the federal courts. ...” 2
The Illinois Supreme Court, in People v. Scott, 29 Ill.2d 97 , 193 N.E.2d 814 (1963), determined that a witness’ notes, which are used to refresh memory, must be tendered to the opposing counsel even though they are reviewed prior to taking the witness stand. In Scott the witness did not review any memoranda while on the stand or in the courtroom, rather, the police officer who was testifying refreshed his recollection by reading his superior’s police report the preceding day. The Scott court said:
“Had reference been made by the officer to the captain’s report during his testimony for purposes of refreshing his recollection, we assume no question could be raised as to the necessity for its exhibition to defense counsel for his examination and use during cross-examination. We see no substantial or logical difference between that situation, and the one where the witness examine[d] the refreshing document prior to stepping into the courtroom. The opportunity for mischief or error is equally present regard *244 less of where or when the inspection of the document occurs. As Wigmore states: ‘For though there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great.’ (3 Wigmore on Evidence, 3rd ed. sec. 762, p. 111).” Id. at 821.
Likewise, in Commonwealth v. Marsh, 354 Mass. 713 , 242 N.E.2d 545 (1968), the Massachusetts Supreme Court stated:
“It is an artificial distinction to allow inspection of notes used on the stand to refresh recollection and to decline it where the witness inspects his notes just before being called to the stand.” Id. 242 N.E.2d at 551 .
Other jurisdictions have arrived at a similar conclusion when considering the right of access to a writing used by a witness to refresh his recollection prior to the time that the witness took the stand. See e.g. Z. v. Superior Court of Los Angeles, 3 Cal.3d 797 , 91 Cal.Rptr. 594 , 478 P.2d 26 (1970); People v. Estrada, 54 Cal.2d 713 , 7 Cal.Rptr. 897 , 355 P.2d 641 (1960); People v. Olson, 59 Ill.App.3d 643 , 16 Ill.Dec. 660 , 375 N.E.2d 533 (1978).
The fact that other jurisdictions and textbook writers have criticized a rule we have embraced does not, standing alone, furnish reason for abandonment of such rule. However, if precedent does not have some sort of reasonable underpinning, we should not bury our heads in the sand when such criticism is voiced.
While the notes in the present case were not used by Dr. Baker before the jury, their contents became an issue after the witness stated that he had referred to such notes before testifying in order to refresh his present recollection. Testimony showing Baker’s act in referring to the notes was the functional equivalent of Baker having actually referred to his notes in the presence of the jury for the purpose of refreshing his present recollection. It was then permissible for the State to inspect the notes in order to test the credibility of Baker and determine if the notes could properly or did refresh his recollection.
There was no error in the court allowing the State to obtain Dr. Baker’s notes for purposes of cross-examination after he testified that he had refreshed his memory from such notes prior to testifying.
The appellant’s motion for rehearing is overruled.
ONION, P.J., dissents.
DALLY, J., concurs in results.
APPELLANT’S MOTION FOR REHEARING
. See also Jackson v. State, 166 Tex.Cr.R. 348 , 314 S.W.2d 97 ; Palacio v. State, 164 Tex.Cr.R. 460 , 301 S.W.2d 166 . Under such circumstances, the “use before the jury rule” is applicable with regard to access by the opposing party to the document. Sewell v. State, 367 S.W.2d 349 (Tex.Cr.App.).
. Federal Rules of Evidence, Rule 612, 28 U.S. C.A., governs the circumstances under which an adverse party is entitled to inspect and use for cross-examination a writing which a witness uses in order to refresh his present recollection. That rule provides in part:
“Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh his memory for the purpose of testifying, either—
“(1) while testifying, or
“(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
“an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.... ”
The California Code of Evidence since 1967 has mandated that “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party.” Cal. Evidence Code Sec. 771 (West). See also People v. Silberstein, 159 Cal.App.2d Supp. 848 , 323 P.2d 591 (1958).