State v. Pawlyk

Utter, J.

(dissenting)—I have little sympathy for the defendant. Nonetheless, I dissent.

The criminal rules do not authorize discovery of the results of a defense psychiatrist's examination unless the defense intends to rely upon the expert at trial. This court should not rewrite the rules of criminal discovery in the middle of a murder trial because counsel was entitled to rely on those rules in planning strategy for this case. Because insanity defenses are only successful in about 1 percent of the cases in which they are asserted, 6 no need *481 exists to correct any imbalance by ad hoc amendment of the criminal rules.

The majority justifies its amendment of the criminal rules and its rejection of the attorney-client privilege by suggesting that nontestifying defense psychiatrists are a uniquely accurate source of information on the sanity of defendants. See majority, at 474-75. The majority's holding that the attorney-client privilege does not protect defense consultations with its nontestifying psychiatrist virtually guarantees that this supposedly unique source of accurate information will dry up. After today's decision, counsel will often refrain from consulting experts who might be inclined to find sanity in their clients.

The attorney-client privilege should apply here. The majority's holding greatly interferes with defense counsel's ability to effectively advise clients needing expert assistance. But it procures no benefit for the State save additional evidence obtained from an unwary defendant in this case. No precedent requires this result and our court rules, properly read, preclude it.

Most courts have recognized that the attorney-client privilege must apply to defense psychiatrists not relied upon at trial. The American Bar Association has recommended that the attorney-client privilege attach to communications between a psychiatrist and a client, but that courts find a waiver when the defense relies on the expert at trial or exhibits bad faith by securing evaluations of every available expert. We should adopt the ABA Criminal Justice Mental Health Standards on the privilege issue and recognize that the criminal rules do not authorize the discovery sought in this case.

I

The criminal rules and the statute governing the insanity defense provide a satisfactory framework for obtaining information about a defendant's mental condition when the *482 defendant pleads insanity. See CrR 4.7; RCW 10.77. Neither the statute nor the rules authorize the disclosures sought in this case.

The statute establishes the prosecutor's right to have a psychiatrist approved by him or her examine the defendant. RCW 10.77.060(1); CrR 4.7(b)(2)(viii). Moreover, the prosecutor has the right to the names and addresses of any psychiatrist the defense calls as a witness along with copies of that psychiatrist's reports or testimony. CrR 4.7(g); CrR 4.7(b)(1). The prosecution has not availed itself of its right to have a psychiatrist of its choosing interview the defendant. Instead, the prosecutor seeks discovery of a defense psychiatrist who the defense does not plan to call at trial.

CrR 4.7(g), which governs the prosecution's discovery rights, only authorizes discovery of statements of experts "which the defendant intends to use at a hearing or trial." (Italics mine.) The omission of any authority to compel discovery of defense experts which the defense does not choose to rely upon at trial contrasts sharply with the rule governing defense discovery of prosecution experts. That rule requires disclosure to the defense of "any reports or statements of experts made in connection with the particular case, including results of . . . mental examinations . . (Italics mine.) CrR 4.7(a)(1)(iv).

These rules clearly are reciprocal in the sense that they obligate both the defense and the prosecution to provide some information regarding mental examinations. They do not, however, make the defense's obligations equal to those of the prosecution. Rather, the rules require the prosecutor to disclose expert reports "made in connection with the . . . case", i.e., including reports which will not be used at trial, while the rules expressly limit the defense's obligation to disclosure of material "which the defendant intends to use at.. . trial." (Italics mine.)

As we have noted, CrR 4.7 is analogous to Fed. R. Crim. P. 16. State v. Hutchinson, 111 Wn.2d 872, 878 , 766 P.2d 447 (1989). Rule 16 allows both the defense and the prosecution to take advantage of discovery. See Hutchinson, at *483 878 (citing 2 C. Wright, Federal Practice § 254, at 64-65 (1982)). Rule 16 limits the prosecutor's discovery rights in the same manner as CrR 4.7(g); it limits discovery of the "results or reports of . . . mental examinations" to those documents "which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call . . .". Fed. R. Crim. P. 16(b)(1)(B). See CrR 4.7(g). Accordingly, it does not authorize disclosure of a defense psychiatrist's interviews when the defense does not intend to call the psychiatrist to testify. United States v. Layton, 90 F.R.D. 520, 522 (N.D. Cal. 1981).

Our decision in Hutchinson should compel us to hold that our rules mean what they clearly say; the prosecutor has no right to discovery of statements which the defense does not intend to use at trial. State v. Hutchinson, supra. In Hutchinson , we interpreted CrR 4.7(g), the rule governing discovery of defense experts. We unanimously concluded that the rule did not require defense lawyers to prepare reports for use by the prosecution. Hutchinson , at 876-79. Our reasoning was simple. Since the rule did not state that the trial court could compel the discovery sought, no authority existed. We relied on rules of statutory construction which provided that clear language does not permit interpretation. Hutchinson , at 877. Similarly, CrR 4.7 does not authorize the discovery of a nontestifying defense expert. Therefore, Hutchinson requires us to hold that the criminal rules do not authorize the disclosure sought in this case.

The majority recognizes the implications of Hutchinson and holds that CrR 4.7(g) does not authorize the discovery sought in this case. Majority, at 472. The majority also recognizes that the trial court cannot order discovery exceeding the scope of the rules. This principle has commanded the allegiance of every member of this court. See Hutchinson (discovery of expert reports not yet made unavailable because rule does not authorize it); State v. Yates, 111 Wn.2d 793 , 765 P.2d 291 (1988) (majority holding that CrR *484 4.7(b)(2)(x) authorizes discovery, dissent arguing that it does not; neither side arguing for inherent trial court authority to exceed scope of the rules). The drafters of the rule "explicitly rejected the notion of 'unconditional' discovery" when it drafted the provisions we are interpreting. Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 77 (West Pub'g Co. ed. 1971).

The majority avoids the conclusion compelled by its correct interpretation of the rules governing disclosure of expert testimony by arguing that CrR 4.7(b)(2)(x) authorizes the discovery sought here. This rule allows "inspection of . . . documentary evidence in defendant's possession". CrR 4.7(b)(2)(x). Our precedent precludes interpreting this general provision so broadly that it makes the restrictive language in the specific rule governing discovery of defense experts meaningless. Provisions in a criminal rule must be read together in such a way as to make no language superfluous. Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 288 , 494 P.2d 216 (1972) (courts must interpret statutes so that "no portion ... is superfluous, void, or insignificant"); Hutchinson , at 877 (rules of statutory construction apply to court rules). The majority voids the phrase limiting the trial court's authority to require disclosure of defense experts' reports to statements of experts "which the defendant intends to use at a hearing or trial." (Italics mine.) CrR 4.7(g). Indeed, the majority's "construction" makes all of CrR 4.7(g), the rule governing discovery of defense experts' documents, superfluous.

The policy reasons supporting disclosure of defense experts' opinions which the defense does not plan to use at trial do not justify rewriting the rules of criminal procedure in the middle of a murder trial. The majority argues that "the defendant is the sole source of evidence on his sanity". Majority, at 475. Therefore, the prosecution operates at a disadvantage with respect to the insanity defense and the court must remedy this by providing the prosecution with copies of the reports of defense-retained experts. Majority, at 475.

*485 The defendant is not the sole source of information about his sanity. The prosecution is free to call people who knew Mr. Pawlyk to testify. The majority's statement to the contrary contradicts our holding that all information about a defendant's life is relevant to the insanity defense. State v. Huson, 73 Wn.2d 660, 665-67 , 440 P.2d 192 (1968) (admission of prior conviction upheld), cert. denied, 393 U.S. 1096 (1969).

Nor is the nontestifying defense psychiatrist the only source of information regarding the defendant's sanity with access to the defendant. The prosecution may have its psychiatrist examine the defendant in order to reach its own conclusions about the defendant's sanity.

Nor should we assume that the defense psychiatrist not called to testify has accurate evidence, while the prosecution's expert and the defense's testifying expert provide inaccurate information. Cf. majority, at 474-75. Rather, most experts will give their candid assessment of the defendant's sanity. Those that do not will be exposed on cross examination. The fact that experts vary in their assessments does not indicate that the expert consulted but not used by the defense has the most "accurate" evidence. Our interpretation of the rules must reflect faith in the adversary process, not a conviction that the prosecution is always right and must be helped lest the defense prevail. In any case, after today's holding, many defense attorneys will not consult experts likely to tell them news they do not want to hear.

Nor does the prosecution operate at a great disadvantage when an insanity defense is raised. In fact, the prosecution has an advantage in resisting an insanity defense usually unavailable to it in a criminal trial, a favorable burden of proof. The defense must prove insanity by a preponderance of the evidence. RCW 10.77.030(2). Moreover, juries are apt to be skeptical of an insanity defense. The defense is only successful in about 1 percent of the felony trials in which it is raised. Freeman & Roesch, Mental Disorder and the *486 Criminal Justice System: A Review, 12 Int'l J.L. & Psychiatry (1989).

Reading the criminal rules properly does not prevent the prosecution from contesting the defendant's insanity plea. It only prevents the prosecution from taking advantage of the strategic opportunity presented by contacting the psychiatrist the defense had consulted.

The majority's holding interferes with counsel's ability to advise the defendant properly. The defense attorneys in this case did what good attorneys should do when advising clients about the insanity defense. They procured the opinions of two experts with contrasting points of view.

The State has a significant interest in encouraging complete pretrial evaluation of a possible insanity defense. A defense lawyer who has consulted two experts is more likely to spot a frivolous claim and recommend a more fruitful strategy. On the other hand, the State has an interest in hearing meritorious insanity defenses well presented with the weaknesses and difficulties thought out ahead of time. The State would rather treat than imprison the criminally insane. See generally RCW 10.77. A trial court may commit any insane defendant who is dangerous to others to a mental institution for a period equal to the prison term he or she would have received had the insanity defense been rejected, and the court can civilly commit an insane criminal for an even longer period thereafter. RCW 10.77.020(3).

The majority's holding will discourage counsel from consulting any expert which it anticipates will prove skeptical of its insanity defense. This frustrates the purposes of the adversary process which defense counsel should serve.

My analysis of the criminal discovery rule, CrR 4.7, is wholly independent of my analysis of the scope of the attorney-client privilege in the wake of Bonds. State v. Bonds, 98 Wn.2d 1 , 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). We could reverse the trial court solely on the grounds that the criminal rules do not authorize the discovery sought and not reach the question of attorney-client privilege. Bonds does not preclude a proper reading *487 of the criminal rules. Because that case dealt with the decision to call a defense psychiatrist as a witness, we had no occasion to address the applicability of the rules of discovery to psychiatric testimony in that case.

II

The attorney-client privilege should shield the client's communications with the defense psychiatrist from disclosure as well. State v. Bonds, supra, does not require this court to hold that the privilege does not apply to the reports of a defense expert on insanity not called as a witness. Nor does policy support the majority's extension of Bonds beyond the facts of the case.

As the majority notes, the defendant in Bonds called the psychiatrist to testify. We unanimously agreed that the trial court's decision to allow the psychiatrist to testify was proper. Five members of this court stated that the attorney-client privilege should not extend to the testimony of a psychiatrist when the issue of insanity is raised by the defense. Bonds , at 22. Four Justices concurred in holding that Bonds' psychiatrist's testimony was admissible, but pointed out that the majority's reasoning was unnecessarily broad. Bonds , at 22, 29-30 (Utter, J., concurring on this issue). Because the defense had put the psychiatrist on the stand, traditional waiver principles would suffice to defeat the attorney-client privilege in Bonds. See Martin v. Shaen, 22 Wn.2d 505 , 156 P.2d 681 (1945); Bonds , at 29 (Utter, J., concurring on this issue).

We have held that statements "not necessary to the decision of any issue in the . . . case" are dicta which do not control future cases. Gilmour v. Longmire, 10 Wn.2d 511, 516 , 117 P.2d 187 (1941). Moreover, we have delineated the precise holding of Bonds in Hutchinson . We unanimously agreed that Bonds "held that a psychologist who had examined a juvenile and testified in his favor at a decline hearing could be called by the State to testify at the juvenile's trial as an adult to rebut the insanity defense." (Italics mine.) Hutchinson , at 882. It follows that the *488 broader statements upon which the majority relies are dicta.

We have in the past recognized that overly broad general statements do not bind this court. In Peterson v. Hagan, 56 Wn.2d 48 , 351 P.2d 127 (1960), we repudiated statements in prior opinions that the Fourteenth Amendment does not apply to legislation enacted under the police power. We held that "general expressions in every opinion are to be confined to the facts then before the court" and are "limited in their relation to the case then decided and to the points actually involved." Peterson , at 53 (citing Cohens v. Virginia, 19 U.S. 264 , 5 L. Ed. 257 (1821) and five Washington cases). Our decision in Peterson compels the narrow characterization of the holding we unanimously accepted in Hutchinson .

Because the majority carefully considered its statements in Bonds , I agree that this dicta, although not binding, must be given substantial weight. The rationale offered in Bonds , however, conflicts with precedent and must be repudiated.

The attorney-client privilege exists in order to allow the client to communicate freely with the attorney without fear of compulsory discovery. State ex rel. Sowers v. Olwell, 64 Wn.2d 828 , 394 P.2d 681 , 16 A.L.R.3d 1021 (1964); Pappas v. Holloway, 114 Wn.2d 198, 203 , 787 P.2d 30 (1990) (privilege encourages free and open communications by assuring that communications will not be disclosed to others directly or indirectly). The attorney-client privilege extends to the agents of an attorney. State v. Jones, 99 Wn.2d 735, 749 , 664 P.2d 1216 (1983) (psychiatrist); United States v. Kovel, 296 F.2d 918, 920-23 (2d Cir. 1961) (accountant); Brown v. State, 448 N.E.2d 10, 14 (Ind. 1983); 8 J. Wigmore, Evidence § 2301, at 583 (1961). A defense psychiatrist is an agent of the attorney. Jones, 99 Wn.2d at 749-50 . Accord, Miller v. District Court, 737 P.2d 834 , 838 (Colo. 1987); People v. Lines, 13 Cal. 3d 500, 510 , 531 P.2d 793 , 199 Cal. Rptr. 225 (1975); Houston v. State, 602 P.2d 784, 789-90 (Alaska 1979); State v. Pratt, 284 Md. 516, 520-21 , 398 *489 A.2d 421 (1979). If it did not extend to an attorney's agent, an attorney could not adequately advise clients where expert assistance was needed.

Judge Weinstein, a distinguished jurist and author of a treatise on evidence, explained that, "Only a foolhardy lawyer would determine tactical and evidentiary strategy in a case with psychiatric issues without the guidance and interpretation of psychiatrists . . .". United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1047 (E.D.N.Y. 1976), aff'd, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958 (1977). Accordingly, Judge Weinstein agreed that the privilege should protect a defense psychiatrist's communications with the client, just as it protects communications with other agents. Edney, at 1048. The proposition that the attorney-client privilege applies to a client's communications with an agent of the attorney appears to have universal acceptance. 8 J. Wigmore, at 583.

Historically, the privilege has always protected an accused criminal's consultations with an attorney in contemplation of a defense. See Hazard, An Historical Perspective on the Attorney-Client Privilege, 66 Calif. L. Rev. 1061 , 1062 (1978). Exceptions, however, sometimes allow disclosure of physical evidence or confidences which prevent enforcement of a judicial order or pertain to a crime about to be committed. See, e.g., Dike v. Dike, 75 Wn.2d 1 , 448 P.2d 490 (1968) (attorney must disclose whereabouts of a mother who thwarted an adverse custody award by kidnapping her child); State ex rel. Sowers v. Olwell, supra (attorney must turn over knife given him by client to the prosecution, but the prosecution may not state that it came from the lawyer).

The Bonds majority did not rely on any traditional exception to the attorney-client privilege. Instead, it analyzed the attorney-client privilege "as though it resulted in a clear loss of information that otherwise would be available to a court." Saltzburg, Privileges and Professionals: Lawyers and Psychiatrists, 66 Va. L. Rev. 597 , 609-10 (1980). "Application of the attorney-client privilege to *490 communications such as those involved here, however, puts the adversary in no worse position than if the communications had never taken place." Upjohn Co. v. United States, 449 U.S. 383, 395 , 66 L. Ed. 2d 584 , 101 S. Ct. 677 (1980) (upholding application of privilege to Upjohn employees' communications to counsel). See also Saltzburg, supra at 610-11.

The majority applied a balancing test to the issue. It balanced the benefits of the privilege against the public interest of a full revelation of all the facts. Bonds , at 21.

This court should not accept the use of this balancing test because such a test would require attorneys to divulge any critical secret of a client which the prosecutor could not otherwise discover. The attorney-client privilege is based on a judicial policy choice that the interests of the adversary system require lawyers and their agents to be able to keep their clients' secrets, even if the public has a great interest in the information and it cannot be obtained from other sources. Accord, Admiral Ins. Co. v. United States Dist. Court, 881 F.2d 1486, 1494-95 (9th Cir. 1989). Moreover, once the privilege is eroded, the information will dry up.

The rationales which support the attorney-client privilege generally apply fully to consultations with a psychiatrist to evaluate an insanity defense. If a client had to fear that statements to the psychiatrist or the psychiatrist's impressions would be revealed even if defense counsel concluded that the expert would not be helpful, many lawyers would only consult experts apt to find insanity.

The Bonds majority relied principally upon the logic of a law review article by Professor Saltzburg. Bonds , at 21. But the American Bar Association has found the position defended by Professor Saltzburg unpersuasive because it confuses the rationales supporting the physician-patient privilege with those supporting the attorney-client privilege. American Bar Association, Criminal Justice Mental Health Standards 86 n.20 (1989). Professor Saltzburg explained the rationales supporting the attorney-client *491 privilege and then failed to consider their applicability in the portion of his article which supports the majority's conclusion. Importantly, Saltzburg explained that the privilege creates a zone of privacy in which information is developed which would not otherwise exist. Saltzburg, supra at 609-10. Indeed, he cites our decision in Olwell to support his point. In Olwell , we held that a defense attorney must turn over a murder weapon given him by the client, but need not reveal the source. State ex rel. Olwell v. Sowers, supra. Saltzburg derives from this case the principle that the privilege enables an attorney to create new information, but it does not enable counsel to hide preexisting information. Saltzburg, supra at 611. This principle would forbid discovery of any defendant's statements to a defense psychiatrist.

Saltzburg, however, ignores the rationales associated with the attorney-client privilege when he discusses his reasons for allowing discovery of defense psychiatrists. Saltzburg, supra at 635-42. Instead of considering the fact that the information created by confidentiality would not be available without it, he creates an argument which suggests that the privacy rationale associated with the doctor-patient privilege does not apply when the insanity defense is raised. See Saltzburg, supra at 634-35. Cf. Saltzburg, supra at 609-10. The Bonds court summarized and relied on the unconvincing rationales Saltzburg offered for its conclusion. Bonds , at 21. The court approved of Saltzburg's argument that the defense psychiatrist is likely to be more accurate on the issue of insanity than the prosecutor-approved psychiatrist, that the defendant might benefit from tailoring his responses during repeated examinations, and that the defendant will cooperate more fully with the defense psychiatrist.

The fact that juries only acquit 1 percent of the felons who plead insanity suggests that Saltzburg's unsupported empirical observations are not correct. The court also stated that the defense examination occurs at a time much *492 closer to the offense. Bonds , at 21. No empirical data supports that statement, Saltzburg qualified it in his article, and other commentators doubt its accuracy. Saltzburg, supra at 638 n.141; Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 Calif. L. Rev. 1567 , 1680 (1986). Because the defense must announce an insanity defense within 10 days of arraignment in Washington, it is unlikely that a significant period of time will elapse between the defense consultations and the prosecution examination. See CrR 4.2(c). Even if Saltzburg's unsupported empirical observations were correct, they could not be accepted by a court committed to the attorney-client privilege generally. The defense attorney is likely to have a more accurate view of his client's guilt or innocence; the defendant is apt to tailor his response during repeated questioning; the defendant will cooperate more fully with the defense attorney. Yet, the privilege still protects the lawyer from testifying about the client's statements. The law has traditionally considered this necessary in order to allow free consultation with the defense attorney and the attorney's agents.

Even if the defendant is today more likely to be candid with the defense-retained psychiatrist, he or she will not be tomorrow. Once a defendant is advised that communications with the psychiatrist will be discoverable, even if counsel decides not to put the psychiatrist on the stand, the client's incentive to be especially candid with the defense-retained psychiatrist will disappear.

The Bonds majority supported its dubious and unnecessary conclusion with the statement that "every act of the defendant's life was admissible" once he pleaded insanity. Bonds , at 22. The court took this statement out of its context in State v. Huson, 73 Wn.2d 660, 665-67 , 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096 (1969). The Huson court upheld various trial court evidentiary rulings on grounds of relevancy. Huson involved no claim of privilege and its citation in Bonds was inappropriate. Taken literally, the statement that "every act of the defendant's life was *493 admissible" means that no attorney-client privilege exists at all in a case involving an insanity defense and that unconstitutionally procured evidence could be admitted as well. The majority should limit this dicta rather than reemphasize it, lest the lower courts feel compelled to order discovery of all of a client's communications with his or her attorney or conclude, incorrectly, that no constitutional rights exist once insanity is pleaded. Cf. majority, at 463. 7

Most courts have recognized that the attorney-client privilege must apply to defense psychiatrists not relied upon at trial. Haynes v. State, 103 Nev. 309, 317 , 739 P.2d 497 (1987); Miller v. District Court, 737 P.2d 834 , 836 (Colo. 1987). See, e.g., United States v. Alvarez, 519 F.2d 1036, 1045-47 (3d Cir. 1975); Houston v. State, 602 P.2d 784 (Alaska 1979); People v. Lines, 13 Cal. 3d 500, 510 , 531 P.2d 793 , 119 Cal. Rptr. 225 (1975); State v. Pratt, 284 Md. 516 , 398 A.2d 421 (1979); State v. Kociolek, 23 N.J. 400, 414-17 , 129 A.2d 417 (1957). The American Bar Association has developed standards adequate to meet the real problems which might support deviation from the majority rule. See American Bar Association, Criminal Justice Mental Health Standards, Std. 7-3.3(b), at 80 (1989). Under these standards, the attorney-client privilege attaches to communications between a client and a defense psychiatrist. The defense waives that privilege if it puts that psychiatrist on the stand or if it exhibits bad faith by securing evaluations from every available qualified expert. We should repudiate the dicta in Bonds and adopt the ABA standards.

Ill

Since the majority amends the criminal rules and concludes that the attorney-client privilege does not apply here, it addresses the work product doctrine. I agree that defense counsel's "opinions, theories or conclusions" are not *494 subject to disclosure. I cannot, however, agree that the doctrine affords a criminal defense attorney narrower protection than that afforded a lawyer in a civil case.

Courts have recognized that the work product doctrine is more important in the context of a criminal proceeding than in the context of a civil proceeding. E. Epstein & M. Martin, The Attorney-Client Privilege and the Work-Product Doctrine 105 (2d ed. 1989). Defense counsel has a particular need to "work with a certain degree of privacy and plan strategy without undue interference" when deciding whether to pursue an insanity defense, because defense counsel must decide whether to rely on an insanity defense within 10 days of arraignment absent a showing of good cause. CrR 4.2(c). See Coburn v. Seda, 101 Wn.2d 270, 274 , 677 P.2d 173 (1984).

Generally, the work product doctrine protects witness statements gathered by a lawyer in preparation for litigation absent a showing of particular need. Hickman v. Taylor, 329 U.S. 495, 508-14 , 91 L. Ed. 2d 451 , 67 S. Ct. 385 (1947). It also protects the work product of the attorney's agents in a criminal case. United States v. Nobles, 422 U.S. 225, 238-39 , 45 L. Ed. 2d 141 , 95 S. Ct. 2160 (1975). A defense psychiatrist is an agent of the attorney. State v. Jones, 99 Wn.2d 735 , 664 P.2d 1216 (1983). Under Washington law, "there is no distinction between attorney and nonattorney work product." Heidebrink v. Moriwaki, 104 Wn.2d 392, 396 , 706 P.2d 212 (1985).

Because the prosecution has not had its own psychiatrist interview Pawlyk, it cannot claim a compelling need for this information. We should not assume a priori that such an interview will not produce enough useful information to enable the prosecution to adequately prepare its case. Cf. majority, at 477 n.4.

The majority's rejection of the applicability of CR 26(b)(4)(B) suggests that the prosecution need not show exceptional circumstances to obtain discovery of defense experts not testifying at trial. See majority, at 477. CR 26(b)(4)(B) requires a party seeking discovery of another *495 party's expert to show that facts or opinions on the same subject cannot be obtained by other means.

In spite of the fact that the reasons for the work product doctrine are most compelling in the criminal context, the majority refuses to apply this principle here. It relies principally on our statement in State v. Gonzalez, 110 Wn.2d 738, 744 , 757 P.2d 925 (1988) that the civil rules apply only to civil cases. Majority, at 476. In Gonzalez , we admitted, in the sentence following the sentence cited by the majority, that "the civil rules can be instructive in matters of procedure for which the criminal rules are silent." Gonzalez, 110 Wn.2d at 744 (citing 4A L. Orland & D. Dowd, Wash. Prac., Rules Practice §§ 6101, 6142 (3d ed. 1983) and Mark v. KING Broadcasting Co., 27 Wn. App. 344, 349 , 618 P.2d 512 (1980), aff'd on other grounds, 96 Wn.2d 473 , 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982)). We declined to apply a civil rule in Gonzalez because it directly contradicted a criminal rule governing the same matter. Gonzalez, 110 Wn.2d at 744 . Moreover, we justified not applying the particular civil rule at issue in that case with the observation that "the scope of discovery allowable . . . in criminal cases historically has been more limited than in civil cases." Gonzalez, 110 Wn.2d at 744 . The majority's argument makes discovery broader in the criminal context than in the civil context by narrowing the work product doctrine and conflicts with Gonzalez for that reason. This court has applied civil rules to criminal cases in the past, so we are not free to quote the sentence on which the majority relies out of context. See State v. Scott, 92 Wn.2d 209 , 595 P.2d 549 (1979) (CR 60 controls in a criminal case). The case law on this point taken together supports application of the civil rules where the criminal rules are silent, but not when the criminal rule speaks directly to the point at issue. It also supports applying civil rules when doing so does not broaden criminal discovery.

The criminal rules are silent on the issue of whether the work product doctrine shields the opinions of defense *496 experts. CrR 4.7(f)(1) expressly applies only to "investigating or prosecuting agencies", not to defense attorneys. The drafters intended the words "investigating or prosecuting agencies" to apply to the prosecution, not the defense. Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure 83 (West Pub'g Co. ed. 1971) ("This section affords protection to a legitimate interest of the prosecution") (italics mine). The subsection's reference to an exception for obligatory disclosures of the prosecution and its omission of any reference to the corresponding section requiring disclosures by the defense shows that the drafters never envisioned this section as a complete statement of defense counsel's rights to invoke work product protection. See CrR 4.7(f)(1) (citing CrR 4.7(a)(1)(iv) but failing to cite CrR 4.7(g)). In all probability, the drafters never thought that the defense would need to invoke the work product doctrine, since a correct interpretation of the rules precludes disclosure of nontestifying defense experts. See CrR 4.7(g).

Even the majority's theory that CrR 4.7(f)(1) governs the scope of the work product doctrine available to defense attorneys without help of the civil rules or the common law cannot justify the conclusion that a defense expert's opinions are discoverable. If the majority is correct that the term "investigating agency" includes the defense, then CrR 4.7(f)(1) protects the opinions of the defense psychiatrist, who is an agent of the attorney. See CrR 4.7(f)(1). This rule does not exempt any defense work from its protection at all. It only exempts material discoverable under subsection CrR 4.7(a)(1)(iv). CrR 4.7(a)(1)(iv) applies only to the prosecution's work. CrR 4.7(f)(1) does not exempt the material discoverable under CrR 4.7(g), the section governing the defense's discovery obligations for expert testimony. Cf. majority, at 478. Moreover, even if the court were to amend CrR 4.7(f)(1) to somehow refer to CrR 4.7(g), as the majority does in its opinion, see majority, at 478, it still would not exempt a nontestifying defense psychiatrist's work from work product protection. The majority concedes *497 that CrR 4.7(g) does not make a defense expert's opinion discoverable when the defense does not plan to rely on that expert at trial. Majority, at 472, 478.

The work product doctrine protects the material sought here absent a showing of need. The prosecution may be able to show such need if it retains a psychiatrist who does not get Mr. Pawlyk's cooperation. Until such an event occurs, I cannot agree that the trial court may compel disclosure of the statements of a nontestifying defense psychiatrist. I agree, however, that the trial court must screen the material to avoid disclosure of the attorney's thoughts while preparing for litigation.

Conclusion

The criminal rules do not authorize the discovery sought in this case. We should not amend the criminal rules in the middle of a murder trial.

In addition, the attorney-client privilege and the work product doctrine apply here. The American Bar Association has developed well defined exceptions to the attorney-client privilege as applied to defense experts. These exceptions are not applicable here and the privilege should forbid revelations of the defendant's confidential communications with the psychiatrist.

Smith and Guy, JJ., concur with Utter, J.

Reconsideration denied March 7, 1991.

Freeman & Roesch, Mental Disorder and the Criminal Justice System: A Review, 12 Int'l J.L. & Psychiatry 105, 108 (1989).

The majority cites State v. Music, 79 Wn.2d 699, 711-12 , 489 P.2d 159 (1971), vacated on other grounds, 408 U.S. 940 (1972), for this proposition as well. Music also does not address any question of privilege.