Amicus Curiae Brief — Smith v. Murray

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NO. 85-5487

In The

Supreme Court of the Gnited States

October Term, 1985

MICHAEL MARNELL SMITH,

Petitioner,

ALLYN R. SIELAFF, DIRECTOR

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

MOTION FOR LEAVE TO FILE AND

BRIEF FOR THE NEW JERSEY DEPARTMENT OF THE

PUBLIC ADVOCATE AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

LINDAG. ROSENZWEIG * ALFRED A. SLOCUM,

Director ACTING PUBLIC ADVOCATE

Division of Mental Department of the

Health Advocacy Public Advocate

Department of the CN-850

Public Advocate Trenton, New Jersey 08625

(609) 292-1780

* Counsel of Record

THE COPY CENTER, INC. 615 Chestnut Street Philadelphia, PA 19106 (215) 928-1900

TABLE OF CONTENTS

MOTION FOR LEAVE TO

AS AMICUS CURIAE

INTEREST OF AMICUS

SUMMARY OF ARGUMENT

ARGUMENT

SINCE EXPERT PSYCHIATRIC

ASSISTANCE PLAYS A PIVOTAL

ROLE IN CRIMINAL PROCEEDINGS,

THE MAXIMUM OPPORTUNITY FOR

CONSULTATION AND INTERACTION

WITH THE EXPERT MUST BE AFFORDED

COUNSEL AS PART OF THE INTERNAL

STRATEGIC PROCESS OF THE DEFENSE..

ACCURATE PSYCHIATRIC EXPERT

OPINION CANNOT BE PROVIDED

UNLESS THE DEFENDANT IS FREE

TO FULLY AND OPENLY DISCLOSE

HIS HISTORY AND HIS THOUGHTS

AS AN EXPRESSION OF THE SIXTH

AMENDMENT RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL, NEW

JERSEY HAS FOR NEARLY THREE

DECADES, GRANTED THE DEFENSE

THE LATITUDE TO FULLY EXPLORE

AND DEVELOP PSYCHIATRIC DE-

FENSES WITHOUT THE FEAR THAT

UNFAVORABLE MATERIAL SO

OBTAINED CAN BE USED AGAINST

THE DEFENDANT

CUR sm Ec cc cece cece cece eeeeesseeeesess

TABLE OF AUTHORITIES

CASES

Page

A.L.U., In re, 192 N.J. Super. 480,

471 A. 2d 63 (App. Div. 1984).... iv

Addington v. Texas, 441 U.S. 418,

ILO S oO 6ccccccecccoceccecececeeseeetts 10

Ake v. Oklahoma, 470 U.S. -- ,

LOS S.Ct. LOGT (L9E3) «ccccccccccs iii,7,8,

9,10,11,

13,14

Anderson v. Bank, L.R. 2 Ch. D

644 (Jessel, M.R. 1876).......... 34

Anonymous, Skin. 404, 90 Eng. Rep.

BED Cee BEDS) co cccccccccccscccocs 33

Barefoot v. Estelle, 463 U.S. 880

ERED SOS SSEE SECO CES ESO SECC LOSCS 15

Berd v. Lovelace, Cary 88, 21 Eng.

Be SS Te AST) ccscocccccccccs 32

Chirac v. Reinicker, 24 U.S. 280

FRESE P ce ceeeccocccescceccocecooes 47

Dennis v. Codrington, Cary 143,

21 Eng. Rep. 53 (Ch. 1580)....... 32

Estelle v. Smith, 451 U.S. 454

FRDERP oe ccccee-ceccescecceececons 15,47

48,49

Fisher v. United States, 425 U.S.

2} tae ek eee heb Oe ORO OSE e 42,43

TABLE OF AUTHORITIES

CASES

Page

Geraghty, In re, 68 N.J. 209,

343 A. 2d 737 (1975)... eee eeeeees iv

Greenough v. Gaskill, 1 Myl. E.K.

PS CSSSeP ceoeecececeseseoeceeecece 33

Jones v. United States, 463 U.S.

354, 103 BCE. 30463 (1983) ecccces iii

Kelway v. Kelway, Cary 127, 21 Eng.

Rep. 47 (CR. 2580) ccccccccececes 32

Kremens v. Bartley, 431 U.S. 119

ADP Epo ec eeseSeseseseeseseeseseceeooes iii

Legard v. Foot, Rep. t. Finch 82,

23 Eng. Rep. 44 (Ch. 1673)....... 33

Powell v. Alabama, 287 U.S. 45

TROD 60066 6066 BOOS REOSS OO OEE O OOS 48,49

S.L., In re, 94 N.J. 128 (1983)...... iv

Solesbee v. Balkcom, 339 U.S. 9

IBUUOE CSCC CCE SCE CO SEO CEE OS OOO OSES ll

State v. Fields, 77 N.J. 282, 390

Be BE SES CESTEd cecececesceeocess iii

State v. Kahn, 175 N.J. Super. 72,

417 A. 2d 585 (App. Div. 1980)... iii

State v. Kociolek, 23 N.J. 400,

129 A. 2d 417 (1957)... ccc ccccees 27,28,29

30,31,32,

35,39,40

TABLE OF AUTHORITIES

CASES

Page

State v. Mingo, 77 N.J. 576, 392

A. 20 390 (1978)... cccccevecceces 27,28,33,

34,35,36,

37,38,39,

40,41

State v. Williams, 80 N.J. 472,

404 A. 2d 34 (1978) .....22ee eens 33,38,39,

Sparke v. Middleton, 1 Kebl. 505,

83 Eng. Rep. 1079 (K.B. 1664).... 33

Strickland v. Washington, --U.S.--,

104 S.Ct. 2052 reh. den. 104

7 me (| pep iii

United States v. Nobles, 422 U.S.

Bee UBWESE 66 CESS CSCS CCE OE SDE ETOCS 43,44,45,

Upjohn v. United States, 449 U.S.

| GED 60 0606060060 6660S 06668 46

Waldron v. Ward, Sty. 449, 82 Eng.

Rep. 853 (K.B. 1654)... eeeeees 33

STATUTES

N.J.S.A. 2A:158A-1 et Seq.......- sees ii

Detietinihn MO BaMis 6666660058 6066066668 iv

Pr = Me > Pr, oy PRETETELETILTILITiTTe 111,2

TABLE OF AUTHORITIES

CASES

N.J.S-A.w. S28 Z7TEW24. cc ccccccccccccceccs

N.J-S-Aw. S22 ZIEK2{5<. ccc cccccccccccsese

N.J.S.A.w. 522 Z7TE“29. wee ccccccccccccces

N.J-S.Aw 522 27B—30. ccc ccccccccccceces

OTHER AUTHORITIES

American Psychiatric Association,

Brief as amicus curiae,

Estelle v. Smith, 451 U.S.

The Attorney-Client Privilege and

the Work-Product Doctrine,

American Bar Association

7 Bea ceeeeseeeussecesoocecece

Bernstein, "“Psychotherapist-Patient

Privilege under Federal Rule of

Evidence 501," 75 Journal of

Criminal Law and Criminology

Bek) ree

"Developments in the Law:

Privileged Communications,”

98 Harv. Law Review 1450 (1985)..

Group for the Advancement of

Psychiatry, Rep. No. 45, at

DS TAOS) oes eceecesecesesecececes

Harold I. Kaplan, M.D., Benjamin J.

Sadock, M.D., eds. Comprehensive

Textbook of Psychiatry, Fourth

edition, Vol. 2 (Baltimore:

Williams and Wilkins, 1985)......

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Page

Kern, “Criminal Responsibility

and the Psychiatrist,” in N.J.

Psychiatric Association (ed.),

Medico-Legal Digest for New

Jersey Psychiatrists (1982)...... 23

Messersmith, “Evidence: The

Psychotherapist-Patient Privilege

under Federal Rule of Evidence

501," 23 Washburn Law Journal

GOO CAPSS ceceeeeeeeeeseseeeeeees 20

Roberts, “Some Observations on the

Problems of the Forensic

Psychiatrist,” in Allen, Ferster

and Rubin (eds.), Readings in

Law and Psychiatry (1968)........ 18,21

Slovenko, “Forensic Psychiatry,” in

Kaplan and Sadock (eds.), 2

Comprehensive Textbook of

Psychiatry (1985)... eeeeeeees 22,63

Slovenko, “Psychiatry and a Second

Look at the Medical Privilege

6 Wayne L. Rev. 175 (1960)....... 20

J. Thayer, A Preliminary Treatise on

Evidence at the Common Law,

TSSOSP Cece eeeeeeeeeseeeeeeeeceoes 31

8 Wigmore, Evidence 882190, 2290,

2301 (MCNaughton rev. 1961)...... 21,31,32,

8 J. Wigmore, Evidence in Trials

at Common Law 82380, at 819

(J. McNaughton rev. ed. 1961).... 21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-5487

MICHAEL MARNELL SMITH,

Petitioner

Vv.

ALLYN R. SIELAFF, DIRECTOR

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MOTION FOR LEAVE T© FILE

A BRIEF AS AMICUS CURIAE

The New Jersey Department of the

Public Advocate? (Department) respect-

fully moves this Court for leave to file

Lohe Department is specifically

empowered to “represent the public

interest in such administrative and court

proceedings...as the Public Advocate

(continued on next page)

the attached brief amicus curiae in this

case. The consent of the attorney for

the petitioner has been obtained; the

attorney for the respondent has stated that

he opposes the Department's request.

The Department is a cabinet level

agency of New Jersey state government.

1 (continued from previous page)

deems shall best serve the public interest.”

N.J.S.A. 52:27E-29. “Public interest” is

Gefined as “an interest arising from the

Constitution, decisions of the court, common

laws or other laws of the United States or

of this State inhering in the citizens of

this State or in a broad class of such

citizens.” N.J.S.A. 52:27E-30.

Within the Department, the Division of

Mental Health Advocacy (Division) was

established to represent “indigent mental

hospital admittees” in individual matters

involving their admission to, retention in,

or release from “mental hospitals,” N.J.S.A.

92: 27E-24, and to represent such persons in

class actions on "an issue of general

application to them,” N.J.S.A. 52:27E-25.

The Office of the Public Defender

(office) is administratively housed in the

Department and provides criminal defense

services to all indigent persons in the

State charged with indictable offenses.

See, N.J.S.A. 2A:158A-1 et seq.

iii

N.J.S.A. 52:27E-2. It has litigated

extensively in major areas affecting "the

public interest” for over ten years.

The Department has participated before

this Court both as counsel and as amicus

curiae in a number of cases related

to the issues before the Court here. See,

e.g., Ake v. Oklahoma, 470 U.S.--, 105

S.Ct. 1007 (1985); Jones v. United States,

463 U.S. 354, 103 S.Ct. 3043 (1983);

Kremens v. Bartley, 431 U.S. 119 (1977);

Strickland v. Washington, --U.S.--, 104

S.Ct. 2052 reh. den. 104 S.Ct. 3562 (1984).

The interest of the Department in this

case arises from its long-term representation

of persons charged with crime whose mental

state is at issue, * of persons charged with

-see, e.g., State v. Fields, 77 N.J.

282, 390 A. 2d 574 (1978) (right of in-

sanity acquittees to periodic review of

commitments); State v. Kahn, 175 N.J.

Super. 72, 417 A. 2d 585 (App. Div. 1980)

(right to contemporaneous competency

(continued on next page)

crime facing the death penalty, > of in-

stitutionalized persons who wish to seek

or refuse various forms of psychiatric

treatment and of persons facing involuntary

civil commitment. “ Often, protection of

the rights of these clients involves use

of psychiatric experts, both to evaluate

possible claims and defenses and to assist

2 (continued from previous page)

determination prior to imposition of in-

sanity defense over defendant's objections);

In re A.L.U., 192 N.J. Super. 480, 471 A.

2d 63 (App. Div. 1984) (further articula-

tion of periodic review rights f insanity

acquittees).

N.J.S.A. 2C:11-3.

4c, e.g., In re Geraghty, 68 N.J.

209, 343 A. 2d 737 (1975) (promulgation of

court rule mandating appointment of counsel

at commitment hearings; In re S.L., 94 N.J.

128 (1983) (establishing the rights of

persons no longer dangerous to themselves

or others).

counsel in trial preparation. Because an

accurate assessment in these areas demands

frank and candid discussions between the

psychiatrist and the defendant, the full and

effective assistance of counsel would be

hindered if the candid discussion effectively

waived his Fifth Amendment rights, or if

counsel's ability to explore all possible

defenses is chilled by the possibility of

having to turn an adverse report over to

the prosecution. the Fifth Amendment, the

Sixth Amenament, the attorney-client pri-

vilege, and the work-product doctrine are

all elicited by the communications among

defense psychiatrist, defense attorney, and

their client. Amicus will argue that New

Jersey has for nearly thirty years barred

the State from calling as a witness a

defense-retained expert whom the defense will

not call to testify, with no adverse effect.

Amicus will further argue that in the

opinion of the State's highest court, such

a rule actually promotes the administration

of justice.

To the best of our knowledge, no

other amicus or party in this case will

deal with these matters from the same

perspective as this Department has.

For the above reasons, the Depart-

ment respectfully requests leave to file

the attached brief amicus curiae in this

case.

Respectfully submitted,

ALFRED A. SLOCUM

ACTING PUBLIC ADVOCATE

By ~'¢

Linda G. Rosenzweig

Director

Division of Mental Health

Advocacy

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

NO. 85-5487

MICHAEL MARNELL SMITH,

Petitioner

Vv.

ALLYN R. SIELAFF, DIRECTOR

VIRGINIA DEPARTMENT OF CORRECTIONS,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

INTEREST OF AMICUS CURIAE

The New Jersey Department of the Public

Advocate, and two of its component parts, the

Division of Mental Health Advocacy [|herein-

after the Division] and the Cffice of the

Public Defender, submit this brief in support

of Michael Marnell Smith, and urge this Court

to reverse the judgment of the Fourth Circuit

and set aside the sentence of death. The

Division, a statutory portion of the cabinet

level Department? is mandated to provide

rep’ efentation to “indigent mental hospital

adn ' tees"* in matters pertaining to their

"admission to, retention in, or discharge

from" mental hospitals in the State. N.J.S.A.

52:27E-24. In fulfillment of this obligation,

the Division provides legal representation to

residents of nine of New Jersey's counties

on 7,700 matters per year.> As such, the

Division has a substantial interest in this

Court's consideration of any matter in which

a civilly-committed patient, or a mentally

tN .J.S.A. 52:2/7E-2.

*N.J.S.A. 52:27E-23.

sThis figure includes not only initial

commitment hearings, but also periodic

reviews of civil commitments, commitments

of persons found not guilty by reason of

insanity orc incompetent to stand trial and

other issues affecting persons with in-

volvement in the mental health system.

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Defender therefore is vitally interested in

any decision which would interfere with the

right of a criminal defendant to effective

assistance of counsel.

SUMMARY OF ARGUMENT

In criminal trials at which the question

of defendant's mental capacity at the time

of commission of the alleged offense is

raised in defense, the assistance of a

psychiatric expert is essential to evaluate

the viability of the insanity defense, to

testify at trial if the defense is found to

be viable, to assist counsel in preparing

for cross-examination of the State's experts

and to evaluate possible mitigating factors

in the sentencing phase.

Since psychiatry is not an exact science,

and many subjective elements enter into the

final conclusions of a psychiatric expert,

it is virtually impossible for defense counsel

to predict with any certainty whether or not

the report will be favorable to his client.

In order to provide effective repre-

sentation, an attorney must be afforded the

latitude and the freedom to fully explore

and develop a meritorious defense on his

client's behalf without risking a crippling

revelation to the State of information dis-

covered in the course of investigation which

he chooses not to use at trial. In New

Jersey, the Supreme Court has ruled that

such protection is guaranteed by the Sixth

Amendment right of the accused to effective

assistance of counsel. In New Jersey, the

Supreme Court decision -- protecting from

discovery by the State reports which the

defense does not intend to use at trial --

has existed without modification since 1957.

The Court has on two occasions since that

time affirmed and reiterated that con-

stitutional protection. Indeed, the New

Jersey Supreme Court has indicated that such

a procedure considerably advances the

interests of justice and in no way hampers

the State's ability to prosecute.

In the within brief, this Court is

urged, on Sixth Amendment right to counsel

grounds, to reverse the judgment of the Fourth

Circuit and set aside the sentence of death.

ARGUMENT

I. SINCE EXPERT PSYCHIATRIC

ASSISTANCE PLAYS A PIVOTAL

ROLE IN CRIMINAL PROCEEDINGS,

THE MAXIMUM OPPORTUNITY FOR

CONSULTATION AND INTERACTION

WITH THE EXPERT MUST BE AFFORDED

COUNSEL AS PART OF THE INTERNAL

STRATEGIC PROCESS OF THE DEFENSE

This Court has unequivocally recognized

that psychiatric experts play a “pivotal

role” in criminal proceedings, in marshalling

an effective defense to the charges, in

assisting counsel to rebut the State's

evidence in the sentencing phase and assisting

the defense to obtain a fair trial. In

Ake v. Oklahoma, 470 U.S. -- , 105 S.Ct. 1087

(1985), the majority clearly determined that

"a defense may be devastated by the absence

of a psychiatric examination and testimony.”

470 U.S. at -- , 105 S.Ct. at 1997.

Plainly, a psychiatric expert makes a

profoundly significant contribution to the

internal strategic processes of the defense.

Besides the interview of the defendant, the

interaction between such an expert and

defense counsel may involve the professional

svaluation of complex and highly sensitive

material. The defense attorney often must

reveal critical defense strategies to his

evaluating psychiatrist to assist the

psychiatrist in preparing his evaluation,

as well as including the defense psychiatrist

in trial preparations and formation of new

strategies based on the evaluation.

“ikc Ake, Michael Marnell Smith is faced

with the death penalty. For both, future

jangerousness was a significant issue to be

resolved in the capital sentencing phase.

Plainly, the essential functions of a

with equal force in the case at bar.

‘a a) 5 e + ~ = " (-

The first function of a psychiatric

expert n ted i Ak . Ls > | it ie-

- + 5 " > 7 "

crermineé if the insanity de ense Ss Ladi

Ake v. Okiahoma, 470 U.S., Supra, at -~- ,

assistance provided. The Ake majority

described this vital function:

In this role, psychiatrists

gather facts, both through pro-

fessional examination, interviews

and elsewhere;...they analyze the

information gathered and from it

draw plausible conclusions about

the defendant's mental condition

and about the effects of any dis-

order or behavior; and they offer

opinions about how the defendant's

mental condition might have affected

his behavior at the time in question.

470 U.S. at -- , 105 &.Ct. at 1095.

It is at this juncture that confidentiality

of the psychiatrist's conclusions is urgently

needed, for counsel's ability to test the

viability of such a defense will be markedly

impaired if the outcome of an unfavorable

report wi’; be available to the State

Purther, psychiatry is

‘?

ivy

The subtleties and nuances f

psychiatric diagnosis render

fertainties virtually beyond

reach in most situations. The

reasonable-doubt standard of

criminal law functions in its

realm because there the standard

is addressed to specific, know-

ible facts. Psychiatric diagnosis

”_

to the jury and "assisting in preparing

the cross-examination of the State's

psychiatric witnesses." 470 U.S. at -- ,

105 §.Ct. at 1096:

They know the probative questions

to ask of the opposing party's

psychiatrist and how to interpret

their answers. Unlike lay witnesses

who can merely describe symptoms

they believe might be relevant to

the defendant's mental state,

psychiatrists can identify the

elusive and often deceptive symp-

toms of insanity, Solesbee v.

Balkcom, 339 U.S. 9, 12 (1950)

and...assist lay jurors...to make

a sensible and educated determination

about the mental condition of the

defendant at the time of the offense

470 U.S. at , 105 §.Ct. at 1095-

1096.

When legal insanity is likely “to be a

significant factor in defense, the need for

a psychiatrist is readily apparent.” It is

in such a case that "a defense may be

devastated by the absence of a psychiatric

examination and testimony; with such

assistance, the defendant might have a

reasonable chance of success." 470 U.S.

at -- , 105 §.Ct. at 1097. The questions

asked by defense counsel of Dr. Pile and

Dr. Dimitris at the sentencing hearing

demonstrate this “devastating effect”

foreseen by this court when psychiatric

assistance in preparing psychiatric cross-

examination is not available. Without

psychiatric assistance, defense counsel

inadvertently produced unrefuted testimony

detrimental to Smith.

The third and final function of a

psychiatrist identified by this Court in

Ake is marshalling and establishing the

relevant evidence during the sentencing

phase:

We have repeatedly recognized the

defendant's compelling interest

in fair adjudication at the

sentencing phase of a capital case.

4 the Court's holding in Ake that a de-

fendant is entitled to the assistance of a

psychiatric expert where sanity is a signif-

icant factor at trial is not limited to

capital cases and applies whenever the de-

fendant's life or liberty is at risk. See

concurring opinion of Chief Justice Burger,

stating that such protections should only be

available in capital cases, and disagreeing

(continued on next page)

The State, too, has a profound

interest in assuring that its

ultimate sanction is not errone-

ously imposed.... Without a

psychiatrist's assistance, the

defendant cannot offer a well-

informed expert's opposing view,

and thereby loses a significant

opportunity to raise in the juror's

minds questions about the State's

proof of an aggravating factor.

In such a circumstance, where the

consequence of error is so great,

the relevance of responsive

psychiatric testimony so evident,

and the burden on the State so

slim, due process requires...assis-~-

tance in preparation at the sentencing

phase. 470 U.S. at , 105 §.Ct.

at 1097. sien

In fact, the widespread reliance on

psychiatrists discussed by this Court in

Ake leads to the inescapable conclusion that

in cases where mental illness is a significant

factor at trial, a defendant runs an un-

acceptably high risk of an inaccurate

resolution of the issues if he is forced

“(continued from previous page)

with the majority opinion insofar as it

afforded such a right in non-capital cases

as well. 470 U.S. at -= , 105 §.Ct. at

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ACCURATE PSYCHIATRIC EXPERT

IPINION CANNOT BE PROVIDED

UNLESS THE DEFENDANT IS FREE

TO FULLY AND OPENLY DISCLOSE

HIS HISTORY AND HIS THOUGHTS

main hallmark of a reliable,

and trustworthy expert psychiat:

Ss its foundat nin an open and

nange with the defendant. it ¢t

is reluctant t livuige the det

entail illness and psychiatr

, and present fears, hallucinat

ia, it is abundantiy Lear that

history and an accurate diagnos

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provide reliable expert opinion. Commenting

on the need for a detailed history, which

includes past episodes of violence, Leigh

Roberts, M.D., stresses the need for a

probing examination. It is beyond dispute

that incriminating material is often elicited:

The evaluation in most cases should

include a complete psychiatric

See Brief for American Psychiatric

Association as amicus curiae, Estelle v.

Smith , 451 U.S. 454 (1981). See also

Group for the Advancement of Psychiatry,

Rep. No. 45, at 92 (1960):

The relationship may well be likened

to that of the priest-penitent or

the lawyer-client. Psychiatrists

not only explore the very depths of

their patients’ conscious, but their

unconscious feelings and attitudes

as well. Therapeutic effectiveness

necessitates going beyond a patient's

awareness and, in order to do this,

it must be possible to communicate

freely. (Emphasis added).

evaluation with a full past and

present history of the client.

It should also include a mental

status examination. This includes

assessment of intelligence, competence

of organic brain functioning, symptoms

of mental disorder, patterns of coping

with stressful situations, and levels

of anxiety and depression.... With

alleged sex offenders, the detailed

history, relationship of sexual

problems to the alleged offense,

and assessment of danger to past

victims are all important....7

Roberts asserts that a complete exam-

ination may require several days or even

weeks in highly complex cases if adequate

data is to be elicited. ® More recent

commentators have echoed and reinforced

Roberts’ emphasis on the need for a compre-

hensive, probing examination accompanied by

Roberts, “Some Observations on the

Problems of the Forensic Psychiatrist,”

in Allen, Ferster and Rubin (eds.), Readings

in Law and Psychiatry 136, 140 (1968).

Sthid.

a thorough history.”

Nonetheless, psychiatrists recognize

that most defendants are extremely re-

luctant to divulge confidential material,

IHarold I. Kaplan, M.D., Benjamin J.

Sadock, M.D., eds., Comprehensive Textbook

of Psychiatry, Fourth edition, Vol. 2

(Baltimore: Williams and Wilkins, 1985).

10nne disinclination of most people to

reveal intimate and troublesome details of

their lives to psychiatrists and psycho-

therapists has been widely commented on:

Even those who are well-informed on

other matters consider a person's

treatment by a psychiatrist as

evidence of his ‘queerness' or even

insanity.... A person may hesitate

to visit a psychiatrist out of fear

that he will be set apart from his

fellow men. Slovenko, “Psychiatry

and a Second Look at the Medical

Privilege,” 6 Wayne L. Rev. 175, 188

(1960).

See also, Bernstein, “Psychotherapist-

Patient Privilege under Federal Rule of

Evidence 501," 75 Journal of Criminal Law

and Criminology 388, 398 (1984); Messersmith,

“Evidence: The Psychotherapist-Patient

Privilege under Federal Rule of Evidence

5901," 23 Washburn Law Journal 706, 711

(1984). This reticence, combined with

the unmistakable individual and societal

benefit to be gained from open disclosure,

have led t¢t the recognition of the need

for a physician-patient privilege. Although

(continued on next page)

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Significantly, however, most forensic

psychiatrists, in conducting a psychiatric

examination for the defense, presume that the contents

of their report will not be turned over to

the prosecution if they are not called as a

witness by the defense:

In the case when a psychiatrist

performs an evaluation initiated

by the defendant for purposes of

providing the defense attorney

with assistance in preparing for

and conducting the trial, then

communications between the eval-

uator and the defendant are

privileged under the attorney~

client privilege. The defendant

does not waive the attorney-client

privilege with regard to those

psychiatric consultations that the

defendant does not intend to use

at trial. 12

Slovenko explains the reason why the contents

of such a report are privileged:

Under the adversary system, each

side is expected to put its best

2 slovenko, “Porensic Psychiatry," in

Kaplan and Sadock (eds.), 2 Comprehensive

Textbook of Psychiatry, p.1960, 1965 (1985)

(hereinafter Comprehensive Textbook of

Psychiatry).

foot forward, with the judge and

jury deciding between them on the

basis of the evidence offered. The

issues are polarized. Thus, when

prosecutors decide to undertake a

prosecution, they must prosecute

to the best of their ability. They

do not ask the jury to return a

verdict of not guilty. Neither

would the defense counsels argue that

their clients are guilty of the

crimes charged.... Attorneys put

experts or other witnesses on the

stand only if they will advance

the interests of their clients.

Under the work-product rule, the

attorneys have a right not to divulge

experts whom they have cnsulted

but have decided not to use because

of their unfavorable reports.~~” (emphasis

added)

3comprehensive Textbook of Psychiatry,

supra, at 1961. See also Kern, "Criminal

Responsibility and the Psychiatrist," in

N.J. Psychiatric Association (ed.), Medico-

Legal Digest for New Jersey Psychiatrists,

p. 14-1 (1982):

If the psychiatrist is hired by

the prosecution, the prisoner should

be warned that he is free to refuse

to answer any questions.

The relationship of a prosecutor's

examiner to the examinee is not a

therapeutic relationship and it is not

unethical to reveal private details of

the examination. In this situation,

the physician is an agent of the

prosecution and is not the defendant's

therapist.

A psychiatrist hired by the defense

is in a different position. The

(continued on next page)

When a psychiatrist operates on the

assumption that an adverse report will

not be provided to the State, he is free

to conduct the type of wide-ranging inquiry

and investigation necessary to evaluate

whether an insanity defense is viable. Candor

and openness from the defendant are certainly

more likely if the defendant is assured that

the internal strategic processes of the

defense are intact. The psychiatrist is

then free to ask the defendant questions

concerning his appreciation of the nature

and quality of the act in question, his

understanding of whether it was right or

wrong and he is free to probe whether at the

time of the alleged offense the defendant

13 ; '

(continued from previous page)

defendant has been advised to tell

everything to the doctor and if

the doctor testifies, he swears to

tell the whole truth. Therefore,

if the doctor's testimony would

damage the defense case, he should

So advise the attorney who may

Ghoose another physician to examine

his client. (emphasis added)

———

was, or was not, suffering from a mental

disease or defect. Ifa psychiatrist

knows from the outset that the report need

not be given to the State if he concludes

that the defendant was not insane at the

time of the offense, then he operates from

the perspective of maximum professional

candor. Without confidentiality

and without a shield against compelled dis-

closure to the State, no defendant will have

the confidence in the psychiatrist which will

enable the psychiatric professional to do

that which his experience and training

gualify him to do -- render an expert opinion.

Unless the confidence is inviolate, there will

of necessity be restraints upon communication

between the defendant and his potential

expert witness.

III. AS AN EXPRESSION OF THE SIXTH

AMENDMENT RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL, NEW

JERSEY HAS FOR NEARLY THREE

DECADES, GRANTED THE DEFENSE

THE LATITUDE TO FULLY EXPLORE

AND DEVELOP PSYCHIATRIC DE-

FENSES WITHOUT THE FEAR THAT

UNFAVORABLE MATERIAL SO

OBTAINED CAN BE USED AGAINST

THE DEFENDANT “

For nearly three decades, criminal de-

fendants in the State of New Jersey have

enjoyed the maximum freedom to explore the

soundness and advisability of offering a

particular defense without the fear that

any unfavorable material so obtained can be

used against them. The rule safeguarding

the internal strategic processes of the de-

fense has existed in New Jersey since 1957

as an expression of the Sixth Amendment right

under the United States Constitution to

effective assistance of counsel and of the

analogous, and identical, provision of the

New Jersey Constitution. Although the New

Jersey Supreme Court has been presented with

numerous opportunities to relax, weaken or

———

modify the protection it established in

1957, it has declined to do so. Instead,

the state's highest tribunal has continually

explicitly reaffirmed the constitutional

protection previously articulated. Plainly,

the constitutional guarantee articulated in

New Jersey is an essential ingredient of its

criminal justice system, and is not viewed by

the Court as working an unjust result on the

effort of the State to prosecute allegedly

criminal wchewten”" In fact, in the course of

its decision affirming the 1957 State v.

Kociolek precedent, the Supreme Court firmly

announced in State v. Mingo, 77 N.J. 576, 392

A. 2a 590 (1978) its belief that such a rule

"will not in any way hamper the State's

. ° a 4

ability to effectively prosecute its case. °

1 4New Jersey is among ten states in which

a judicial decision holds that defense-re-

quested mental evalué-cions are protected by

the attorney-client privilege. See Appendix

C, Opening Brief of Petitioner Smith, filed

December 5, 1985.

l5state v. Mingo, 77 N.J. 576, 587, 392

A. 2a 590, 595 (1978).

In the vast majority of cases, the

State will be able to obtain its

own expert on any matter as to

which it considers expert testimony

potentially necessary. The interests

of justice are considerably advanced

when a defendant receives the most

effective assistance of counsel

possible. Since the State's primary

interest is not to convict but to

see that justice is done, it, as

well as defense attorneys, should

welcome the positive effect our

decision will have on the admin-

istration of criminal justice in

New Jersey. State v. Mingo, 77 N.J.

576, 587-588, 392 A. 2d 590, 595

(1978).

If any doubt existed that the Kociolek

rule enhanced the administration of justice

in New Jersey, such doubt was laid to rest

after Mingo.

In State v. Kociolek, 23 N.J. 400 (1957),

129 A. 2d 417, the New Jersey Supreme Court

first established the constitutional

foundations of the rule that a defense-

retained psychiatric expert may not be

called as a witness by the State if the

defense does not intend to rely on his

testimony. In Kociolek, the cost of the

psychiatric examination was borne by the

County due to the defendant's indigence as

eae iaeaaaaeiinaiieaee aia

Smith's exam was paid for by the Commonwealth

herein. In Kociolek, the State obtained a

copy of the report directly from the physician.

23 N.J. at 411-412, 129 A. 2d at 423. The

Court found that the State's calling the

defense psychiatrist as a rebuttal witness in

the guilt phase violated the attorney-client

privilege, a necessary basis of both the

constitutional right against self-incrimi-

nation and the right of a criminal defendant

to effective assistance of counsel in his

defense:

The psychiatrist was retained to...

impart to [the accused's] attorneys

the benefit of his expert judgment

and experience for their use in the

preparation and presentation of the

defense; and the communications made

by the accused to the psychiatrist

in response to his interrogation...

are privileged, just as much so as

if the revelations had been made by

the accused directly to his attorneys.

The privilege extends to the necessary

intermediaries and agents through whom

the communications are made. And it

includes communications between the

attorney and a scientific expert re-

tained to aid in the presentation of

the defense, a confidential employ-

ment. The principle is of the essence

of the ancient common-law attorney-

client privilege, in this country

and in England and the continental

countries deemed a basic civil right,

indispensable to the fulfillment of

the constitutional security against

self-incrimination and the right to

make defense with the aid of counsel

skilled in the law.

« 7 *

The privilege is an accommodation

of competing interests, the ascendency

for compelling policy reasons of the

protection from unauthorized dis-

closure of communications between

attorney and client over general

testimonial duty and compulsion in

the interest of truth and justice.

The attorney-client privilege is

basic to a relation of trust and

confidence that, though not given

express constitutional security is

yet essentially interrelated with

the specific constitutional guar-

anties of the individual's right to

counsel and immunity from self-in-

crimination, the oldest of the

privileges for confidential com-

munications. 23 N.J. at 413-414,

414-415; 129 A. 2d at 424, 425.

In Kociolek, the New Jersey Supreme

Court determined, and properly so, that the

attorney-client privilege is of historical

origin in the representation of the accused.

23 N.J. at 414-416, 129 A. 24 at 425 .7%

In ruling in Kociolek that the “privilege

16 the original rule barring attorneys

from revealing client confidences was based

upon consideration for the oath and honor of

the attorney rather than for he apprehensions

of the client, and upon the belief that gentle-

men do not reveal secrets entrusted to them.

8 Wigmore, Evidence 82290, at 543 (McNaughton

rev. ed. 1961) (hereinafter Wigmore).

However, with the shift in the factual

orientation of trials, a new need for the

privilege emerged. Up until 1450 in England,

jurors did not hear evidence so much as they

reached conclusions based on their prior

knowledge of the case as members of the com-

munity. Wigmore, supra, 82190, at 62. See

also J. Thayer, A Preliminary Treatise on

Evidence at the Common Law, at 47-48, 90-93

(1898) (hereinafter, Thayer). Indeed, pro-

cedures for compelling testimony did not

generally exist. A witness who volunteered

testimony was viewed as an unwanted inter-

meddler and subjected to suit for maintenance,

a common law tort for stirring up litigation.

Wigmore, supra, 82190, at 63-64. Gradually,

the common tn trial process changed. During

the period 1450-1460 equity courts recognized

a subpoena that the Chancellor might issue on

behalf of the plaintiff to a non-party witnes3.

Thayer, supra, at 129. A similar change in

the law courts did not occur until the six-

teenth century, when in 1562-1563, the Statute

of Elizabeth abolished the tort of maintenance

(stirring up litigation) and authorized pen-

alties for a witness’ refusal to testify after

service of process and tender of expenses.

Wigmore, supra, $2190, at 65. With the risk

(continued on next page)

is in vain if it does not secure freedom of

professional consultation," 23 N.J. at 415 ,

129 A. 2d at 425, the Court laid the

of compelled testimony came the need to

examine the concept of privilege.

The first privilege to spring forth

following the risk of testimonial compulsion

was the attorney-client privilege. Wigmore,

Supra, 82290, at 542-543. The attorney-

client privilege was recognized in the

reign of Elizabeth I in numerous cases that

Followed closely on the heels of the Statute

of Elizabeth. Wigmore cited and analyzed

numerous cases which held that an attorney

could not be compelled to disclose the con-

fidences of his client:

Berd v. Lovelace, Cary 88, 21 Eng.

Rep. 33 (Ch. 1577) (solicitor ex-

empted from examination touching

the cause); Dennis v. Codrington,

Cary 143, 21 Eng. Rep. 53 (Ch. 1580)

(on a motion to examine one Oldsworth,

"touching a matter in variance,

wherein he hath been of Counsel, it

is ordered he shall not be compelled

by subpoena or otherwise to be ex-

amined upon any matter concerning the

same, wherein he the said Mr. Oldsworth

was of counsel, either by the in-

different choice of both parties or

with either of them by reason of any

annunity or fee"); Kelway v. Kelway,

Cary 127, 21 Eng. Rep. 47 (Ch. 1580)

(solicitor of plaintiff to be ex-

amined for defendant, “upon any in-

terrogatory which shall not be touch-

ing the secrecy of the title or of

(continued on next page)

groundwork for its later decisions in

State v. Mingo, 77 N.J. 577, 392 A. 2d 590

(1977) and State v. Williams, 80 N.J. 472,

404 A. 2d 34 (1978).

16 ; ,

(continued from previous page)

any other matter which he knoweth

as solicitor only"); Roll, C.J.,

in Waldron v. Ward, Sty. 449, 82

Eng. Rep. 853 (K.B. 1654) ("He is

not bound to make answer for things

which may disclose the secrets of

his clyent's cause"); Sparke v.

Middieton, 1 Kebl. 505, 83 Eng.

Rep. 1079 (K.B. 1664) (counsel re-

quired in testifying to tell only

"such things as he either knew

before he was of counsel or that

came to his knowledge since by other

persons"); Legard v. Foot, Rep. t.

Finch 82, 23 Eng. Rep. 44 (Ch. 1673)

(attorney privileged); Anonymous,

Skin. 404, 90 Eng. Rep. 179 (K.B.

1693) (counsel privileged). Wigmore,

supra, $2290, at 542.

Later English cases made it plain that

the foundation of the rule is "out of regard

to the interests of justice, which cannot be

upholden, and to the administration of

justice, which cannot go on without the aid

of men skilled in jurisprudence, in the

practice of the courts, and in those matters

affecting rights and obligations which form

the subject of all judicial proceedings."

Greenough v. Gaskill, 1 Myl. E.K. 98, 103

(1833). Without secrecy of communication,

there cannot be the "unrestricted and

(continued on next page)

In State v. Mingo, supra, decided

twenty-one years after Kociolek, a unanimous

New Jersey Supreme Court ruled that permitting

prosecutorial discovery of a report of a hand-

writing expert retained by the defense, and

the use of that expert as a witness by the

State, violated the defendant's Sixth Amend-

ment right to counsel. The decision in

Mingo was based on the recognition that in

order to provide effective representation an

attorney must be afforded the latitude and

the freedom to fully explore and develop a

meritorious defense on his client's behalf

without risking a "crippling revelation to

the State of information discovered in the

course of investigation which he chooses

not to use at trial." State v. Mingo, 77

N.J., supra, at 582, 392 A. 2d, supra, at 592

{continued from previous page)

unbounded confidence in the professional

agent" which is essential to the adminis-

tration of justice." Anderson v. Bank,

L.R. 2 Ch. D. 644, 649 (Jessel, M.R. 1876).

In Mingo, the Court affirmed a crucial

element of its Kociolek holding, i.e. that

any scientific expert retained by the

defense -- whether it is a psychiatrist,

pathologist, handwriting expert, or ballistics

expert -- functions as the agent of the

attorney and that therefore any communication

by the defendant to him is the legal and

functional equivalent of a communication by

the defendant to the attorney himself. 77

N.J., supra, at 583, 392 A. 2d, supra, at

593 . See also 8 Wigmore, Evidence 82301

(McNaughton rev. 1961) and cases collected

and cited therein.

The Court then reiterated the Kociolek

rule that defendant's attorney must have

full investigative latitude in developing a

meritorious defense, and that the State had

no justification for calling the defendant's

expert as its witness. The Sixth Amendment

foundation of such a rule was reaffirmed:

[T]he State had no justification

for calling defendant's handwriting

expert as its witness. If it

considered the identity of the

disputed note's author to be a

critical part of its case, the

State was fully capable of re-

taining its own expert....

The right to counsel afforded

criminal defendants by the Sixth

Amendment of the United States

Constitution and by Art. I, par.

10 of the New Jersey Constitution

comprehends the right to the

effective assistance of counsel.

To safeguard the defense attorney's

ability to provide the effective

assistance guaranteed by these

constitutional provisions, it is

essential that he be permitted

full investigative latitude in

developing a meritorious defense

on his client's behalf. This

latitude will be circumscribed

if defense counsel must risk a

potentially crippling revelation

to the State of information dis-

covered in the course of in-

vestigation which he chooses not

to use at trial. State v. Mingo,

77 N.J., supra, at 581-582, 392

A. 2d, supra, at 592.

The Court’s opinion went beyond estab-

lishing a bare-bones rule. Instead, Justice

Pashman's opinion articulated detailed pro-

cedures which govern the discovery process

for expert opinion in criminal cases:

a. The ruling is limited to

reports of opinions of expert

witnesses, and has no bearing upon

the discovery or utilization at

trial of information of any other

nature assembled by the defense.

77 N.J. at 585, 392 A. 2d at 594.

b. The defense must indicate that

it has obtained a report it intends

to use at trial if the State poses

that question in discovery. Dis-

covery of the report must then be

granted to the State. 77N.J. at

585-586, 392 A. 2d at 594.

c. Although the State may cross-

examine the expert testifying for

the defense, the defense does not

waive its right to control the

testimonial use of the expert --

he remains unavailable to the State

as a witness. %77N.J. at 586, 392

A. 2d at 595.

d. Should the defense elect not

to present the expert as a witness

after previously indicating to the

contrary, the fact that his other-

wise confidential reports have been

disclosed to the prosecution does

not entitle the State to call the

expert as its expert over objection

by the defense. 77 N.J. at 586,

392 A. 2d at 595.

e. Court orders can be entered to

obviate any danger that the defense

might deprive the State of expert

assistance by “scooping up" all the

experts in the rare case involving

a subject as to which the number of

qualified experts is few. 77 N.J.

at 587, fn. 3, 392A. 2d at 595,

The policy underlying the Mingo holding

was declared by the Court -- the internal

strategic processes of the defense must be

safeguarded if effective assistance of

counsel is to be guaranteed:

This rule will safeguard the in-

ternal strategic processes of the

defense...by affording (counsel)

the maximum freedom to seek the

guidance of expert advice in

assessing the soundness and ad-

visability of offering a partic-

ular defense without the fear

that any unfavorable material so

obtained can be used against his

client...Reliance upon the con-

fidentiality of an expert's advice

itself is a crucial aspect of a

defense attorney's ability to

consult with and advise his client.

If the confidentiality of that ad-

vice cannot be anticipated, the

attorney might well forego seeking

suca assistance, to the consequent

detriment of his client's cause.

The protection from unwarranted

disclosure we today mandate is an

indispensable element of a criminal

defendant's constitutional right to

the effective assistance of counsel.

77 N.J. at 587, 392A. 2d at 595.

One year later, the New Jersey Supreme

Court broadened the Mingo holding. In

State v. Williams, 80 N.J. 472,404 A. 2d

34 (1979), the Court extended the Mingo/

Kociolek protection to bar discovery of

statements of fact witnesses, prepared by

the defense, which counsel does not intend

to use at trial. 80 N.J., supra, at 480-481,

404 A. 2d, supra, at 38. In Williams, an

Order had been entered requiring the de-

fense to turn over to the State discovery of

photographs shown to the victim by the de-

fense in which she positively identified

the defendant, along with a memorandum

prepared of the session by defense counsel.

In ruling that such a procedure "trespassed

on defendant's right to effective assistance

of counsel,” 80 N.J. at 477, 404 A. 2d at

37, the Court reiterated the Mingo holding

and its Sixth Amendment underpinnings:*’

17 see also State v. Mingo, 77 N.J.,

Supra, at 583-584, 392 A. 2d, supra, at

593, where the Court reinforced the con-

stitutional assumptions that underlay its

earlier decision in Kociolek:

We also find our decision in

Kociolek, 23 N.J. 400 (1957),

although formulated in terms of the

(continued on next page)

The investigative course selected

by an attorney in order to prepare

a proper defense for his client

frequently entails a high order of

discretion. This often calls for

more than simple fact gathering....

Blanket discovery of the fruits

of this kind of legal creativity

and preparation may impact directly

upon the freedom and initiative

which a lawyer must have in order

to fully represent his client.

State v. Mingo, supra. Curtail-

ment or inhibition of this attorney

function by discovery, not other-

Wise justified to avoid trial sur-

prise, would permit the State to

undermine the effectiveness of an

attorney in serving his client.

It is abhorrent to our concept

of criminal justice to compel a

defendant, under the guise of

reciprocal discovery, to disclose

to the State inculpatory evidence

uncovered by defense counsel during

his preparation for trial and then

17 (continued from previous page)

attorney-client privilege, to be

highly relevant as a matter of the

defendant's right of effective

representation by counsel.... The

rationale of Kociolek is that the

psychiatrist was the agent of the

attorney and that therefore any

communication by the defendant to

the psychiatrist in the course of

his examination was the equivalent

of a communication by the defendant

to the attorney himself.

allow the State to use that evidence

as part of its case in chief. That

is exactly what happened in this

case. State v. Williams, 80 N.J.,

supra, at 479, 409A. 2d, supra, at

3 ,

Thus, for over thirty years New Jersey

courts have viligantly protected the Sixth

Amendment right to a fair trial by shielding

the internal strategic processes of the

defense from discovery by the prosecution.

In so doing, the Court has avoided “chilling”

defense preparation and investigation,

and has implemented a rule which in the

Court's opinion should have a "positive

effect...on the administration of criminal

justice in New Jersey." State v. Mingo,

77 N.J., supra, at 588,392 A. 2d, supra,

at 595. Amicus accordingly urges this Court

To hold otherwise would infringe on

a defendant's constitutional right to the

effective assistance of counsel because of

the chilling effect it would have on de-

fense investigation." State v. Williams,

80 N.J., supra, at 478, 404A. 2d, supra,

Se ar «

to consider the successful experience of

the New Jersey courts, and the Sixth

Amendment underpinnings thereof, as part

of its deliberations in the case at bar.

Although the arguments of petitioner Smith

before this Court are couched principally

in terms of the Fifth Amendment's right

against self-incrimination, in at least

one decision, this Court has considered

attorney-client privilege arguments sua

sponte when they had not been asserted by

the defendant. In Fisher v. United States,

425 U.S. 391 (1976), defendant taxpayers

sought to protect from Government discovery

their accountants’ reports which had been

turned over to their counsel, and had relied

on the Fifth Amendment:

The taxpayers in these cases,

however, have from the outset

consistently urged that they

should not be forced to expose

otherwise protected documents

to summons simply because they

have sought legal advice and

turned the papers over to their

attorneys. The Government appears

to agree unqualifiedly. The

difficulty is that the taxpayers

have erroneously!9 relied on

the Fifth Amendment without urging

the attorney-client privilege in

sO many words. They have never-

theless invoked the relevant body

of law and policies that govern

the attorney-client privilege.

In this posture of the case, we

feel obliged to inquire whether

the attorney-client privilege

applies to documents in the hands

of an attorney which would have

been privileged in the hands of

the client by reason of the Fifth

Amendment. Fisher v. United States,

425 U.S., supra, at 402.

The decision in United States v. Nobles,

422 U.S. 225 (1975) also reflects this

Court's recognition that the attorney-client

privilege is frequently intertwined with

Fifth Amendment claims. Nobles presented

for review the defense contention that its

19 amicus does not in any way suggest that

petitioner Smith's reliance on the Fifth Amend-

ment herein was erroneous. Such reliance is

amply supported by the law and facts involved

in this case.

investigator's contemporaneous report of

prosecution eyewitnesses’ identifications

of the defendant was not discoverable by

the State. Although the Court was not

persuaded that the Fifth Amendment prevented

disclosure of the materials sought by the

State, 2°

it did however find that the attorney-

client privilege applies to the preparation

of defense investigative reports, and the

privilege was held theoretically applicable

to agents of the defense, persons who

function in the same capacity as did Dr. Pile

20 tn Nobles, the Fifth Amendment claim

was rejected because it “does not extend to

the testimony or statements of third parties

called as witnesses at trial." 422 U.S. at

235 (emphasis added). It is plainly dis-

tinguishable from the case at bar, since

unlike the defense investigator in Nobles,

Dr. Pile was not called as a witness by

the defense.

in the case at bar. Plainly, the privilege

extends beyond the statements of the

accused to his counsel and is broad enough

to include the statements of experts and

other witnesses:

At its core, the work-product

doctrine shelters the mental

processes of the attorney,

providing a privileged area within

which he can analyze and prepare

his client's case. But the

doctrine is an intensely practical

one, grounded in the realities of

litigation in our adversary system.

One of those realities is that at-

torneys often must rely on the

assistance of investigators and

other agents in the compilation

of materials in preparation for

trial. It is therefore necessary

that the de ~trine protect material

prepared by agents for the attorney

as well as those prepared by the

attorney himself. Moreover,

the concerns reflected in the

work-product doctrine do not dis-

appear once trial has begun. Dis-

closure of an attorney's efforts

at trial, as surely as disclosure

during pretrial discovery, could

disrupt the orderly development

and presentation of his case.

422 U.S. at 238, 239 (emphasis

added).

This Court also noted in Nobles the

essential role that the work-product doctrine

plays in the criminal justice system in

obtaining a fair trial for the accused:

Although the work-product

doctrine most frequently is

asserted as a bar to discovery

in civil litigation, its role

in assuring the proper function-

ing of the criminal justice

system is even more vital. *

The interests of society and the

accused in obtaining a fair and

accurate resolution of the

question of guilt or innocence

demand that adequate safeguards

See Upjohn v. United States, 449 U.S

383, 389 (1981):

The attorney-client privilege

is the oldest of the privileges

for confidential communications

known to the common law. 8

J. Wigmore, Evidence 82290

(McNaughton rev. 1961). Its

purpose is to encourage full and

frank communication between

attorneys and their clients and

thereby promote broader public

interests in the observance of

law and administration of

justice. The privilege rec-

ognizes that sound legal advice

Or advocacy serves public ends

and that such advice or advocacy

depends upon the lawyer's being

fully informed by the client.