# Amicus Curiae Brief — Smith v. Murray

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0257%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 477 U.S. 527

## Text

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

\
YU

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,
41

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,

47

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.
i

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)......

18

46

20

21

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

i

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)

ii

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)

lv

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).

3

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).

Vv
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

vi
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

2
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.

5

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

6

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
ve
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

‘?
et
~
am
ivy
c?

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

,

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11
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

12
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)

13

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
mMpOSSiDi‘t With an il mpiet
r a diagnosis that S missing kK
s of major mental iliness vid
ht have established a viab]
fense is irretrievabiy iost wt
rs, the risk f al rr
-_ ‘ : " = nark ;

ind ba that sweet i at

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18

; —_ 6 )
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).

19

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-

10
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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22
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).

23

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)

24

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)

———

25

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.

26

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

———

27
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).

28

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

29
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-

30

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.

31

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)

32

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

© (continued from previous page)
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)

33

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)

34

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).

35

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

36

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

37

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,

38

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

39

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)

40

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.

41

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 «

EE

42
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

43

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.

ad

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.

45

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

46
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.

See also, The Attorney-Client Privilege
and the Work-Product Doctrine, American Bar
Association 7 (1983).

47

assure the thorough preparation
and presentation of each side of
the case. 422 U.S. at 238.22

As early as 1826, this Court recognized the
essential function of the attorney-client
23

privilege.

Finally, in Estelle v. Smith, 451 U.S.

454, 469-471 (1981), this Court found a
Sixth Amendment violation when the contents
of a court-ordered psychiatric examination
of the defendant's competency to stand trial

were used by the State in the sentencing

hearing. Although the facts in Estelle are

different from those in the case at bar --

i.e. in Estelle the exam was court-ordered,

not, as here, done at the request of the
defense -- nonetheless, the underlying

reasoning of Estelle is fully applicable to

the case at bar, and supports reversal. In

Estelle, this Court found that the

22 one Court, however, in Nobles found

that the privilege had been waived. 422

U.S. at 239.
23 see Chirac v. Reinicker, 24 U.S. 280,

294-295 (1826).

48

examination of the defendant by a psychifitrist
was a "critical stage” in the proceedings
against the defendant, within the con-

templation of Powell v. Alabama, 287 U.S.

45, 57 (1932). That being so, the assistance
of counsel was needed to evaluate the possible
uses of the examination, and to weigh the
comparative risks and benefits of such an
examination before deciding whether to

submit to the exam. Estelle v. Smith, 451

U.S., supra, at 471. In the case at bar,

the same considerations apply. Petitioner

Michael Marnell Smith is equally unable

without counsel to evaluate the benefits
and risks of a psychiatric examination, or,

without legal counsel, to develop possible

defenses." The strategy decisions necessary

24 In Powell v. Alabama, 287 U.S., supra,
at 69, the Court found that the accused has
no ability to cope with the complexities of
the law unassisted:

Even the intelligent and educated
layman has small and sometimes no
(continued on next page)

— —

49
for an effective defense are impossible
without counsel. Thus, the same con-
stitutional principles articulated in

Estelle v. Smith, supra, compel the

conclusion that in the case at bar the
Sixth Amendment protects internal strategic
decisions of the defense from being dis-

covered or used by the prosecution.

Thus, the experience of the courts in
New Jersey over nearly three decades

establishes that the administration of

24 continued from previous page)
skill in the science of law. If
charged with crime, he is in-
capable, generally, of determin-
ing for himself whether the in-
dictment is good or bad. He is
unfamiliar with the rules of
evidence. Left without the aid
of counsel he may be put on trial
without a proper charge, and con-
victed upon incompetent evidence,
or evidence irrelevant to the
issue or otherwise inadmissible.
He lacks both the skill and
knowledge adequately to prepare
his defense, even though he has

a perfect one.

50
justice is benefitted when counsel for the
defendant has the latitude to explore all
possible defenses without the chilling
effect caused by the spectre of having to
turn such a report over to the State. In
New Jersey, such a result is grounded in
the Sixth Amendment, and would protect
reports such as Dr. Pile's from use by
the State. The New Jersey experience,
along with the prior decisions of this
Court, make it plain that the Sixth Amend-
ment forbids the abhorrent procedure

utilized in this case.

CONCLUSION

Based on the foregoing, amicus respect-
fully submits Unat this Court should reverse
the judgment of the Fourth Circuit, set
aside the sentence of death, and remand the

matter for a new trial at which the

Commonwealth of Virginia would be barred

51
from calling Dr. Pile as a witness or using
any of the material contained in Dr. Pile's
report.
Respectfully submitted,

ALFRED A. SLOCUM
ACTING PUBLIC ADVOCATE

ov Linda 4 (oe wat)

Linda G. Rosenzwe td

Director

Division of Mental Health
Advocacy

The assistance of Patrick D. Reilly in
preparation of this brief is gratefully
acknowledged.

DATE: December 5, 1985

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0257%3A10. Public record. Not legal advice.