Title : Non-testifying consultants: Does attorney-client privilege apply?
Non-testifying consultants: Does attorney-client privilege apply?
Is the work product of an expert who is retained only as a consultant -- not as a testifying witness -- confidential under the doctrine of attorney-client privilege?With courts around the United States divided, that was the question before the Georgia Supreme Court in the case of Henry Neuman of Georgia, which I reported on back in 2012.
During Neuman’s high-profile murder trial, the trial judge had allowed prosecutors to introduce the notes of two confidential defense consultants, whom they had identified by snooping through jail visiting logs. The notes contradicted the testimony of the defense’s testifying experts, and Neuman was convicted.
In a 6-1 decision, the Georgia Supreme Court came down solidly on the side of protecting confidentiality. The trial judge's error was harmful enough for the state high court to reverse Neuman’s conviction, paving the way for a retrial.
Non-testifying experts serve as “agent[s] of the defense team,” the court held, so all communication between them and attorneys falls under the privacy umbrella of attorney-client privilege. Even when an insanity defense is raised, “the cloak of privilege” only falls away at the point that defense counsel elects to call an expert as a witness, ruled the court.
Such protection is essential so that attorneys can vigorously defend the accused, by obtaining expert advice on evidentiary strategy or by consulting with multiple experts who may hold conflicting views, without worrying that they are creating adverse witnesses against their client, the court explained:
“The attorney-client privilege is vital in cases such as this one where the defendant’s sanity is at issue because the privilege allows the attorneys to consult with the non-testifying expert in order to familiarize themselves with central medical concepts, assess the soundness and advantages of an insanity defense, evaluate potential specialists, and probe adverse testimony…. [W]ithout the protection of privilege, the defendant’s attorneys run the risk that the psychiatric expert they have hired to evaluate the defendant will render an opinion inconsistent with the defense’s insanity theory and the expert will then be made an involuntary witness for the State.”
This is precisely what happened at Neuman’s trial. Psychologist Peter Thomas and forensic psychiatrist Rand Dorney had conducted initial screenings to assist Neuman’s attorneys in assessing the viability of a criminal responsibility defense. After the trial judge permitted prosecutors to subpoena their records, the defense was forced to call the two as witnesses in order to keep the prosecution from calling them as rebuttal witnesses.
The Georgia Supreme Court ruling is HERE. My prior blog post on the case is HERE. A Fordham Law Review article on this topic is HERE.
Hat tip: Denis Zavodny
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