396 P.3d 1095
Ariz.2017Background
- Defendant Josh Rasmussen was indicted for armed robbery and felony murder and gave notice he would assert an insanity (guilty-except-insane) defense.
- Rasmussen retained a psychologist as a trial expert and agreed to a joint (non-court-appointed) expert; both experts’ reports included statements Rasmussen made about the charged offenses.
- Defense produced the reports but redacted Rasmussen’s statements; the State moved to compel full disclosure under Ariz. R. Crim. P. 11.4(b).
- The superior court denied the State’s motion relying on Austin v. Alfred; the court of appeals granted relief, departing from Austin; the Arizona Supreme Court granted review.
- The Supreme Court addressed whether Rule 11.4(b) requires disclosure of a defendant’s statements in a voluntarily obtained expert report when the defendant asserts an insanity defense, and whether Fifth Amendment or other privileges bar disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 11.4(b) requires disclosure of statements in non-court-appointed expert reports when defendant asserts insanity | State: Rule 11.4(b) requires each party to make all written reports available, including defendant’s statements | Rasmussen: Austin permits redaction of defendant’s statements from such reports; 11.4(a)’s protection should be read into 11.4(b) | The court held Rule 11.4(b) requires disclosure of complete reports, including statements about the charges; disapproved Austin to the extent it allowed redaction |
| Whether the Fifth Amendment bars disclosure of statements made during voluntary (non‑court‑ordered) exams | State: Fifth Amendment protection applies only to compelled statements; voluntary exams do not invoke the privilege | Rasmussen: His exam statements are self-incriminating and protected by the Fifth Amendment | The court held the Fifth Amendment does not bar disclosure of voluntary-exam statements once defendant asserts insanity (waiver applies) |
| Whether work-product or other procedural protections prevent disclosure of such statements | Rasmussen: Compelling disclosure chills defense investigation and intrudes on work product | State: Work-product protects only retained-for-preparation experts not expected to testify; listing an expert as a trial witness waives protection | The court held work-product protects trial-prep-only experts, but when a mental-health expert is listed as a trial witness (insanity defense) the privilege is waived and reports must be disclosed |
Key Cases Cited
- Estelle v. Smith, 451 U.S. 454 (1981) (Fifth Amendment bars use of compelled psychiatric exam statements at trial)
- Kansas v. Cheever, 134 S. Ct. 596 (2013) (asserting insanity defense waives self‑incrimination protections for relevant psychiatric statements)
- Buchanan v. Kentucky, 483 U.S. 402 (1987) (voluntary psychiatric exams or presenting psychiatric expert testimony waives Fifth Amendment privilege for those statements)
- Tallabas v. State, 155 Ariz. 321 (1987) (defendant who presents psychiatric evidence consents to limited use of statements to rebut insanity)
- Austin v. Alfred, 163 Ariz. 397 (1990) (earlier authority permitting redaction under Rule 11.4(b)—disapproved insofar as inconsistent with this opinion)