Hutchinson v. People

HUTCHINSON, Petitioner, Ronald PEOPLE State of

Colorado, Respondent.

No. 85SC510. Colorado, Court of

En Banc.

Sept. 1987.

Rehearing Denied Oct.

ney-client privilege, his constitutional counsel, to effective assistance of his con- privilege against stitutional self-incrimina- tion, protected confidentiality and the work-product doctrine. We now re- convictions on the verse defendant’s grounds that the trial court’s decision to permit prosecution to call the defense- in its retained case-in-chief absent compelling justification or denied waiver the defendant his constitutional effective assistance counsel. I. January

On a man entered a branch of the Union Bank in Denver and receptionist asked the for a blank check. receptionist When the asked if he had ordered, replied his checks the man receptionist had done so. The directed wife man to the second floor of the bank. changed He then stated that he had only deposit slips. that he needed mind and slips The man took several blank and de- receptionist recognize parted. The did not regular thought and the man as a customer he seemed and that his uncomfortable trial, suspicious. At she iden- actions were Vela, De- David F. Colorado State Public person defendant as the whom tified the fender, Hostetler, Sp. Deputy Richard A. recep- in the The she had observed bank. Defender, Denver, petitioner. Public for supervisor informed the bank’s tionist’s suspicious man had taken head teller that Woodard, Gen., Atty. Duane Charles B. deposit slips. The head teller some blank Howe, Gen., Deputy Atty. Richard H. Chief immediately alerted the teller at Gen., Little, Forman, Sol. David R. Asst. drive-in window to be aware branch’s Gen., Denver, Atty. respondent. for slip. any person using deposit a blank ROVIRA, Justice. thereafter, Shortly the drive-in window a man who matched the granted We certiorari to review an un- teller observed description given by the teller published opinion appeals general of the court of head up pneumatic to one of the tubes that affirmed the Denver District Court drive defendant, Ronald used to transact business at the drive-in convictions Hutchinson, second-degree forgery, window. The teller observed a woman for 18-5-103, (1978 passenger in the side Supp.), 8B C.R.S. & 1983 with short dark hair § The conspiracy second-degree to commit of the car and no one the back seat. 18-2-201, put Pauline forgery, 8B C.R.S. man two checks made out to § granted deposit slip pneumatic Pine into the Certiorari was to consider whether to the prosecu- the disclosure to and use tube carrier and sent the carrier deposit slip The that $200 tion at trial of the defendant’s teller. indicated samples deposited was to be obtained a defense-retained ex- was to be and $287 statements, pert compared opinions, and the and con- returned cash. teller signature deposit slip clusions of the with the one violated the confiden- Although sig- tiality protected by the defendant's attor- on file for the account. slip appeared presented were deposit authen- partial nature on deposit to her tic, suspicious bank because account. Pine teller testified at trial that had from the head tellef. she neither alert she received endorsed the checks nor filled parties out the deposit slips, gave told the car nor She anyone per- deposit sign both and wait mission to would have checks her name use her ac- count. prior to withdraw cash until checks were She also stated that to Janu- ary 13,1983, paid by drawee The woman in salary previ- the bank. cancelled check requested ously the teller return the the car to issued to her been had stolen from complied, par- the her employer. signature, checks. The teller and Pine’s the name bank, of away. ties The teller the her drove identified and her bank account number put who were defendant as the man car on endorsed the stolen check. The in two presented the checks the carrier. checks the defendant for deposit were drawn on the accounts of A short time later a drive-in teller at a Mark Bove and They Edward Robinson. of second Denver branch the Union Bank reported had the as checks stolen. Bove a Hispanic observed male and female and sign Robinson did not make out or and pneumatic to A child up drive the tubes. had given anyone permission to com- years age under ten was the back seat plete sign or the checks. presented of the car. The male checks for deposit that bore the same name as the The defendant’s wife testified that her friend, presented Terry Smith, checks that had been at the first requested had the de- parties making deposit branch. The the fendant and his wife to take Smith past her deposit. also cash back on the The bank deposit wanted so that she could some Smith, requested according teller identification the because checks. to the defend- wife, first branch had advised her that two indi- ant’s inwas the back seat the car deposit allegedly viduals had tried to stolen with young the defendant’s son. The de- fendant, car, placed checks and withdraw cash. The teller the as driver the pair heard the confer. The then spoke man told Smith’s checks the carrier and the teller that the had all with the woman left identi- the teller. When first branch cash, give fication at home. The teller confirmed that Smith’s bank would not her the signatures deposit the on the checks and defendant drove to another branch Smith slip appeared signature to again placed match the on and her file checks the carrier account; however, spoke for the she and with the teller. informed the parties that without only identification fingerprint The defendant’s was on one could deposit the entire and amount checks, and the defendant conceded any pair receive cash. The left the checks checks; claimed, passed that he had the he departed. with the teller and The teller however, passed that he had the checks at plate noted the license the number of ve- request person. the of another The effect hicle. of his defense was a denial that he wrote supervisor

The second drive-in teller’s the checks knew that the checks were the People argued identified defendant as the the man who invalid. The de- participated in super- forged writing the transaction. The fendant on the had the recalled, however, signatures presented visor them payment. that the checks and for presented Thus, during key the transaction issue in the case the did not Further, match one identity person the on file. the who the she de- wrote deposit slips. scribed the woman in the the light- car checks and as skinned black woman. The supervisor also trial, sought Prior counsel au- noted that she had met Pauline Pine’s hus- retain, thority expense, an ex- at state band on one and occasion that the knew pert handwriting analysis order man was not her husband. prepare consult with presented

The deposit checks on prosecution both cross-examination of witnesses analysis occasions were issued to and independent and endorsed in to conduct an handwriting name Pauline Pine. The The checks evidence. checks, granted questioned motion and a mo- ten the he stated that handwriting authority finger- tion obtain from requesting the defendant’s ex- exemplars emplar writing prints handwriting from was similar to the on and respects. checks in several defendant. second expert, police officer, another requested Subsequently, People also testified he not form could district court to allow the opinion exemplar based the defendant’s handwriting expert call retained tremors, pauses, because it contained and defense, Osborne, a witness on Rolland hesitations. These characteristics indicated People. behalf of the Defense counsel exemplar had deliberately been decided stated that the defense had not to produced represent did not natural opposed People’s call the author, writing according of its to the sec- request. attorney- The court that the ruled expert. ond protected any client communica- Osborne, expert, the defense-retained tion between defendant and the de- handwriting was the expert testify final to expert prose- fense-retained and denied the during People’s the case-in-chief. Osborne proceeded request. cution’s to he exemplar described had an how obtained trial, and the court declared mistrial on by from having complete the defendant him July jury when the was unable to prepared some by dictating forms and the reach a verdict. appeared information on ques- that the began July Before the second on tioned checks the to fill in defendant the trial reversed its decision According simulated blank checks. to Os- regarding People’s the the use of defense- borne, the defendant took excessive expert. retained The court ruled that un- amount complete exemplar, of time to the 16(II)(b), der may require Crim.P. the court and feeling” Osborne had “an intuitive prosecution the to defendant disclose to the writing up the was defendant to his reports expert the or the statements of and capability. level of Osborne stated that he tests, the experiments, results of scientific did not the believe defendant had written comparisons though even the defendant writing the checks because the on them expert did not testify intend call the higher writing involved a level of skill than at trial. The court further ruled that the the defendant had demonstrated. Osborne privilege against self-incrimination, the at- concluded by discussing his sev- torney-client privilege, work-prod- the and eral similarities between the checks and the protect uct did not doctrine the defense-re- exemplar, including defendant’s the defend- becoming prosecu- tained from misspelling ant’s of the words “settlement” tion’s witness. The court determined that and misspelled “Edward” had been examination of Osborne questioned checks. On both the any would exclude communication between checks, exemplar and the words had him counsel, and the defendant or defense spelled been “settelment” and “Eward.” including consultation; any advice or Os- At the testimony, conclusion of his Os- testimony, borne’s however, could include borne made a statement for the record analysis his handwriting exemplar. presence outside jury. of the He indi- Three handwriting experts testified at that, examiner, cated aas document his expert, second trial. The first a Den- relationship depends his with client to a police officer, ver described how he had degree upon credibility, trust, considerable handwriting exemplar obtained a from the and ethical behavior. stated Osborne his The expert defendant. believed that by belief he is party that when retained one disguised defendant had his legal proceeding he becomes an exten- required because he had excessive time to attorney-client sion relationship and complete sample, which was character- orally his opinions pro- communicated are ized shaky writing. broken and Al- discovery by tected from though give any opin- privilege. could not gen- if Osborne believed that it ion as to whether the had erally defendant writ- known became that the expressed de- II. opinions could utilize employed never be counsel he would fense troubling This case raises and diffi emphasized He counsel. by defense questions concerning cult issues on the testify as a he available development frontier of the of the law. retained the state. if first witness define, We are asked to in the context of pres- testified outside also Osborne case, evidentiary and constitutional had obtained jury that he ence of the proper prosecution limits of use of evidence samples request writing defendant’s prepa witnesses derived from defense by giving the defendant defense counsel rations for trial. defense coun- introduction from a letter of defendant would sel to ensure that the The issues this case arise in connection him. Osborne to talk to When be reluctant growing with a trend in Colorado else- obtained the the defendant and interviewed permit pretrial prosecution where to dis- repre- him he writing samples, he told covery aspects of the defendant’s case. counsel, on his that he was sented defense Florida, E.g., Williams v. designed as- side, statements and made (1970); People L.Ed.2d that Osborne was the defendant sure 531 P.2d 626 District Colo. of the defense. Before present on behalf (1975). Accompanying this trend has been prosecution, Os- subpoenaed he was narrowing interpretation criminal of a with defense counsel also consulted borne privilege against self-incrimina- regarding the cross-examination tion, thought which was once to bar virtual- prosecution’s expert witnesses. See, ly discovery all in criminal cases. dis closing argument, In the assistant Allis, generally Limitations on Prosecu- attorney emphasized “telling” the ef trict Discovery torial the Case spelling fect of the consistent errors and of Defense Federal Courts: The Shield argued “extremely this was crucial that of Confiden- (1977); Kessel, jury The found circumstantial evidence.” 50 461 tiality, S.Cal.L.Rev. guilty second-degree of for the defendant Discovery Privilege and the Prosecutorial gery conspiracy to commit second-de and Accommoda- Against Self-Incrimination: gree forgery. The court sentenced district Hastings 4 Capitulation, Const. tion or of the defendant to concurrent terms seven (1977). L.Q. 853 forgery years penitentiary for and increasingly made prosecutors As have years conspiracy.1 three The defendant discovery powers, use of their new-found appealed, appeals and the court of affirmed arisen increasing number of cases have appeals his convictions. The court of relied Perez, People (Colo.App. attempts by v. 701 P.2d 104 to involving the 1985), appeals the de which court of experts defense- use defense-retained attorney-client privi clined to extend the against the defendant. evidence obtained lege to exclude in the case-in- remains a validity practices of these The by originally handwriting expert chief a dispute, of and the cases dis subject some ap retained the defense. hinge largely on fac cussing them seem to peals handwriting exemplars also held that attempts pro judicial tual variations protection are not entitled to the under between vide a fair and coherent balance privilege against fifth amendment self-in prosecution and the powers of the the crimination. The court not address the did the criminal rights of the defendant under defendant’s effective of counsel assistance jurisdictions. practices particular justice claims, work-product holding doctrine Smith, Edney ex rel. v. States See United simply the conten that defendant’s other (E.D.N.Y.1976), 1038, 1040 F.Supp. 425 granted tions were without merit. We cer- (2d Cir.), 556 F.2d 556 aff'd, tiorari to review the defendant’s claims. felony charge aggravated range for which he subse- trial of a

1. The sentences were in the defendant, See quently 18—1—§ convicted. because the at the time he committed was (1986). case, 105(9)(a)(IV), awaiting C.R.S. on bond 8B crimes 880 A.

431 U.S. S.Ct. (1977).2 The sixth amendment to the Unit II, ed States Constitution and article sec of this nature We have addressed issues 16 of guar tion the Colorado Constitution Rosenthal, People P.2d before. In v. right antee criminal defendant (Colo.1980), held that the we right counsel. That is a fundamental com against prevented the self-incrimination ponent of our justice system. criminal calling from as a witness Cronic, 648, 653, United States v. 466 U.S. guilt during phase of a case-in-chief 2039, 2043, (1984). 104 S.Ct. L.Ed.2d privately retained criminal trial defense universally accepted It is now lawyers psy- psychiatrist order to elicit from the representing defendants in criminal cases incriminating chiatrist admissions of “necessities, are not luxuries.” Gideon v. Roark, People defendant. Accord 335, 344, Wainwright, 372 U.S. 83 S.Ct. (Colo.1982). People P.2d v. District 792, 796, (1963). pres L.Ed.2d Their (1975), Court, Colo. 531 P.2d 626 ence is they provide essential because upheld constitutionality of Colorado we through rights means which other prosecutorial dis- permitting rules limited the defendant secured. are Without coun covery aspects of the defense case. sel, right itself would be “of However, we held that rules could Cronic, little avail.” 466 U.S. at permit discovery be construed to 2043; Alabama, at Powell reports and statements that the defendant 45, 68-69, 53 S.Ct. 77 L.Ed. 158 did not intend to use at trial. We also held rights Of all the that an accused protected by that a criminal defendant is has, person right represented by to be doctrine, work-product although didwe pervasive counsel is far the most for it specify protec- boundaries ability affects assert any tion. rights may Cronic, other he have. year, Earlier this in Miller v. District Indeed, U.S. at (Colo.1987), 737 P.2d 834 held significant component counsel is a psychiatrist retained of a defendant’s fundamental to a counsel assist in preparation Washington, fair trial. v. Strickland 466 agent an defense is of defense counsel for 668, 684-85, 2052, 2062-63, 104 U.S. S.Ct. purposes privilege, (1984). thus, by was privilege covered that reason, recognized that it has For been by when prosecution testify called to at right right that the to counsel includes the pretrial a hearing. We also held that to effective assistance of counsel. waived the defend- Richardson, 759, McMann v. 397 U.S. 771 ant’s of assertion a mental status defense 14, 1441, 1449, 14, n. 90 S.Ct. n. 25 L.Ed.2d alone. (1970); Norman, People 763 v. 703 P.2d

Today are (Colo.1985); we asked to 1261, determine the People White, 1272 v. propriety prosecution's 422, 417, 69, use in its 182 514 Colo. P.2d 71-72 (1973). case-in-chief of a defense-retained hand- federal and state constitutions writing expert and exemplar provided an envision role of counsel as critical to expert’s for the ability system use. We hold the adversarial to prosecution’s Strickland, use of just a defense produce in its results. 466 U.S. 685, case-in-chief the absence of premise waiver at S.Ct. at 2063. The of- compelling justification right violates a criminal effective assistance counsel right —indeed, premise constitutional adversary sys- to effective of our general assistance counsel. partisan tem in advocacy —is appears It from the People concerning record that the did address the use of this information about learn Osborne’s conclusions and the are related to issues of dis- exemplar through discovery procedures covery defense important and are because seem to through phone prosecutor but arising call increasing be more often because of expert. discovery procedures. we issues use of promote reasonably on both sides of a will best render effective assistance to his client. objective guilty be the ultimate free. Cron White, go Colo, convicted and the innocent 422, 514 P.2d at 71. ic, 655, at 2044. The 466 U.S. at S.Ct. In increasing an cases, number of right to effective assistance of counsel is proper preparation requires a defense require thus the of the accused to attorney to expert. consult an Criminal prosecution’s case to survive the crucible cases commonly complex involve issues re Id. testing. meaningful adversarial volving medical, psychiatric, around scien 656, 104 at 2045. If the U.S. at S.Ct. accounting tific or concepts. Frequently, process character as a confronta loses its types cases, in these it only is not desir adversaries, tion the constitutional between able—but absolutely vital—that a defense Id., guarantee is violated. 466 U.S. at 656- attorney an expert guidance consult 57, 104 S.Ct. at 2045-46. and interpretation. Without such assist ance, attorney an may be unable to ration carrying duty out his pro ally determine evidentiary technical and assistance, legal vide effective counsel strategy properly prepare or to for cross- paramount duty loyalty. his client a owes prosecution’s examination of the witnesses Sullivan, 335, 346, yler 446 U.S. presentation or for physical Cu or rebuttal of (1980); L.Ed.2d 333 E.g., Miller v. District evidence. Castro, People v. 657 P.2d 943-46 838-39; United ex 737 P.2d at States rel. (Colo.1983). Similarly, a defendant is enti Smith, Edney F.Supp. representation by tled to counsel that is (E.D.N.Y.1976), aff'd, 556 F.2d 556 (2d reasonably competent. Strickland, Cir.), 2065; Norman,

U.S. at S.Ct. at L.Ed.2d 276 In some in stances, expert may carry 703 P.2d at 1272. To be needed as a out this man date, defense witness to establish a defense or to duty counsel has the to consult with upon powerful rebut a case built inves important the defendant on decisions and tigative Consequent arsenal of the state. keep impor the defendant informed of ly, it cannot be denied that defense coun developments tant in the course of the sel’s access to assistance a crucial Strickland, prosecution. 466 U.S. at assuring element in a defendant’s 104 S.Ct. at 2065. Additionally, part as a legal assistance, ultimately, effective representation, of his counsel duty has a fair trial. make investigations reasonable in connec tion with the case or to reason, make a reasonable For that sanction the cannot particular decision that investiga makes decision this case to offer unnecessary. Strickland, tions handwriting expert 466 U.S. at the defense’s as a wit- 691, 104 general compelling S.Ct. at 2066. As ness in its case-in-chief. Absent mat ter, waiver, proper justification a or believe that such investigation of the we case is practice right a violates a defendant’s to essential for adequate representation. People White, effective assistance of counsel. v. 417, 421-22, 182 Colo. (1973). P.2d As we have said: Heretofore, legal as and both a Only through pre-trial preparation can matter, practical expert’s the defense rela the defendant be assured that facts will tionship with the defendant and counsel be discovered poten- which will disclose protected by has been from intrusions tial defenses to reasonably diligent and recognized state. The law has several doc competent defense In counsel. the ab- degree trines that afford a of confidentiali adequate pre-trial sence of investiga- ty expert-defense relationship. to legal knowledge- tion—both factual and Thus, expert by made to the statements — preparation impossible. able for trial is protected may by defendant and counsel be knowledgeable preparation, Without Miller v. Dis attorney-client privilege. Court, trict reliably Similarly, defense counsel cannot exercise 737 P.2d at 838. legal and, it, judgment therefore, 16(II)(b), cannot have construed Crim.P. we prosecution discovery ine disruptive of few intrusions more to does authorize of efforts if defense counsel. expert’s reports or statements an at will not be used trial. Peo information accept reasoning If were we to Court, 187 Colo. ple v. District case, People attorneys this Additionally, al 531 P.2d might experts deterred hiring be from lest though of is not scope the doctrine they inadvertently substantially create circumstances, work- clear these against contribute to the may also from disclo product rule shield Or, hired, expert their clients. if an were expert. produced materials an sure attorney an might to have insist limited Court, People at 342- District 187 Colo. protec- v. communications to assure client circumstances, 531 P.2d at 631. some tion expert if the were called as a state may particular protection, to witness. As a privileges apply defense counsel related might also tend to hire experts. 13-90-107(l)(d), experts those whose types E.g., § opinions predictable are more than (1973 (f), (g), Supp.) (privi & 6 C.R.S. —rather independent experts might advice leges physicians, surgeons, registered —whose helpful, risky be more but to more obtain. nurses, public professional certified ac result, believe, marginal would be countants, psychologists). licensed And gains truth-seeking for the function of the sometimes, against judicial process, damage but severe to the may prohibit prosecution self-incrimination ability attorneys of defense provide ef- expert of an use statements where the fective assistance of counsel. expert “conduit,” repeating, is as a state Therefore, approve People ments made the defendant. we cannot the use Roark, (Colo.1982); expert defense counsel’s People P.2d fashion em- ployed case. practice this Such a is Rosenthal, (Colo.1980). 617 P.2d 551 meaningful inconsistent with the adversari- matter, too, practical expert As a exchange guaranteed by al the sixth likely hired defense counsel feel II, amendment and article section degree loyalty to the defendant’s cause. Colorado Constitution. As the We need ascribe fact base mo- said, judicial process Court has when the part indeed, on the the experts; tives loses its character as confrontation be- adversary nature of the process, confi- adversaries, tween to counsel has dentiality surrounding legal representation 656-57, Cronic, been violated. 466 U.S. at professional and partic- norms and ethics of at 2045-46. experts may ular all foster this attitude of support We draw for our conclusion from loyalty to the defendant. underlying the fundamental tenet our ad We believe the confidentiality loyalty system versarial inherent in defend traditionally consultants enjoyed guarantees counsel, process ant’s due by defendants and defense counsel is a privilege against and the self-incrimination crucial element in legal repre- the effective require the defendant has a sentation of the A relationship defendant. investigate case, its own permits defendant, of trust counsel and prove find own evidence and its own engage in a full and frank Wright, facts. See United States v. interchange, affording counsel an accurate (D.C.Cir.1973); F.2d Miller v. and honest assessment of the defendant’s 838-39; District P.2d see case. Without a relationship, such the as- Marshall, Noggle also 706 F.2d expert, sistance of the and thus defense Cir.), (6th counsel, likely to be ineffective. (1983) (Ed C.J., wards, dissenting). Consequently, should not permitted be upon intrude this relation- Our is in decision accord with State v. ship as a matter of course and convert Mingo, (1978), a 77 N.J. 392 A.2d 590 expert defense potential into a witness-in- where the Jersey Court New against chief imag- defendant. We a Mingo, can reached similar result. In a de- expert; in handwriting expert majority” concluded that the “vast fense of situa- tions, noted, certain notes the court ability had written the state’s the defendant rape potentially necessary expert him in a and at- obtain incriminated testimo- ny Accordingly, defense would be tempted robbery. unhampered by ruling. expert Mingo, not to call the as a 392 A.2d at counsel chose 595. In the rare witness; state, however, subpoenaed involving case experts, few available held, his in its the trial appro- and used court could take prac- priate prevent action to The court held that this a case-in-chief. defendant from “scooping-up” experts the available in the defendant’s to coun- tice violated Mingo, field. A.2d at 595 n. 3.3 sel under the sixth amendment and Jersey New Constitution: Similarly, in Alvarez, United States v. attorney’s safeguard (3d To the defense abil- Cir.1975), 519 F.2d 1036 the Third Cir- ity provide the effective assistance cuit found a violation of a defendant’s provi- guaranteed by these constitutional “sixth amendment privi- sions, permitted lege” it is essential that he be where a expert, psychia- defense a developing case, investigative full latitude a trist prosecu- used tion proceeding meritorious defense on his client’s be- as a witness in a to deter- half. This latitude will be circumscribed mine the defendant’s sanity. The court potentially if defense counsel must risk a stated:

crippling revelation to the State of infor- The issue here is whether a defense mation discovered in the course of inves- involving counsel in a potential tigation which he chooses not to use at insanity defense of must run the risk trial. psychiatric expert whom he hires respect to advise him with to the defend- Mingo, 392 A.2d at 592. The court also may ant’s mental condition be forced to stated that: involuntary government an be witness. attorney completely A defense should be would, The effect of such a rule making free and unfettered in a decision think, have the inevitable effect of de- concerning as fundamental as that priving defendants of the effective as- retention of an him. assist Re- sistance of counsel such cases. A upon confidentiality liance of an ex- necessity in- psychiatrist will of make pert's aspect advice itself is a crucial aof surrounding quiry about the facts attorney’s ability to consult with crime, attorney alleged just as the will. and advise his client. If the confidential- attorney Disclosures made to the cannot ity of anticipated, that advice cannot be proof govern- furnish be used to attorney might forego seeking well ment’s case. Disclosures made to the assistance, such consequent to the detri- equally attorney’s expert should be un- protec- ment of his client’s cause. The available, placed on at least until he is tion from unwarranted disclosure we to- attorney stand. The must be the witness day mandate is indispensable element judgment free to make an informed with of a criminal defendant’s constitutional respect to the best course for the defense right to the effective assistance of coun- creating po- the inhibition of without sel. government tential witness. Mingo, 392 A.2d at 595. The court also Alvarez, 519 F.2d at 1046-47.4 found justification that the state had no using Indeed, involving prosecu- handwriting expert defendant’s most cases fully capable attempts psy- as it was defense-retained hiring its own tion use Alvarez, Mingo presented 3. The court in the defendant evidence went on to hold that the insanity including psychiatric testimony constitutional violation had been harmless error of prior prosecution's presentation because the defendant had to the of its conceded in that precedent, question case that he wrote the note in case. under Third Circuit but argued proving instead that the burden of note was not the one the United States bears the Thus, Nevertheless, Alvarez, expert’stestimony sanity. used in the crime. the that the merely parties agreed unexplained had been cumulative. for reasons 884 Moore, State v. pro lege); 837, have 45 experts, Or.App.

chiatric courts afforded 609 (1980) expert although (prosecution’s P.2d 866 tection for the defense use of de psychiatrist fense rebuttal many relied on the attor as witness vio cases courts have attorney-client lated privilege but ney-client privilege the basis for their error was as Kociolek, harmless); State v. 400, 23 v. District N.J. See Miller holding. 737 (1957) (prosecution’s State, 129 A.2d 417 (Colo.1987); Houston use of v. P.2d 834 602 psychiatrist defense as rebuttal (Alaska 1979) witness vi (prosecution use P.2d 784 attorney-client privilege).5 olated as psychologist defense-retained rebuttal attorney-client privilege implicated witness courts, however, Some have refused to found; did but waiver not reach sixth find a sixth amendment violation cases Lines, People issue); v. 13 amendment involving prosecution use of testimony 225, 500, Cal.Rptr. P.2d Cal.3d 119 531 793 nevertheless, experts; of defense we do not (1975) (prosecution psychia use of defense believe those control cases our decision attorney-client trists as witnesses violated Marshall, Noggle here. See v. 706 F.2d harmless); State v. privilege, but error was denied, (6th Cir.), 1408 cert. 1010, 464 U.S. Toste, 626, (1979) 424 178 Conn. A.2d 293 530, (1983); 104 S.Ct. Ed 78 712 L.Ed.2d (prosecution psychologist use of defense as ney, 1038; see also United F.Supp. 425 at attorney-client privilege witness violated Talley, States v. (9th Cir.), 790 F.2d 1468 — State, amendment); Pouncy v. and sixth denied, cert. U.S. —, 107 S.Ct. 224- (Fla.App.1977) (prosecution 353 So.2d 640 25, (1986); 93 L.Ed.2d 152 Granviel v. Es psychiatrists use of as defense witnesses telle, (5th Cir.1981), 655 F.2d 673 cert. de State v. nied, attorney-client privilege); violated 1636, 455 U.S. 102 S.Ct. Pratt, 516, (1979) 398 A.2d 421 Md. 1644, 870, (1982); 71 L.Ed.2d State v. (prosecution psychiatrist use of defense Craney, (Iowa), cert. de N.W.2d rebuttal nied, attorney-client witness violated 884, 255, U.S. S.Ct. privilege; impact possible on sixth Dodis, (1984); amend State v. L.Ed.2d 192 rights noted); People Hilliker, ment Carter, (Minn.1982); 29 N.W.2d 233 State v. 543, Mich.App. (1971) (Mo.1982), 185 N.W.2d 831 641 S.W.2d 54 (prosecution’s psychiatrist defense use of U.S.

as a privi witness violated present prosecution defendant would Consequently, his evidence not touched first. had on these expert’s testimony shown, the defense prejudice matters. Because no prosecution was used in what Alvarez "quite unconvinced” that a sixth Court was case-in-chief, although was in essence its evidence followed the defendant’s been amendment claim had made out. In sum- presentation. marizing prior point, cases the court stated: by analogy Supreme 5. We also note Court’s anything If is to be inferred from these ... Bursey, decision in 429 U.S. Weatherford counsel, right (1977), respect cases with it is L.Ed.2d which in- volved a intrusion into defense that when conversations with counsel have preparations. overheard, counsel’s trial in- constitutionality been Weatherford volved a convicted defendant’s suit under 42 depends conviction on whether the overheard 1983, alleging U.S.C. § a violation of the defend- produced, directly conversations have or indi- ant's to effective assistance of counsel. rectly, any of the evidence offered at trial. Weatherford, agent, an undercover and the de- Weatherford, 429 U.S. at 97 S.Ct. at 842. At fendant and two had others vandalized certain point, another disagree- the Court indicated its offices. After Weatherford and the defendant argument ment with Weatherford’s that: arrested, identity were Weatherford’s was not [Wjhenever a defendant converses with his protect disclosed to his undercover status. Sub- presence party counsel of a third sequently, request, at the the de- thought ally, to be a confederate and the de- fendant and his met and counsel conferred with fendant risk assumes the and cannot com- concerning Weatherford on two occasions plain party if the third turns out to be an trial, strategy. day On the Weatherford’s government report- informer for the who has identity pros- was disclosed eyewitness. he testified as a ed on the conversations to the ecution Court found and who testifies them at the about defend- counsel, no violation of the defendant’s ant’s trial. however, primarily because Weatherford had Weatherford, 97 S.Ct. at 843. any strategy not disclosed prosecution matters to the and his at trial on behalf

885 trial, permitted instance, a habeas er’s involved Noggle, psychiatrist defense use a as a witness in challenge the defendant’s murder corpus another psychiatric rebuttal witness Prior to the in trial. an Ohio conviction presented by Judge the defense. Wein- trial, had refused to the defendant murder acknowledged that the stein New York rule court-appointed psychia- cooperate with presented prospect of preju- substantial trial, sought defendant At trist. defendants, to criminal ultimately dice but testi- insanity and introduced the prove his constitution, including held that experts support mony psychiatric two of counsel, sixth amendment did not rebuttal, prosecu- In of his contention. privilege. mandate a more extensive psychiatrist witness that called a third tion by the defense who testi- had been retained significant Judge One factor Wein- opinion the defendant was that in his fied posture decision was the stein’s of that crime. mentally ill at the time not prosecution’s case. use of the defense Appeals con- appeal, the Ohio Court On rebuttal, only witness occurred on after the as an incident to the constitu- cluded that produced contrary psychi- defendant had counsel, a lim- guarantee of effective tional expert Judge as a witness. atric Weinstein psy- recognized for privilege ited should be emphasized expert also the defense defend- experts consulted chiatric was used to establish the defendant’s however, case, ant; the court found this guilt, only but on the limited issue of the de- by the defendant’s waived sanity. Additionally, judge defendant’s all, some, but not of his produce cision to holding desired to avoid a constitutional experts as witnesses. psychiatric legislatures deny that would courts and ap- develop freedom to new reasonable action, corpus the Sixth the habeas proaches to issues of this nature.6 calling Circuit noted that “a diffi- psychiatrist cases, the defense raised today deal with a Unlike these we Amendment,” question expert under the Sixth involving prosecution cult use of an case-in-chief, ultimately concluded that the balance but not on rebuttal. witness its guilt, so detri- drawn the Ohio court was not involved is the defendant’s The issue Moreover, represen- sanity. attorney’s effective issue of mental to not the limited expressed in prohibited by Nog- concerns prudential tation of his client as to be applicable to our Edney are less gle the sixth amendment. The court’s reason- this today. It is the function of primarily desire to decision ing was based proper scope of con- permit experiment and innovate in court to determine states to for criminal defend- guarantees developing area of the law. stitutional Accordingly, we do not ants in this state. probably Similarly, Edney, the most controlling. cases as regard these area, Judge influential base in this Wein- holding emphasize that our length we great stein the constitu- examined nature. Our decision today is of a limited evidentiary issues raised tional and expert use of involve rebuttal corpus challenge to a does not defendant’s habeas nonexpert During prosecution use petition- New York conviction. witnesses denied, (Iowa), 469 U.S. distinguish 668 cert. 347 N.W.2d 6. The facts also other cases in which (use (1984) courts have refused to find a sixth amendment 83 L.Ed.2d 192 105 S.Ct. violation because of use of the testi case-in-chief violated in state’s defense experts. ¿ n ., mony of defense United States respects but not sixth in some fifth amendment — (9th Cir.), denied, Talley, F.2d cert. amendment; only in case was contested issue —, 224-25, U.S. 107 S.Ct. 93 L.Ed.2d 152 Carter, sanity); S.W.2d State v. (1986) psychiatrist (prosecution used defense denied, (Mo.1982), rt. ce only on rebuttal after defense had offered testi (1983) (prosecution Estelle, psychologist); mony of a Granviel v. psychiatrist after de on rebuttal called defense (5th Cir.1981), U.S. 870, F.2d 673 psy testimony of another fense had introduced chiatrist); 1636, 1644, L.Ed.2d Dodis, N.W.2d 233 State (1982) (defendant cooperate refused to with (defense (Minn. 1982) as witness used psychiatrists aiding experts; state while his own stage pro only bifurcated illness in mental expert's testimony pertinent only to in ceedings). issue, issue); sanity guilt Craney, State v. Further, recognize ac- witnesses. v. District P.2d at we held cept Court that the view the defendant’s assertion aof mental inquiries into ineffective assist- claims of status defense alone did not waive his ordinarily ance of focus on counsel should to assert as cases. the facts individual See United applied testimony to the of a defense-re- 658, Cronic, 648, U.S. 104 States v. 466 psychiatrist. tained We a believe similar (1984); L.Ed.2d 657 S.Ct. principle applies here. 668, Washington, Strickland v. U.S. Nor can find we a waiver here 684-98,104 2052, 2062-70, 80 S.Ct. L.Ed.2d presented because defendant the testi (1984). Although claims of inef- some mony of suggest his wife which tended to dealt may fective assistance be with a Terry Smith, defendant, that and not the per basis, se we that the violation believe may responsible have been forging for the showing requires involved in this case of the checks. Since the defendant offered Cronic, prejudice to warrant relief. testimony prosecution’s his wife’s after the 657-662, 2046-48; U.S. at 104 S.Ct. at case-in-chief, we see no basis to Strickland, 691-96,104 construe 466 U.S. at at S.Ct. testimony implied as 2066-69; an waiver. Bursey, cf Weatherford 837, (1977) U.S. 97 S.Ct. Similarly, can find no compel we (suggesting showing prej- that a limited ling justification pros in this record for necessary).7 udice be should The standard testimony use ecution’s of Osborne’s in its in as set forth is Strickland whether there case-in-chief. is suggestion There no that that, probability is a reasonable absent the prosecution not could obtain other com witness, improperly used the factfinder experts petent in handwriting the field of respect- would had a have reasonable doubt Indeed, analysis. prosecution’s use of Strickland, ing guilt. 466 U.S. at police experts two staff witness turn, therefore, S.Ct. at 2068. We to the purpose es for this seems to refute that they apply facts of this case as to the proposition. standards we have enunciated. justified Nor do we it was believe for the B. prosecution to use Osborne in its case-in- First, may chief because the defendant have at- that conclude the defend tempted disguise to his confidentiality ant did not waive the of his expert’s thus thwart the efforts of the purposes conclusions for experts. Initially, it testimony use of we note is prosecu Osborne’s not tion’s from the plea case-in-chief. The clear record whether the defend- defendant’s guilty attempt disguise cannot ant did fact to be construed as a hand- completely writing. did, waiver emasculating without Even if it assumed he be protection necessary we deem to be it also attempt must be assumed that this effective assistance of counsel. In Miller extended his own because Os- Cronic, prejudice In appropriate Court inquiry tión of described is without presump- narrow terms the Cronic, instances which a into the actual conduct the trial.” prejudice may indulged tion of be in ineffective at 104 S.Ct. at 2047. The fact that 657-62, Cronic, assistance cases. 466 U.S. at performance a limitation on is counsel’s due to at presumption S.Ct. 2046-48. Such is "external constraint" rather than counsel’s warranted, held, it in "circumstances that are so incompetence own was not viewed as determi- likely prejudice the accused that the cost of Cronic, native. 466 U.S. at 662 n. litigating particular their effect is in a un- at 2048 n. 31. The noted "the Court Cronic, justified.” at at U.S. recognized the effective assistance of counsel is example, complete 2046. As an it cited denial sake, not for own but because of the effect it stage of counsel at a critical of a defendant's ability has on accused receive a fair acknowledged presumption trial. It also that a Therefore, concluded, trial." it that ”[a]bsent may appropriate be in some cases in which challenged some effect of conduct on relia- "although counsel is available to ac- assist the bility process, of the trial the Sixth Amendment trial, during cused any the likelihood that law- Cronic, guarantee generally implicated.” yer, one, fully competent provide even could U.S. at 104 S.Ct. at 2046. presump- effective assistance is so small that a testified to the defendant’s prosecution borne also labo- clearly recognized the handwriting style. significant impact rious and deliberate spelling therefore, appear, proving does not errors would have in This be a its case. trial, coop- the defendant refused to defendant’s first case where without this evi- dence, a mistrial prosecution’s experts Thereafter, erate had resulted. with while ran actively aiding expert. Compare, seeking his own the risk of 1408; use this Granviel, despite evidence 706 F.2d at the uncertain Noggle, state of the Subsequent- law this area. F.2d at 673. trial, ly, emphasized to Moreover, the real value of Osborne’s jury “telling” impact of this evi- to demonstrate the consist- argued dence and that it “extremely ency spelling by made the errors defend- crucial circumstantial evidence.” We do by forger ant made with those prosecution not think the should now be appears checks. it that Osborne say heard to the admission of Osborne’s designed analysis specifically check testimony was harmless. Accordingly, we spelling idiosyncraeies for such whereas conclude that proba- there is a reasonable police experts did not. Consequently, bility that the defendant’s conviction would justification permitting we see no in prosecution’s have resulted but for the expert simply to use a defense unjustified use of testimony Osborne’s experts because its own failed to conduct its case-in-chief. own their tests a manner that could have Consequently, we reverse and remand produced equivalent results to those of the for new trial.8 expert. Furthermore, we prosecu- believe the VOLLACK, J., dissents. tion’s use of Osborne’s espe- ERICKSON, J., joins in the dissent. cially unjustified because of the assurances Osborne made to the defendant in order to VOLLACK, Justice, dissenting: obtain cooperation. the defendant’s Sim- I respectfully disagree dissent I because ilarly, defense counsel’s use Osborne for by majority, with the result reached strategy weighs consultation on trial majority’s and with the sixth amend against any argument prosecu- that analy ment/effective assistance of counsel justified. tion’s actions were arriving view, my sis in at that result.

Finally, by analysis we conclude that without tes- the case can be resolved under timony Osborne, there is a reasonable the Colorado Rules of Criminal Procedure probability jury that the attorney-client privilege. would have had a and the 13-90- § (1986 concerning reasonable doubt Supp.). Relying the defend- 6 C.R.S. on the guilt. ant’s We note principle that it was not crucial well-settled that this court will not for the question show that the de- rule on a constitutional which is forged fendant question. checks in A not essential to resolution of the controver showing it, that the sy defendant had “uttered” I the court should before believe the checks with intent to defraud would resolve the case without resort to the sixth enough. However, Davis, have been evidence v. 627 P.2d amendment. Ricci forged (Colo.1981). personally agree defendant had I with the lan the check would also guage originally adopted Edney have been crucial as to his intent to defraud and would rebut seems undesirable at this time Smith: “[I]t merely passed claims that he the attor majority to canonize the rule on the checks knowledge ney-psychiatrist-client privilege without and freeze forged. were form it into a constitutional not amenable apply Because we conclude the defendant’s self-incrimination to the use of such testi- by effective assistance of counsel was violated mony. prosecu- Nor do we decide whether the prosecution’s testimony, use of Osborne’s handwriting exemplar apart tion’s use of the — attorney-client privilege, do not decide how the proper. expert from the use of the defense —was work-product privilege against doctrine and rule, statute, 11(b), change (1986) Crim.P. 7B (emphasis or further case- C.R.S. added). discovery provision This has been development.” F.Supp. law People held constitutional on opinion, its face. without (E.D.N.Y.1976), aff'd District Colo. P.2d 626 Cir.1977). (2d F.2d 556 (1975) District Court].1 [hereinafter 11(a)(1)provides Crim.P. 16 prosecutori- I. discovery “any al nontestimonial identifi- provided 41.1(h)(2)”; cation as prosecution’s use This case involves [Crim.P.] Crim.P. 41.1 exemplars defines report prepared by the defense-re- as nontestimonial identification. handwriting expert, tained well as the prosecution’s use of this as a wit- provisions Under these two of Crim.P. I the re- ness its case-in-chief. believe I report generated believe that port handwriting expert, is discoverable under Crim.P. which contained tests, attorney-client privilege, experiments, results of rather his “scientific comparisons,” amendment, is discoverable than the sixth controls use of prosecution.2 especially This is true since expert’s testimony report analyzes nontestimonial identifi- case-in-chief. cation, handwriting exemplars do not The defense-retained obtained the trigger fifth amendment self-incrimination handwriting exemplar gen- defendant’s and provisions.3 unambiguous language The report erated a which set forth his conclu- result, Crim.P. 16 calls for this and the sions, comparison based on a of the exemp- rights defendant’s fifth amendment are not handwriting forged lar and the on the at issue under these facts. checks in at issue the case. Crim.P. 16 11(b) provides for in discovery criminal II. cases, pertinent part: and states The prosecu- second issue is whether the Subject limitations, to constitutional the tion’s the use of defense-retained may require prosecut- trial court the that testimony witness’ in its case-in-chief vio- ing attorney permit- be and informed of attorney-client privilege. lated the The ex- ted inspect copy photograph and or pert procedure testified as which any reports experts, or statements handwriting exemplar, he obtained the his particular

made connection with the to the observations as manner which the case, including results ... exemplar, opinion defendant wrote scientific tests, experiments, comparisons. or had written defendant 1. phrase We also held District that "when the District "or Court Court included the to disclose compelled trial,” provide defendant is handwrit- information which will not be at used id. 341, ing 630, exemplar, his Fifth Amendment at at also P.2d found it against contravened, significant language self-incrimination is not in an earlier draft of rule, exemplar identifying physical discovery because the is an which "confined to those characteristic, reports rather than a communication and examinations which the defendant Colo, 340, privilege.” within the at 531 P.2d intended to introduce at the time of trial” was 41.1, replaced at 630. phrase "[s]ubject Under Crim.P. removed and with the evidence, exemplar Finally, is nontestimonial hence not constitutional limitations." Id. in its governed remand, by the self-incrimination limits of the instructions on the court directed the hearing gauge fifth amendment. trial "a court to conduct impact on Fifth Amendment discovery requested." of the which was 2. I Id. majority incorrectly believe inter- at at prets Court, 531 P.2d 632. People v. District Colo. P.2d 626 majority The cites context, District Viewing Court in this I be- District proposition 11(b) Court for the that Crim.P. 16 addressing discovery reports lieve the dictum does not authorize discovery applies which be used at will not expert reports reports if the not be will used possible context of fifth amendment violations. Maj. op. at trial. My interpretation at 881-882. physical The characteristic evidence at issue 11(b) of District Court is that Crim.P. 16 does not here is and nontestimonial nature does not permit discovery discovery where such would provisions. fall under fifth amendment result in a violation of the fifth amendment protection against Although supra self-incrimination. 3.See note checks, forged and a review of the similari- A. forged and between the ties dissimilarities I analysis believe that expert’s exemplar. checks and the defendant’s The testimony requires that recognize dis- trial court ruled that the could testi- tinctions between testimony as to confiden- fy regarding his observations of de- tial communications that occurred between analysis fendant’s manner and his the client and a expert, defense-retained exemplar, testify any but could not and testimony regarding “things which may he communications have had with de- expert] observed or [the discovered himself fense counsel or the defendant. without resort to the client’s admissions.” attorney-client privilege prohibits Friedenthal, Discovery and Use an Ad- disclosure of confidential communications verse Party’s Expert Information, attorney between client and his or (1962) Stan.L.Rev. [hereinafter agents attorney, of his when the communi- Discovery Testimony about a client’s ]. gaining cations are made in the course of confidential communications to his attor- legal counsel advice. Miller v. District ney’s agent qualifiedly protected under Court, (Colo.1987). 737 P.2d Colo- 13-90-107; section prohibition serves

rado’s statute is a codification of the underlying purpose of encouraging attorney-client privilege, the common law open and candid discussion between client pertinent part: id. at 837 n. and states in attorney. A v. District attorney An shall not be examined Colo, 550 P.2d at 324. without the consent of his client as to expert’s about an “observations any communication made the client to conclusions, apart from the client’s given him or his advice thereon in the him, communications to knowl- constitute[ ] professional course of employment; nor edge part [expert] which attorney’s shall an secretary, paralegal, would highly be material to the case.” assistant, legal stenographer, or clerk be 463; Discovery at San Francisco v. examined without the consent of his em- cf. Superior Court, 227, ployer concerning fact, 37 Cal.2d any 231 P.2d 26 the knowl- edge (1951). of which he acquired has in such capacity. recognized This court has that the attor 13-90-107(l)(b), (1986 Supp.). 6 C.R.S. § ney-client absolute, privilege is not and un attorney-client The privilege exists for the derlying policies “may social sometimes benefit of the client expressly and can be prevailing public conflict with other policies implicitly waived the client’s words or and, circumstances, in such the attorney- conduct. A 10, v. District 191 Colo. privilege give client way.” ... must Law 22, 315, 550 P.2d (1976), denied, cert. Morley Bernard D. v. MacFar Offices of 1040, 737, U.S. 50 L.Ed.2d 751 lane, 1215, (Colo.1982). 647 P.2d An (1977). Section 13-90-107(l)(b) has been analogous example conflicting pol social

held to extend to communications between exception icies is the crime-fraud to attor agents the client and of the attorney, based ney-client privilege, provides which recognition on the that attorneys require “communications between client and his help of others to effectively handle attorney privileged are not if are Miller, clients’ affairs. 737 P.2d at 837-38. purpose aiding made for the the commis general attorney-client present sion of a crime or of a future privilege strictly construed “in the inter continuing crime.” Id. bringing est of light relevant facts.” People Donovan, 473, 478, Cal.Rptr. permitted The trial court 57 Cal.2d 1, (1972).4 369 P.2d testify as to his observation that the de- Donovan, subjective knowledge, distinguished California Court as from his appraiser’s opinion held that an as to the value plaintiffs disclosures to counsel. This knowl property dispute did not fall within the itself, edge, privileged...." in and of is not attorney-client privilege sought "goes only testimony because the 478, Cal.Rptr. at 57 Cal.2d at 369 P.2d at 5. appraiser's to matter of the exemplar slow, in very fendant wrote the attorney-client under privilege); De- laborious,” “very forced manner. The ex- Giorgio, (R.I.1982) Fusco v. 440 A.2d 727 pert testified that he “felt that the Defend- (attorney-client privilege not violated where writing ant was not so much as he was attorney testified as to his former client’s drawing pictures_ simply It was draw- demeanor, and to his assessment of client’s ing letters, very carefully, very slowly, in a knowledge mind). and state of See also 8 very portion laborious manner.” This of Wigmore, Evidence at 558-591 § independent involved an ob- (McMaughton Rev. 1961 Supp.). & 1987 expert, servation made which was specific This exception to attorney- not related to the content or substance privilege limits, client is not without any confidential communication. where testimony regarding identifying rule, general “As a identifying physical physical characteristics in particular characteristics such as style one’s of hand unfairness,5 would result in or would cause writing, readily by anyone, observable are a violation of the defendant’s constitutional subject attorney-client privilege.” to the rights, a trial court could exercise its dis- Pipkins, United States v. 528 F.2d deciding cretion in disputed limit the (5th Cir.), n. 96 testimony. Nontes timonial evidence such as B. identifying physical serves as an character There is a distinction “objective between istic in the same manner as blood and hair ly particularizations” observable samples, scars, limp, or a voice character demeanor, client’s which are privileged, istic such stuttering. Observations of and confidential communications between physical characteristics constitute “an exhi attorney’s agent client, and the which bition which converts the viewer into an privileged. are Kendrick, United States v. eyewitness of material facts.” Discovery (4th Cir.1964). 331 F.2d In some at 465. For example, while a client can cases, the may observations even be “inex divulge refuse to the substance of state tricably intertwined with communications.” protected ments by attorney-client privi (Sobeloff Bell, JJ., Id. at 115 lege, specially he “cannot testify refuse to and re concurring). privilege veal scar itself merely [a] because he does not knowledge extend to obtained attorney.” showed it to the Id. See Unit independent observation, but ed States Weger, (7th 709 F.2d 1151 protect does Cir.1983) the substance of (attorney-client privilege confidential does not prevent communications from by prosecu disclosure of use “characteristics of “ tion in type style” case-in-chief. a letter fundamen written ‘[I]t tally lawyer client to her unfair to use because, like a incrimina hand writing exemplar, ting psychiatrist admissions to a “merely during are ‘iden tifying physical psychiatric part pros examination as characteristics.’” Id. at 1156); Gunn, (9th Darrow v. ecution’s case to guilt.’” F.2d establish his Cir.), denied, cert. 849, Craney, 668, U.S. State v. 100 S.Ct. 347 N.W.2d 99, (1979) (Iowa), L.Ed.2d 64 (applying 884, Califor law, nia 255, held privilege (1984) (quoting L.Ed.2d 192 Collins prevent does not attorney testifying from v. Auger, F.Supp. (S.D. 1082-83 “ as to his client, observations of 1977)). hand, includ Iowa On the other ‘[noth ing appearance client’s demeanor); ing policy of the [attorney-client] Regier, State v. 228 Kan. 621 P.2d privilege suggests that attorneys, simply (1980)(the physical disclosure of by placing accountants, character scientists or inves istics is not a confidential communication tigators on payrolls their maintaining jurisdictions 5. A number (trial adopted have prohibiting court erred in defense-retained "unfairness rule." see jurisdictions, For a list engineer testifying plaintiffs, from for the even Discovery at 482 n. 14. though witness). But see Sneddon v. defense did not intend to call him as a Edwards, (1959) Wash.2d 335 P.2d 587 offices, in their should be them able

invest all communications clients to such Jerry JOLLY, Petitioner, W. persons with a the law has not oper- the latter seen fit to extend when are ” The PEOPLE of the State ating Pipkins, their under own steam.’ Colorado, Respondent. 563, (quoting 528 F.2d at United States v. Kovel, (2d Cir.1961)). 296 F.2d No. 85SC265. I Applying principles, these believe the Colorado, Court of attorney-client privilege extends to ex- En Banc.

pert’s testimony as to confidential commu- Sept. 1987. nications and the client between Rehearing Denied Oct. 1987. attorney, or the client’s related to the ren- dering Pipkins, services.

F.2d the remainder expert’s testimony in this case involved comparisons of similarities and dissimi- forged

larities between the documents and exemplars. expert’s opinion forged

direct examination

handwriting had not been written

defendant.6 He testified that there were

“many” dissimilarity areas of between the forged documents,

exemplar and the con-

cluding fact, point most “[i]n

them are dissimilar.” basis,

On this I believe that the trial appropriately expert’s limited the tes-

timony; the testimony by record reveals no expert regarding any confidential com-

munications. Under these limited circum-

stances, admission of the ex-

pert’s testimony as to his observations and

handwriting analysis did not violate the

attorney-client privilege. Because ex-

pert’s testimony was limited this man-

ner, I would affirm the conviction. I re-

spectfully dissent.

I am authorized to state that Justice joins

ERICKSON in this dissent. 6. The jury: my representation writing testified before the "From true of the level of skill Defendant, then, comparison writing of his known with the writ- he could not have writ- checks, ing deposit slips, on the on the it was ten the face side or the backside of the checks my opinion deposit slips.” then and it is now if is a or the

Case Details

Case Name: Hutchinson v. People

Court Name: Supreme Court of Colorado

Date Published: Sep 8, 1987

Citation: 742 P.2d 875

Docket Number: 85SC510

Court Abbreviation: Colo.