Lead Opinion
OPINION
delivered the opinion of the Court,
This is a case of first impression concerning the attorney work-product doctrine.
Appellant was convicted of murder based, in part, upon his DNA being found at the crime scene. After the State’s DNA experts were cross-examined about the accuracy of their DNA testing techniques and results, the State, on re-direct, questioned them about the identity and “eminent” qualifications of another expert, Robert Benjamin, who was “involved in the case.” The State’s experts also testified that they had forwarded their reports to Dr. Benjamin and that he did not request further DNA testing. Although the jury was not told that appellant had designated Dr. Benjamin as a possible testifying expert, the State argued that if Dr. Benjamin or any other expert disagreed with the State’s DNA experts, appellant would have called that witness to testify.
Both at trial and on appeal appellant claimed that this testimony and argument violated the attorney work-product doctrine and this was constitutional error as it impinged upon his Sixth Amendment right to counsel.
I.
Appellant was charged with the murder of Darrell North, who was found stabbed to death at his construction-site trailer. Mr. North had suffered over “50 distinct sharp force wounds” to his head, face, back, chest, shoulders, and torso. Suspicion focused on appellant who, along with Mr. North, failed to keep a scheduled meeting with a pool-construction customer on the evening of the murder. DNA tests tied blood found on the floor and furniture at the crime scene, as well as on the victim’s pants, to appellant. The statistical probability of this DNA being that of another Caucasian male was one in 41.7 million.
After appellant was charged, the State filed a Motion for Discovery of Expert Witnesses asking for the name and address of any expert witnesses that the defense might call at trial. Appellant later filed a motion for independent examination of the DNA evidence and requested the trial court to “enter an order permitting Robert Benjamin to review and examine all reports and testing already performed by William Watson for purposes of deoxy-ribonucleic acid (DNA) testing and comparisons,” as well as independent testing “if necessary.” The trial court granted appellant’s motion. Less than a month later, appellant formally designated “Dr. Robert Benjamin with the University of North Texas Department of Biological Sciences” as a potential defense expert witness. The State then designated eleven potential expert witnesses. Several months later, the trial judge granted a joint request by the State and appellant to submit hair samples from the murder victim, appellant, and Donald Fortenberry, another possible suspect, as well as fingernail scrapings from the murder victim, for additional DNA testing. This additional DNA testing excluded Mr. Fortenberry, but included appellant.
Immediately before the State’s first DNA expert testified at trial, appellant made a motion in limine to bar any mention of Dr. Benjamin because his existence as a potential defense witness was irrelevant. “I think it goes into work product. If he takes the stand, that’s a different story.” The trial judge granted this motion. However, appellant’s cross-examination of William Watson attacked the validity of the DNA testing procedures and test interpretation. He suggested that (1) the PowerPlex 1.1 machine that Orchid Cell-mark (formerly GeneScreen) used to “run the gel” was not as good as the ABI-310
Before beginning his re-direct examination, the prosecutor approached the bench and argued that appellant had opened the door to the existence and role of Dr. Benjamin as a defense expert:
[I]t is the State’s position that due to their vigorous cross-examination as to the accuracy and methodology and technique of Mr. Watson’s analysis and subsequent opinions, that it has now become a relevant matter of redirect to demonstrate, first of all, that all of this witness’s work papers, and well as those of Ms. King [the State’s second expert witness], were sent to Dr. Benjamin for analysis and review, and that never at any time has their expert ever contacted these folks and requested any opportunity to discuss any alleged errors or mistakes in their work papers or protocol or secondly has there ever been any request for any additional testing of the samples that they have in fact done.
Defense counsel objected that he had not opened the door with his cross-examination and that any mention of Dr. Benjamin or his role in the case would violate the attorney work-product doctrine and appellant’s due-process rights. Defense counsel argued that it was part of his strategy to keep Dr. Benjamin out of the courtroom to prevent the State from arguing that “this guy is teaching me,” and that this “expert was appointed for them, and if there was anything incorrect about it, they could bring him in here and tell you about it, folks.”
The trial court noted, “So if I don’t allow it in, then at final argument I can hear the Defense standing up and saying, can you trust all of this evidence because it had all of these problems in it, so how is that fair to the State?” The court further noted that the State’s expert had sent his lab reports directly to Dr. Benjamin and that appellant had the right to call his expert if he wished. After further discussion, the trial court ruled that the State could ask its expert “if he knows Dr. Benjamin, how he knows him, how long he’s known him, ... was this witness aware that Dr. Benjamin was involved in this ease,” and whether Dr. Benjamin had ever requested any further testing.
Mr. Watson then testified, over objection, that he knew Dr. Benjamin, who was “eminently qualified”; he had delivered his notes and work papers to Dr. Benjamin; and he was not requested by Dr. Benjamin, or anyone acting for him, to retest any of the work Mr. Watson had done.
Jamie King, the State’s second expert, was also impeached with asserted deficiencies in the DNA testing process. She, too, then testified that she knew Dr. Benjamin and had taken a course from him. “I know he’s used as a defense expert many times.” She said that she sent him her bench notes and had e-mail exchanges with him. No one had asked her to retest any of the DNA material.
During closing argument, the State noted that the defense “attacked the DNA, and that’s fine. Let them attack it.” But, the State continued,
The Defense under our constitution ... has the right to issue subpoenas and use the power of the State and the government to compel people to appear.... They don’t have to bring witnesses, but they can do so if it behooves them.
And don’t you know, don’t forget this, if they had one person, one expert who knew anything about DNA and the testing procedures, they would have put*357 somebody on that witness stand today. ...
[Appellant’s objection overruled]
And don’t you know, Benjamin or anybody else, and Jamie testified, yes, all of these notes were sent to him. Now, do you think he just threw them in the trash? I think it’s probably reasonable to conclude that perhaps he looked at them. And don’t you know that if he had any quarrel whatsoever with the results these people at GeneScreen obtained, that he’d have decorated that witness stand and said, you can’t believe anything.
But all you have, ladies and gentlemen, with regard to their challenge for the DNA is [defense counsel’s] theories. That’s all you have. You have no experts who challenged them. It has gone unrefuted.
The jury convicted appellant and the court sentenced him to life imprisonment.
On appeal, appellant complained of the trial court’s ruling and the State’s argument. In its analysis, the court of appeals first noted that “a testifying expert’s identity, once disclosed, is not work-product.”
we believe that the testimony elicited by the State regarding Dr. Benjamin’s failure to request additional testing indirectly violated Pope’s work-product privilege because the testimony could have had the effect of disclosing Dr. Benjamin’s mental impressions regarding the absence of a need for further tests.6
The court of appeals concluded, however, that this was nonconstitutional error and harmless under Rule 44.2(b).
II.
The scope of the attorney work-product doctrine is sometimes confused with that of the attorney-client privilege. The attorney-client privilege is an eviden-tiary privilege and protects against the compelled disclosure of confidential communications.
if defense counsel’s efforts do not create or enhance the substantive information, that information — or the form in which it is preserved — does not become protected work product.16
That is, facts that are divulged by or exist independent of the attorney or his agents are not protected, but statements or docu
Under Texas civil law, the world of experts is divided into two parts: consulting experts and testifying experts.
If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing
The nature and extent of the work-product doctrine in Texas criminal cases is considerably less developed than it is in civil proceedings because there is very little pre-trial discovery in criminal cases.
On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.26
The rule explicitly refers to any expert that the party “may use” at trial; it is not limited to those that he actually “does use.”
Courts that have permitted some use at trial of the opponent’s de-designated expert have frequently disallowed any explicit mention that the expert was originally retained by the opponent.
With this general background, we turn to the situation in the present case.
III.
Here, appellant first requested that all of the DNA testing results and reports conducted by the State’s experts be sent to Dr. Benjamin. The trial court ordered the State to do so and the reports were sent to Dr. Benjamin. Second, appellant formally designated Dr. Benjamin as a potential testifying expert under article 89.14(b). Third, it was only at trial, immediately before the State’s first expert witness testified, that appellant requested that the prosecution be prohibited from mentioning Dr. Benjamin, claiming that the mention of his name as a designated expert witness would violate the work-product doctrine. The trial judge granted appellant’s motion in limine. Fourth, when appellant cross-examined the State’s first expert about his testing procedures, the testing equipment that he used, and the reliability of his test results, the trial judge concluded that the defense had opened the door to allow the State to ask its expert about Dr. Benjamin, his qualifications, his involvement in this case,
Appellant claims,
Allowing the State to introduce evidence establishing that Dr. Benjamin is an eminently qualified defense expert who was provided with all of the State’s DNA testing material was inadmissible for the same reason that evidence of his failure to request additional testing was: it could have no possible relevance other than to allow the jury to conclude that Dr. Benjamin reviewed the State’s DNA testing and concluded it was accurate.
But Dr. Benjamin was, at all times, a formally designated expert witness for the defense. He was never “de-designated.” His identity and qualifications were not protected by any work-product privilege.
Finally, the fact that the State’s experts did or did not receive a request from any person to retest their samples or send samples to an independent lab for retesting by someone else is not covered by the work-product doctrine.
Juries are always entitled to draw reasonable inferences from known, unprivileged facts, even though those inferences may have the effect of indirectly disclosing an attorney’s (or his agent’s) mental impressions. What the work-product doctrine protects is the production of material — documents, e-mails, letters, disclosure of conversations, and so forth — and statements that set out an attorney’s litigation strategy or opinions concerning the result of his investigation or that of his agents. It does not prevent the factfinder from making reasonable inferences from known facts.
Appellant also argues that public-policy concerns should forbid the State from mentioning the existence of his expert until and unless he calls that witness to testify at trial. He argues that a rule that permits the State to comment on the existence of such an expert and his failure to
In sum, the trial judge in this case did not abuse his discretion in these Rule 403 rulings because the prosecutor’s questions did not call for any disclosure of protected attorney work-product. The careful trial judge prohibited any explicit mention that Dr. Benjamin had been retained by appellant, a ruling that minimized the risk of any possible “Red Rover” unfair prejudice. And the fact that neither Dr. Benjamin nor anyone else had requested additional DNA testing is a simple fact known to the State’s experts that is both relevant under Rule 401 and non-prejudicial under Rule 403. Finding no attorney-work product error, we affirm the judgment of the court of appeals.
Notes
. Appellant's grounds for review state
1. Does admission of evidence of (1) the identity of a non-testifying defense expert witness, (2) the qualifications of the non-testifying defense expert witness, and (3) the fact that the non-testifying defense expert witness reviewed materials provided by the State's expert permit the jury to improperly infer that the non-testifying defense expert reviewed the State's expert’s*355 work and concluded that it was correct, in violation of the Sixth Amendment right to counsel and the corollary work-product privilege?
2. Does improper admission of evidence indicating that a non-testifying defense expert reviewed the State’s expert’s work and did not request additional testing amount to a violation of the Sixth Amendment right to counsel, or is it merely a violation of a non-Constitutional right?
. Pope v. State,
. Id. at 121-23.
. Pope,
. Id. at 121.
. Id.
. Id. at 121-23.
. Tex.R. Evid. 503.
. See West v. Solito,
the purpose of the attorney-client privilege is to promote the unrestrained communication and contact between an attorney and client in all matters in which the attorney’s professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding.
Id.; see also Austin v. State,
. See United States v. Nobles,
. See Occidental Chem. Corp. v. Banales,
. The Supreme Court explained the rationale for the doctrine in Hickman v. Taylor,
Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
Id. at 511,
. See Tex.R. Civ. P. 192.5; see also National Tank Co. v. Brotherton,
. See Axelson, Inc. v. McIlhany,
. City of Denison v. Grisham,
. 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 22.14 at 13 (2d ed.2001).
. Id. (citing Skinner v. State,
. The same is, to a large extent, true in the federal system. See, e.g., House v. Combined Ins. Co. of Am.,
Parties should be encouraged to consult experts to formulate their own cases, to discard those experts for any reason, and to place them beyond the reach of an opposing party, if they have never indicated an intention to use the expert at trial. Such a consulted-but-never-designated expert might properly be considered to fall under the work product doctrine that protects matters prepared in anticipation of litigation. ...
However, once an expert is designated, the expert is recognized as presenting part of the common body of discoverable, and generally admissible, information and testimony available to all parties.
Id. (citations omitted).
Fed.R.Civ.P. 26(b)(4) refines this distinction even more. It divides experts into four classes and deals separately with each. These categories are: (1) experts a party expects to use at trial; (2) experts retained or specially employed in anticipation of litigation or preparation for trial but not expected to be used at trial; (3) experts informally consulted in preparation for trial but not retained; and (4) experts whose information was not acquired in preparation for trial. See 8 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2029, at 428-29 (2d ed.1994).
. Tex.R. Civ. P. 192.3(e); see In re City of Georgetown,
. Tom L. Scott, Inc. v. McIlhany,
. Id. (holding that a settling party could not "assign” its experts to the opposing party, who then redesignated the experts from "testifying” experts to "consulting-only" experts).
. Tex.R. Civ. P. 192.3(e)(1), (2), (7).
. Id. at 192.3(e)(3).
. Id. at 192.3(e)(4).
. See Carmona v. State,
. Tex.Code Crim. Proc. art. 39.14(b). The pertinent phrase, “each person the other party may use at trial to present evidence under Rules 702, 703, or 705” is almost exactly the same wording as is used in Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure ("any person who may be used at trial to present evidence under Rules 702, 703, or 705”). We assume that the Texas Legislature, by following the wording of the federal rule, also intended to follow the federal interpretation of that wording. For a thorough discussion of the federal civil rule, the history of the work-product doctrine, its scope and applicability to expert witnesses, see Wright & Miller, supra note 18, §§ 2021-2033.
. See Stephen D. Easton, "Red Rover, Red Rover, Send that Expert Right Over”: Clearing the Way for Parties to Introduce the Testimony of Their Opponents’ Expert Witnesses, 55 SMU L. Rev. 1427, 1461 (2002) (“the Rule 26(a)(2)(A) disclosure is not a statement that an attorney will call an expert as a witness at trial. Instead, this disclosure is a required statement that the expert might be called as a witness at trial”).
. See, e.g., Doe v. Eli Lilly & Co.,
As a general proposition, ... no party to litigation has anything resembling a proprietary right to any witness’s evidence. Absent a privilege no party is entitled to restrict an opponent’s access to a witness, however partial or important to him, by insisting upon some notion of allegiance. Even an expert whose knowledge has been purchased cannot be silenced by the party who is paying him on that ground alone. Unless impeded by privilege an adversary*361 may inquire, in advance of trial, by any lawful manner to learn what any witness knows....
Id. at 128 (citations omitted).
Article 39.14 of the Code of Criminal Procedure does not provide for mandatory depositions of experts, interrogatories, disclosure of reports or the whole host of other discovery mechanisms available in civil proceedings. That failure, however, does not imply that the work-product doctrine necessarily continues to protect otherwise discoverable materials once the State or defendant designates an expert witness. As noted by Professor Ea-ston, "[a]fter an expert has been disclosed by the retaining attorney, muzzling that witness may be unfair to the opposing party for several reasons,” one of which is that "a party ordinarily should be able to count on the availability of the testimony of a person who has been declared to be a potential witness at trial.” Easton, supra note 27 at 1478.
Article 39.14(a) provides for limited pretrial discovery by the defendant of certain material in the State’s possession. This article explicitly protects "the work product of [the State’s] counsel in the case and their investigators and their notes or report.” Presumably, the trial court concluded that written reports by those persons who have been formally designated as a potential expert witness are not protected by the work-product doctrine. Otherwise, the trial court would not have ordered the State to send its experts’ written notes and DNA reports to Dr. Benjamin.
.See generally, Easton, supra note 27. The term "Red Rover” refers to the children's playground game in which one team "calls over” a member of the opposing team who must try to break through the hand-holding members of the calling team. If that person cannot break through the human chain, he becomes a member of the calling team. Id. at 1437 n. 49.
. Compare id. at 1438-39 & n. 55 (collecting cases) with id. at 1463 (noting that, under the federal rules of civil procedure, there is no mechanism to "de-designate” a previously designated expert witness and arguing that there should not be). Several Texas civil cases have held that a "testifying expert [may] be ‘de-designated’ so long as it is not part of ‘a bargain between adversaries to suppress testimony’ or for some other improper purposes." In re Doctor's Hosp. of Laredo, Ltd.,
. Easton, supra note 27 at 1439-47.
. See Durflinger v. Artiles,
. See, e.g., Knoff v. American Crystal Sugar Co.,
. See, e.g., Noggle v. Marshall,
. Riddle,
. See, e.g., House v. Combined Ins. Co. of Am.,
. See Peterson v. Willie,
. Granger v. Wisner,
. See State v. Hamlet,
. The trial judge should be complimented for being remarkably fast on his feet in minimizing the risk of prejudice under Rule 403 by prohibiting the State from explicitly stating that Dr. Benjamin had been retained by appellant.
. See Tex.R. Civ. P. 192.3(e); Fed.R.Civ.P. 26(a)(2)(A); see also House v. Combined Ins. Co. of Am.,
. See Carmona v. State,
. Id.
. Morris v. State,
. See, e.g., Morris,
. Similarly, Dr. Benjamin's "eminent” qualifications and professional standing were facts known to the State's experts — they were, after all, his former students — well before defense counsel retained him as a potential expert witness. And Dr. Benjamin’s professional credentials existed independent of defense counsel’s act of retaining him or any work-product strategy or conclusions that might have been developed on appellant’s behalf. The only issue that the trial court, court of appeals, or this Court is asked to decide is whether Dr. Benjamin’s existence and qualifications are protected by the work-product doctrine or the Sixth Amendment right to counsel. Whether the trial court might have considered the validity of some other, unrelated objection at trial is not before us because such an objection was never made.
. Appellant states that "[tjhere is no doubt that Dr. Benjamin's 'conclusions were the work product of defense counsel and would never have been provided to the prosecutor.' See Taylor v. State,
. Dovel v. Walker Manuf.,
. Pope,
. Indeed, the court of appeals appears to have recognized this fact as it noted that appellant's
assertion that the jury could have only come to the conclusion that the defense’s expert agreed with the State’s experts is a logical conclusion that the jury could have reached from admissible evidence; that is, there was a DNA expert who reviewed the state’s materials but was not called as a witness by the defendant.
. See Patrick v. State,
.Jackson v. State,
. Appellant’s Brief at 14-15.
. See, e.g., Williams v. State,
.Other acts, such as a formal request that certain materials in the State’s possession be shown to or shared with a particular expert, will have the same effect of publicly disclosing the existence of an expert who is more than a consultant, but less than a formally designated expert witness.
Concurrence Opinion
filed a concurring opinion.
I concur' in the judgment of this Court, but not its reasoning. It is permissible to argue to the jury that the defendant did not present witnesses to contradict testimony offered by the state. It is not permissible to select a potential, but uncalled, witness such as Dr. Benjamin, tout his knowledge, experience, and standing among his colleagues and then argue, solely because the defendant did not call him as a witness (a circumstance that could have many causes), that even that eminent scholar did not dispute the state’s evidence. Such tactics constitute bolstering of the testimony of the state’s witnesses. The trial court erred in admitting such testimony and in failing to curtail the state’s argument about it. The court of appeals was correct in finding error and that the error was statutory and harmless. Tex.R.App. P. 44.2(b). I would affirm the judgment of the court of appeals and its reasoning.