Question: Defense calling a psychologist for mitigation. They have specifically said that they will not offer any future danger testimony through him. The Judge has granted our Lagrone motion, but the defense is taking the position that if there is a 5th waiver under Lagrone, that it is limited only to mitigation and they have specifically instructed their psychologist not to talk to the defense psychologist about the facts of the capital murder on trial. They now want the court to order our psychiatrist not to ask any questions about the facts of the case and to limit his examination in other ways. Is anyone aware of any caselaw allowing the defense to limit what the State's psychiatrist may do to perform his evaluation under Lagrone? Any thoughts?

Your problem shows the tricks associated with psychiatric testimony. Would any psychiatrist, asked to diagnose or treat a patient, agree to accept only limited information before expressing a rather global opinion about their psychiatric health? Of course not. No more than a surgeon would agree not to examine the bottom half of the body before performing heart surgery.

The point is that the defense attorney has no business setting arbitrary restrictions on an expert's access to information. The restriction has nothing to do with the quality of the information and everything to do with hiding the ball from the expert.

So, your position should be: what sort of information does an expert in the field normally rely upon to form an acceptable opinion on the issue. I can't imagine that any reputable psychiatric expert would say that he would accept arbitrary limitations on the access to information. You then should argue that (1) the defense expert should not be accepted as reliable and (2), if he does get to testify, your expert should not have to agree that the opinion is reliable without key information from the defendant.

Also, remember that the whole basis of Lagrone was the fact that the defense cannot be allowed to have the defendant testify by proxy without the State's having an equal opportunity to cross-examine.

If their witness is going to testify based on evidence given by the defendant in a psychiatric interview, then your expert would have the right, not merely to ask him the same questions again, but also to ask him anything the expert might reasonably want to know in answering the same question. Since the special issues, including the mitigation question, are explicitly to be answered based on evidence "including evidence of the defendant�s background or character or circumstances of the offense," then the defense cannot reasonably argue that the circumstances of the offense are not relevant to mitigation.

And if they stamp their feet and start to cry about it, just remind them that it is not unfair to require a level playing field. They shouldn't be allowed to limit cross-examination by proxy any more than they would be able to if he took the stand.