I am working on an Atkins (mental retardation) post-conviction writ. The defense has recently had their guy tested and apparently the testing did not fare well for them because they've indicated they will not be using the testing at the hearing and are going to try and block us from testing the defendant now. Not only do I plan on testing him, but I would like to obtain their test results. Seems to me in a post-conviction Atkins setting they shouldn't be able to hide the ball like that (although concededly they could do this if this were a trial where the issue was guilt-innocence/punishment). Any ideas?

In the absence of testimonial use of the expert's opinion, it is possible that a work-product privilege would apply - at least Skinner v. State, No. 72,131 (Tex.App. Dist.1 05/21/1997)would suggest this to be the case. But others may locate more relevant caselaw.

On the other hand, and in the unlikely event you are blocked from obtaining same, I am not convinced that such data is needed. Any competent forensic psychologist could conduct an independent examination of the defendant's present cognitive abilities (in a circumstance wherein he/she has no incentive to do well) and review, as well, the historical material which, according to Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 02/11/2004), is essential to the establishment of such a diagnosis.

flj

Thanks for the response. Yes, I agree that our testing should be enough if it uncovers what I think it will. And they're going to have a hard time explaining at the hearing why they aren't relying on their own testing. I was just wondering if it is typical for the defense to do this in these Atkins hearings (this is my first one) and how the issue has been handled by others. In my case, they are calling a second expert to testify, and presumably he will not have seen this testing so that I can't get access to it on cross-x.

Laura, serve their expert with a subpoena duces tecum before your hearing and make him bring all his testing data.

Lee, I was thinking about doing just that. However, since the testifying expert is not the same expert who did the testing, do you think I still have grounds to subpoena the consulting expert's tests? (work product / attorney-client issues?) On the other hand, I was thinking I could argue that the actual IQ tests themselves are not work product. So if I ask just for the testing sheets, scores, etc. and not the experts notes and reports, does that eliminate the problem?

I feel that if the issue is mental retardation and he has tested the defendant, he is not only an expert witness, he is now a FACT witness as well and subject to subpoena and compelled testimony on everything within his personal knowledge. The hard copies of his tests and other supporting data are information that is obviously relevant to the central issue in the case. If there's an IQ test there that shows the defendant scoring at a non-MR level, I can't imagine that could ever be construed as priviliged or work product.

I agree. I don't think they should be able to shield those kinds of test results in an Atkins setting.

I may have found a case on point:

Pope v. State, No. 2-03-195-CR (Tex.App. Dist.2 12/23/2004)

A defense DNA expert was provided evidence but not called to testify by the defense. Over the objection of defense counsel, the State called the expert..the defense claimed work-product privilege was violated�here is what the court said:

�Article 39.14 of the Texas Code of Criminal Procedure addresses the discovery of work-product in a criminal case. Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2004-05). Article 39.14(a) provides that the "work-product of counsel in the case and their investigators and their notes or report" is exempt from discovery. Id. art. 39.14(a). However, the Texas Code of Criminal Procedure also provides that a trial court may order disclosure of the "name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705" of the Texas Rules of Evidence. Id. art. 39.14(b). The State argues that because the Code of Criminal Procedure in article 39.14(a) acknowledges that a party's work-product is exempt from disclosure, while at the same time providing for the discovery of a testifying expert's identity in article 39.14(b), the Texas legislature has, by implication, declared that a testifying expert's identity is not privileged work-product. We agree that a testifying expert's identity, once disclosed, is not work-product.�

Ergo, the defense expert could be called and compelled to testify. And, there is no question but that if compelled to testify, his data could be obtained.

Pre-trial motions should work out in your favor.

flj

Thank you. I will definitely take a look at that case--LP