Defendant's confession is ruled inadmissible because his waiver was not properly done.

Defendant puts expert on the stand at guilt to testify (based on a personal evaluation of the D) that the defendant could not form the requisite mens rea. The confession clearly rebuts the expert's testimony. Can we use it on cross?

The confession is videotaped so there is no doubt about coercion or voluntariness. I'm thinking it comes in under Soria/Lagrone which says the minute that expert hits the stand, the Fifth Amendment is waived. . . .

Don't Soria and Lagrone provide more support for the idea that the trial court could order the defendant to submit to a examination by a State expert? See U.S. v. Davis, 93 F.3d 1286, 1295 (6th Cir. 1996) (although federal rules do not authorize compelling examination to rebut diminished capacity defense, trial court has inherent authority to do so); U.S. v. Halbert, 712 F.2d 388, 390 (9th Cir. 1983) (rules authorize compelled examination to rebut diminished capacity defense).

But they're based on the notion that D waives his 5th Amendment rights when he testifies, basically, through an expert who has personally examined him.

Now, if the defendant who took the stand, we could impeach him with his prior statement as long as it was voluntary, under 38.22, � 5.

By analogy, shouldn't a defendant who testifies through an expert be subject to the same cross?

To use a confession against a testifying defendant, you've still got to satisfy 38.22. Whiddon v. State, 492 S.W.2d 566 (TCA 1973); Madden v. State, 691 S.W.2d 688 (TCA 1985).

The argument I think you are making is that the confession is either part of the the underlying facts or data upon which this expert bases his opinion, in which case you would want to go into it under Rule 705(a), or it should have been and was not, in which case you would want to use it to impeach his faulty process in developing his opinion.

The problem you run into there is in 705(d): "When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request." You might be able to get into the fact that their expert did, or did not, review the defendant's statement, but the statement itself is probably out.

Your safest option might be to ask the court to allow you to voir dire the expert outside the presence of the jury, confront him with the confession in that context. Assuming the judge agrees with you that the confession makes the contrary opinion clear, and the expert cannot explain why he holds the opinon he does, then his testimony might be kept out. If the defense never showed the confession to the expert, who knows, he might change his opinion.

Have you asked for your own expert to be permitted to interview the defendant? You are at least entitled to that, and assuming the defendant tells your expert the same thing he told the police, then you don't have to worry about using the defective confession. If he lies to your expert, then your expert can still use the confession as part of his underlying data, as well as the fact that the defendant has now apparently changed his story to coincide with the defense theory of the case.

I think that analysis is exactly right. I thought it would be risky to use the substance of the confession in cross even though it is so probative, but I couldn't put my finger on why.

We did have an expert examine the D for all sorts of things using the authority in Soria/Lagrone. But we were ordered not to talk to him about the crime (nice, right?).

Is their expert testifying that he could not formt he requisite mental state without having ever talked to the defendant about the crime itself? If so, that seems fertile ground for cross. If not, then you should probably go back to the judge and suggest that since their expert is testifying based on interviews with the defendant about the crime, your expert must be allowed access to the same source. For example, if their expert is essentially saying that "the defendant told me x about his mental state during the crime," then it violates Lagrone for your expert to be prohibited from asking defendant about that same information.

Under 38.23, even otherwise suppressed evidence is available for impeachment. Why not a confession, so long as it is truthful?

Agree with JB and WHM, and you should be able to cross and impeach his expert opinion based upon the contradictory nature of the confession vs. the expert's opinion.

Of course, as you undoubtedly know, doing so first outside the presence and hearing of the jury in a voir dire examination.

Just out of curiosity, what led to the confession being suppressed?

Here are a couple of cases that seem to support your idea.

State v. DeGraw, 470 S.E.2d 215, 222 (W.Va. 1996) ("the James decision is distinguishable from the present case because the State was offering the defendant's illegally obtained statement not to impeach a defense witness's testimony, but to impeach the contradictory statements the defendant made to that witness.").

See also id at 224 ("We agree with reasoning of the courts in Wilkes and Trzaska, that in these types of cases the real witness being impeached is not the defense witness, but the defendant.")

Wilkes v. United States, 631 A.2d 880, 885-91 (D.C. 1993) ("Thus the excluded statements, directly contradicting what Wilkes had told Dr. Saiger, provided the most relevant information available with which to probe the factual basis of Dr. Saiger's opinion. We hold that the truth-seeking function of this trial 'was better served by [allowing Dr. Saiger to be cross-examined about the statements] than the deterrent function would have been by [their] exclusion.'" ), cert. denied, 513 U.S. 848, 115 S.Ct. 143, 130 L.Ed.2d 84 (1994).