Our office is in the middle of a capital murder trial, and we have retained Dr. Richard Coons as an expert for the punishment phase. The defense has waffled on us as to whether or not they are going to call an expert witness such that LaGrone would be implemented. Our current inclination is to call Dr. Coons in rebuttal regardless of what the defense does in calling an expert witness or not, but since we cannot talk to Dr. Coons about his possible examination of the defendant unless and until the defense expert testifies, we are worried that the defense will try to rub it in that Dr. Coons will not be basing his opinion on a personal examination of the defendant.

Here is the question: Is the fact that the defense makes the argument with Dr. Coons that he has not interviewed the defendant (or at least since he would not be able to testify about it until a defense expert does), does that open the door to us arguing that the reason that Dr. Coons cannot base his opinion on that interview is because the defendant has invoked his 5th Amendment rights?

I know that this is kind of a convoluted question, but we just do not want the defense attorneys to mislead the jury into thinking that Dr. Coons is not basing his opinion on an actual interaction with the defendant because he is "incompetent" to do so, but rather because the defense would not allow him to.

Any thoughts?

You can do a couple of things: first, I would move the judge to order that the State's expert be allowed to interview the defendant if the defense expert is going to testify on the basis of an interview. That should be granted, and you should be permitted to inquire as to whether such an interview has been done at that time. Then take the expert for the defense on voir dire before he testifies (assuming they continue to say he has not interviewed the defendant) and make sure he swears he has not done an interview. Then all is well.

If you learn that he has done an interview, then object, ask that his testimony be disallowed unless the defendant consents to an interview with your expert. Then ask for a recess until it can be done. The court should either disallow the witness or recess for you to get your expert with the defendant.

Yes, but the problem is that we do not want the defense to argue that Dr. Coons is basing his opinion on records and not a conversation with the defendant when the reality is that he CANNOT speak with the defendant unless the defense allows him to or subject to a LaGrone motion. We are trying to figure out a crafty way of explaining that...

You may be able to ask Coons: "Would you have preferred to interview the defendant prior to testifying here today?" He will of course say yes.

"Was the defendant ever available to you for such an interview?" He'll say no. Such a questions should be proper under Stoker v. State, 788 SW2d 1, 17-18. (The question there was "Dr. Grigson, had the defense attorneys allowed you to examine Mr. Stoker?" The CCA held the "the question asked by the State on redirect was intended to explain the reason why such an examination was not conducted. We do not find that the question was manifestly intended, or was of such a character that the jury would naturally and necessarily take it to be a comment on the accused's invocation of his constitutional rights."

That's very helpful. I just pulled the case and am going to Shepardize it to make sure it is still good law. Thanks so much!