Defense counsel obtained funds to hire a psychiatrist in an injury to a child case. We were not privy to the defense strategy as per Ake v. Oklahoma.

The victim is in CPS care, and I received a strange call from the defense wanting to know the victim's whereabouts so her psychiatrist can do an evaluation on the victim.

I know you can't do this, but does anyone know where I can find the law to prevent this? Thanks.

The examination sought seems very similar to that found to have been improperly ordered in State ex rel. Wade v. Stephens, 724 S.W.2d at 144. Certainly the logic of that case concerning the limits of art. 39.14 CCP appears applicable. I have a similar situation where the victim of alleged sexual assaults by her father was removed by CPS from the home. Now the defendant wants us to provide information concerning her whereabouts and medical providers so that he can obtain or go fishing for evidence that might impeach her claims. So far we have succeeded in arguing that CPS is not part of the prosecution team (meaning the info requested is not in our possession) and that the medical records are privileged or confidential. The defendant went so far as to ask the court to declare that his wife would have authority to request release of the information on behalf of her daughter (though CPS is the managing conservator). So I would also like to hear from anyone who has faced similar difficulties.

You might also look at the recent case that the CCA considered, in which it granted the state's mandamus to prohibit a district judge from ordering DNA testing of the state's evidence just because the defense wanted it done and was willing to pay for it. Seems that may have some application here -- the defense can't root around in our evidence (which includes or witnesses brain) without some statutory authority to do so. OK, someone will have to help me out with the name of the case. It's not even 2 months old, and I can't conjure it up.....

I have faced this issue often enough that I have written a bench brief addressing this issue. If you would like a copy of it, email me at:

dadams@co.fort-bend.tx.us

or call me at: 281-238-5186.

The case law all supports the premise that the Cout is unable to order this.

Rob, you're thinking of Jessie Joe Patrick, 2002 Tex. Crim. App. LEXIS 148 (Sept. 11, 2002)

For additional support, a federal court has found there is no constitutional violation when a judge denies the defendant's request for a defense psychiatric exam of a child victim. For details, click here.

Okay, JB, this must be some kind of record, reviving a 3 1/2 year old thread . . .

Well we just had a similar discussion on 5/23, maybe in John's defense he was looking for that new thread and drug this one from the archives.

No need to defend. Rolater is just feeling a little left out. He's just jealous he has an actual life that doesn't require him to remember such details.

. . . all I did was not another Bradley milestone!