Can Non-Testifying Defense Experts Be Subpoenaed by the State?

As defense attorneys prepare for trial they frequently reach out to experts to determine the strengths and weaknesses of their client’s case and to gain a better understanding of the evidence. In fact, proper preparation for a trial often demands that an attorney assemble information by speaking with experts in an effort to comprehend the complex forensic, medical, or other scientific evidence involved in the case. Experts can be useful tools during the early stages of trial preparation to develop a trial strategy and are often relied upon by defense attorneys at trial to rebut the State’s evidence. In instances where a particular expert’s findings may actually harm the defendant’s case, the defense attorney may choose to not call that expert to testify.

Under the North Carolina discovery statutes, defense attorneys do not have to disclose to the State which experts they consult or hire unless they intend to call the expert to testify at trial. N.C. Gen. Stat. § 15A-905. However, when the defense intends to call an expert to testify, that expert’s report must be made available to the State through pre-trial discovery and the expert will be subject to cross-examination by the State, if called to testify by the defense.

The issue of whether to allow the State to subpoena non-testifying defense experts was decided in State v. Dunn, 154 N.C. App. 1 (2002). In Dunn the defense retained experts to conduct independent lab tests on a suspected controlled substance found in the defendant’s possession but ultimately did not introduce the results of the tests or call the experts to testify. Instead, the State compelled the experts previously retained by the defense to testify to their findings on the State’s behalf. The Court of Appeals ordered a new trial on the grounds that the trial court erred in allowing the State to compel testimony from experts hired by the defense. In doing so, the Court of Appeals stated that “the trial court infringed upon the defendant’s Sixth Amendment right to effective assistance of counsel, and unnecessarily breached the work-product privilege.” Id. at 17.

Sixth Amendment Right to Effective Assistance of Counsel

If the State could subpoena non-testifying defense experts, the Sixth Amendment guarantee of the right to effective assistance of counsel would be severely impaired. Undeniably, consulting with experts is critical to an attorney’s ability to be effective counsel. As noted in State v. Dunn, to be effective counsel, an attorney must enjoy a certain degree of privacy when preparing for a case. Attorneys must be able to consult with experts to gather information, determine the relevant facts, and prepare a case theory without the concern of these experts testifying on their opponent’s behalf. If defense attorneys were aware that the experts they hire could be subpoenaed by the State, attorneys could be less likely to disclose information that is harmful to their client’s case. An atmosphere in which defense attorneys are apprehensive about sharing crucial but incriminating information with their experts can be detrimental because experts will be operating based on incomplete facts and data. This practice could foster a system in which experts reach false or partially false opinions due to incomplete data.

Furthermore, if the State were allowed to subpoena non-testifying defense experts, this could be devastating to defense attorneys’ ability to effectively prepare for trial. Defense attorneys would be forced to choose between consulting with experts to obtain a complete and unbiased assessment of the State’s evidence on one hand, and the fear of creating a potential government witness on the other. As expressed in State v. Dunn, the concern is that defense attorneys may avoid hiring certain experts that do not substantially contribute to their client’s case. Or defense attorneys may be motivated to only hire experts they believe are likely to lean their way.

Work-Product Protection

The work-product doctrine, codified in N.C. Gen. Stat. §§ 15A-904-906, protects the material prepared in anticipation of trial, including the reports and potential testimony of non-testifying experts, from discovery by opposing counsel. Through its application, the doctrine also serves to increase the amount of evidence heard by the jury by allowing defense attorneys to do their own investigative research beyond what was obtained by the State during discovery.

However, the Court of Appeals notes limitations in the work-product doctrine in State v. Dunn, labeling it as a “qualified privilege, not an absolute one” in which the State can discover non-testifying experts’ reports and compel testimony if it can show a special need for the testimony of the defendant’s expert and the defendant’s Sixth Amendment right to effective assistance of counsel is not overrun. Id. at 15.

Attorneys should be aware, however, that experts may not enjoy the same level of protection at sentencing, given the relaxed rules of evidence in sentencing hearings.  In State v. Warren, 347 NC 309 (1997), the North Carolina Supreme Court permitted the State to compel discovery of the defendant’s non-testifying expert’s report on the defendant’s prior bad acts for use in a capital sentencing hearing. The Supreme Court held that “even when the statutes limit the trial court’s authority to compel pretrial discovery, the court may retain inherent authority to compel discovery of the same documents at a later stage in the proceedings.” Id. at 325.

In conclusion, allowing the State to subpoena at trial the non-testifying experts hired by the defense would be devastating to defense teams. Defense attorneys should be aware of State v. Dunn and prepared to object on Sixth Amendment and work-product privilege grounds if the State does attempt to subpoena a defense expert to testify. Defense attorneys should also discuss this restriction with the experts they hire to avoid problems in instances where that expert is not called to testify by the defense and is contacted instead by the State.

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