"Only a foolhardy lawyer would determine tact-ical and evidentiary strategy in a case with psy-chiatric issues without the guidance and inter-pretation of psychiatrists and others skilled in the field." Edney v. Smith, 425 F.Supp. 1038, 1047 (E.D.NY 1976) aff'd 556 F.2d 556 (2nd Cir. 1976).

The purpose of this article is to assist the attor-ney in understanding the role of the mental health consulting expert so that funds for that consultant can be obtained in order to insure the client receives competent representation.

The sophistication of criminal defense practice continues to increase at least at the pace of other legal practice areas. In many ways the velocity of criminal defense work is greater due to draconian penalties, national performance standards, and the insights nonlegal disciplines bring to bear on culpability.

Several examples illustrate the dramatic increase in the intricacies of criminal defense work which has occurred in a relatively short period of time.

Twenty years ago only a handful of criminal cases involved experts testifying, and fewer in-volved defense experts testifying.

The increased penalties of the last two decades have forced defense attorneys to perform with greater proficiency, efficiency, and creativity as their clients face drastically decreased chances for probation, substantially less frequent parole, or imprisonment for the rest of their productive life.

Psychological and biological advances allow mental health experts to understand and communicate scientific explanations for the behavior of the accused. In turn, defense attorneys fight for new ways to present those complex insights to the fact-finders who decide culpability.

Scientific advances continue to be applied to evidence in criminal cases. Sophisticated fingerprint machines now quickly search exponential sets of prints, new breathtesting devices have been deployed, DNA analysis has arrived across the nation and in the Commonwealth. The complexity of these scientific domains is daunting to the nonspecialist criminal defense attorney.

Capital litigation has led the pack in increased difficulty in all phases - investigation, client relationship, motion practice, discovery, exculpatory and mitigating evidence, voir dire, venue, assistance of experts, persuasion skills. Capital federal habeas law and practice is labyrinthine. Sexual abuse cases present perplexing litigation puzzles. Drug cases dare effective representation.

This prominent reality of increased litigation complexity has two significant consequences:

The ABA Criminal Justice Mental Health Standards (1989) recognize several distinct roles which mental health experts fulfill:

1) scientific and evaluative;

2) consultative, and

3) treatment and habilitation.

It is tempting for the attorney to ask an expert who has been hired by the defense to investigate, evaluate, and testify to also serve as a consultant. Mixing these two distinct expert roles is a recipe for an alphabet soup whose letters spell d-i-s-a-s-t-e-r. See Sanborn v. Commonwealth, 892 S.W.2d 542, 549-50 (Ky. 1994) (minister in a capital case).

The mental health consultant's work is completely protected from discovery by the Sixth Amendment and the attorney-client privilege. See Miller v. District Court, 737 P.2d 834 (Colo. 1987). The testifying expert's work is not completely protected. See Hickman v. Taylor, 329 U.S. 495 (1947); Foster v. Commonwealth, 827 S.W.2d 670, 678-79 (Ky. 1992); KRE 705.

In the civil arena, some courts are willing to completely protect the consultation aspect of one expert who also performs the testifying function if the consulting work was done prior to the lawsuit. When "a consultant is hired for the purpose ...of evaluating claims and rendering consultative evaluation reports, his consultation reports are certainly within the orbit of privileged matters. Prelitigation consultative evaluations are encouraged; if there is no confidentiality with them, the procedure will not be utilized." Newsome v. Lowe, 699 S.W.2d 748, 752 (Ky. 1985) (preliti-gation consultative evaluation letter of doctor in medical malpractice case). Discovery "cannot encroach upon the attorney's work product or the attorney's or other representative's (here consultant's) mental impressions, conclusions, opinions or legal theories concerning the litigation." Id. See also Morrow v. Stivers, 836 S.W.2d 424, 428 (Ky.App. 1992). But one expert fulfilling dual roles is fraught with risks.

The ABA Standards discourage experts filling dual roles, and prohibit experts from simul-taneously serving in the testifying and consulting roles when they conflict with each other. ABA Criminal Justice Mental Health Standard 7-1.1 (a) states:

An expert who acts in the evaluative/testifier role has his work subject to discovery by the opponent when the expert is called to testify. See Standard 7-3.8(b)(ii).

The consultative role does not expose the expert's work to any discovery by the opponent. "When providing consultation and advice to the prosecution or defense on the preparation or conduct of the case, the mental health or mental retardation professional has the same obligations and immunities as any member of the prosecution or defense team." Standard 7-1.1(c). See also Federal Rules of Criminal Procedure 16(b)(2).

Beyond discovery consequences, the two roles are very distinct. The Commentary to Standard 7-1.1 identifies representative tasks of the consulting expert:

It is clear why the loyalties of the two roles conflict. "Difficulties arise when professionals attempt to serve in the dual capacities of eval-uator and consultant. Ideally, these roles should be separated so that the objectivity of an evaluation is not contaminated...." Id.

While the Commentary to Standard 7-1.1 recognizes that practicalities may prohibit having two experts to fill both distinct roles, it limits how one person can fulfill both roles by requiring the consulting function to only occur after the evaluation function is complete. In the end, the Commentary warns that the "conflicting obligations of evaluators and consultants might war-rant an absolute bifurcation of these two roles." Id.

The Ethical Principles of Psychologists and Code of Conduct, American Psychologist (Dec. 1992) provide that a forensic psychologist insure conflicting roles and their consequences are clarified before employment to avoid compromise and misleading:

"7.03 Clarification of Role - In most circum-stances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters. When psychologists may be called on to serve in more than one role in a legal proceeding - for example, as consultant or expert for one party or for the court and as a fact witness – they clarify role expectations and the extent of confidentiality in advance to the extent feasible, and thereafter as changes occur, in order to avoid compromising their professional judgment and objectivity and in order to avoid misleading others regarding their role."

With the substantial hurdles of different discovery consequences and conflicting duties, no expert can properly fill both the role of evaluator and consultant on the same case. No competent criminal defense attorney will risk revealing confidential information by asking experts to provide two conflicting functions.

It is axiomatic that "No man can serve two masters. He will either hate one and love the other or be attentive to one and despise the other." Matthew 6:24

When a nonlegal expertise is relevant to a criminal case, indigent defendants are entitled to not only an expert who will testify on behalf of the defense but also to an expert who will advise and consult on tactics and strategy.

In Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995), a case involving an insanity defense, the Court held in a unanimous opinion written by Justice Wintersheimer that due process required defense access to two distinct expert functions:

1) Presenting Defense Case. An "expert to conduct an appropriate examination and assist in the evaluation, preparation and presentation of the defense," Id. at 386, and

2) Challenging State Expert. "The assistance of an expert to interpret the findings of the expert used by the prosecution and to aid in the presentation of cross-examination of such an expert." Id.

To satisfy due process in an insanity case, Binion held "there must be an appointment of a psychiatrist to provide assistance to the accused to help evaluate the strength of his defense, to offer his own expert diagnosis at trial, and to identify weaknesses in the prosecution's case by testifying and/or preparing counsel to cross-examine opposing experts." Id.

The United States Supreme Court has clearly communicated that when a defendant is entitled to an expert the Constitution entitles the defense to consultation from an expert on how to cross-examine the prosecution's expert and uncover weaknesses in the state's case. Ake v. Oklahoma, 470 U.S. 68 (1985) recognizes that due process affords an indigent criminal defen-dant the right to both an evaluating expert and a consulting expert when a threshold showing of necessity has been met.

While courts and attorneys may contemplate these two distinct expert functions can be per-formed by the same expert, the functions are so inherently conflicting that one mental health expert can neither ethically nor practically perform both roles simultaneously.

Attorneys representing indigents are increasingly asking courts for funds to hire experts who will be defense consultants in cases in addition to funds for a second expert who evaluates and testifies in cases.

If a court is not persuaded to authorize funds for a consulting expert, other sources can be ex-plored. Universities and colleges have a wealth of experts, some of whom will assist pro bono to be of public service, to gain further experience in the criminal justice system, or to obtain data for publishing requirements. Forging cooperative ventures with these experts can prove to be win-win efforts for our clients.

The Fiend Unmasked: Developing the Mental Health Dimensions of the Defense, ABA Criminal Justice, Vol. 8, No. 2 (1993) at 22

ABA Criminal Justice, Standard 7-1.1

Sanborn v. Commonwealth, 892 S.W.2d 542, 549-50 (Ky. 1994)

Miller v. District Court, 737 P.2d 834 (Colo. 1987)

Hickman v. Taylor, 329 U.S. 495 (1947)

Foster v. Commonwealth, 827 S.W.2d 670, 678-79 (Ky. 1992)

Newsome v. Lowe, 699 S.W.2d 748, 752 (Ky. 1985)

Morrow v. Stivers, 836 S.W.2d 424, 428 (Ky.App. 1992)

ABA Criminal Justice Mental Health Standard 7-1.1

Standard 7-3.8

Federal Rules of Criminal Procedure 16

The Ethical Principles of Psychologists and Code of Conduct, American Psychologist (Dec. 1992), 7.03 Clarification of Role

Matthew 6:24

Binion v. Commonwealth, 891 S.W.2d 393 (Ky. 1995)

Ake v. Oklahoma, 470 U.S. 68 (1985)