Non-testifying Experts' Work Privileged, Georgia Supreme Court Rules

Attorney-client privilege extends to communications between defendants and their attorneys’ expert non-testifying consultants, the Georgia Supreme Court has ruled in a 6-1 decision, reversing the a murder conviction of an admitted killer, Hemy Neuman. The case may help clarify Georgia criminal procedure, but privilege for non-testifying experts, in criminal or civil matters, is hardly uniform across jurisdictions.

Neuman was an engineer with GE Energy who killed the husband of a woman he had hired at GE and with whom he was suspected of having an affair. Neuman was examined by a psychologist, Dr. Peter Thomas, and another mental health specialist who were retained by Neuman’s attorney and later held a meeting with the specialists together in the jail where he was then being held.  Before that meeting in jail, Neuman signed a form stating that the expert’s examination of him was "not confidential" and that anything discussed could be included in reports or disclosed in court.

At trial, for the defense, a forensic psychiatrist, Dr. Tracey Marks, and a forensic psychologist, Dr. Adriana Flores, testified that Neuman was mentally ill and legally insane.

For the prosecution, forensic psychiatrist Dr. Pamela Crawford with the South Carolina Department of Mental Health, and psychologist Dr. William Brickhouse, the mental health director at the DeKalb County Jail where Neuman was held, testified that Neuman was faking his symptoms of mental illness.

The prosecution made a motion for discovery of Dr. Thomas’ notes and other records, which the trial court granted over the objections of the defense.

On appeal, Neuman’s attorneys argued that they never intended the experts to testify. Neuman attorney Scott Key argued that because "those records were turned over to the state by subpoena, it bolstered the state’s idea that Mr. Neuman was malingering.”

In his dissent, Georgia Supreme Court Justice Harold Melton focused on the form that Neuman signed in the jail. Melton wrote: "The attorney-client privilege protects communications between the client and the attorney that are intended to be confidential; the protection does not extend to communications which are not of a confidential nature."

The court’s majority opinion notes that the attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law." However, prosecutorial discovery and use of defense’s non-testifying expert information has been allowed in many criminal cases across the country in the past, although some courts have refused.¹

For example, in the Illinois case of People v. Speck,² the defense had hired a fingerprint expert who evaluated evidence at the scene of the crime. At trial, the prosecutor called the fingerprint expert to testify. The defence argued attorney-client privilege. The Illinois Supreme Court disagreed, holding that a "witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice. " The privilege only pertained to communications between the attorney and the expert, not the expert’s opinion.³

Yet in North Carolina in State v. Dunn,⁴ nearly the opposite opinion was rendered . In Dunn, the defense hired drug-testing experts to conduct independent lab tests on a suspected controlled substance found in the defendant’s possession. At trial, the defense did not introduce the experts’ test results or call them to testify, but instead the State compelled the experts to testify. The North Carolina Court of Appeals ordered a new trial, ruling that the trial court erred in allowing the State to compel the experts hired by the defense to testify. "[T]he trial court infringed upon the defendant’s Sixth Amendment right to effective assistance of counsel, and unnecessarily breached the work-product privilege," the appellate court ruled.⁵ 

In civil matters, attorney-client privilege for non-testifying experts is more uniform. If the non-testifying experts act as agents of the attorney, their communications have generally been covered by the attorney-client privilege, though not always.

A number of U.S. and state supreme court decisions have helped clarify when privilege exists in relation to expert witnesses, with the consultant’s function often the tipping point. Consultants hired as an arm of the attorney to interpret information gained from defendants and to form that information into a usable argument by their attorneys in rendering legal advice have generally been found to have their work-product protected; those consultants hired only to collect factual information and determine the cause of an event have generally not.⁶

A twist to the general application of attorney-client privilege in civil cases is that, under Rule 26 of the Federal Rules of Civil Procedure, an opposing party may get access to an attorney’s work product if the party can show that it "has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means".⁷

Experts in civil or criminal matters should not assume attorney-client privilege and/or work-product protections. Preserving them requires cautious engagement.